Shire of Manjimup v Cheetham - [2010] WASCA 225

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SHIRE OF MANJIMUP -v- CHEETHAM [2010] WASCA 225

CORAM: BUSS JA
NEWNES JA
MAZZA J

HEARD: 13 AUGUST 2010

DELIVERED : 29 NOVEMBER 2010

FILE NO/S: CACV 143 of 2009

BETWEEN: SHIRE OF MANJIMUP
Appellant
AND
SANDRA ALICE CHEETHAM
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCOTT DCJ
Citation  :CHEETHAM -v- SHIRE OF MANJIMUP [2009] WADC 169
File No  :CIV 2233 of 2007

Catchwords:

Negligence - Duty of care of occupier - Occupiers' Liability Act 1985 (WA) - Respondent fell into culvert at night while crossing holiday site - Respondent was using torch - Whether appellant negligent in failing to erect barricade around culvert - Whether contributory negligence by respondent in failing to keep proper lookout

Legislation:

Civil Liability Act 2002 (WA)
Civil Liability Amendment Act 2003 (WA)
Occupiers' Liability Act 1985 (WA), s 5(1), s 5(4)

Result:

Appeal against finding of negligence by appellant dismissed
Appeal against finding that no contributory negligence by respondent allowed
Liability apportioned two-thirds to appellant and one-third to respondent

Category: B

Representation:

Counsel:

Appellant: Mr J Eller
Respondent: Mr R V Lonnie

Solicitors:

Appellant: John Eller
Respondent: Ian Watson Lawyer

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

Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Cheetham v Shire of Manjimup [2009] WADC 169
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 265 ALR 490
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362
Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10
Phillis v Daly (1988) 15 NSWLR 65
Shire of Gingin v Coombe [2009] WASCA 92
State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Tressider v Austral Stevedoring and Lighterage Co Pty Ltd [1968] 1 NSWR 566
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

BUSS JA: On 18 March 2003, the respondent broke her right leg when she tripped and fell into a culvert at the holiday and camping area in Manjimup known as Windy Harbour.
In the Windy Harbour grounds is a playground which is bordered by a spoon drain. Water run‑off from the playground collects in the drain and, by gravity, flows into the culvert and then into a drainpipe located under an unsealed road.
The appellant administers and operates the Windy Harbour grounds.
The respondent commenced proceedings in the District Court against the appellant. She alleged that the appellant was the occupier of the Windy Harbour grounds and that her injury was caused by its breach of a duty of care owed to her. The quantum of damages was agreed. There was a trial before Scott DCJ on liability. His Honour found that the appellant was liable to the respondent. He also found that the respondent had not been contributorily negligent.
The appellant appeals to this court. It alleges, in essence, that the trial judge erred in finding that it had been negligent, alternatively, in failing to find contributory negligence.
I have read the proposed reasons of Newnes JA. I agree with his Honour that the trial judge's finding that the respondent was not contributorily negligent should be set aside and, instead, a finding made that the respondent's damages should be reduced by one‑third for contributory negligence. I also agree with Newnes JA that otherwise the appeal should be dismissed. My reasons are as follows.

The material facts

The material facts are recounted by Newnes JA. I will not repeat them except to the extent necessary to explain my reasons.
I have attached a copy of two photographs of the accident site. These and other photographs were tendered at the trial as exhibit 1. Each of the attached photographs depicts, amongst other things, a post immediately abutting each side of the culvert and a rope on top of these posts. The posts and the rope were installed after the accident.

The appellant was the occupier of the Windy Harbour grounds

It was common cause in the appeal that at all material times the appellant was the occupier of the Windy Harbour grounds.

The appellant owed the respondent a duty of care

It was also common cause in the appeal that the appellant owed the respondent a duty of care.
At common law, an occupier owes a duty of care to any person whose presence on the premises, either individually or as a member of a class, is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises. See Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, 488 (Mason, Wilson, Deane & Dawson JJ); Phillis v Daly (1988) 15 NSWLR 65, 76 (McHugh JA); Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 [17] (Gleeson CJ), [102] (Hayne J).
Section 5(1) of the Occupiers' Liability Act 1985 (WA) (OLA) provides, relevantly, that the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers 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 is by law responsible, 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'.
In the present case, no argument was addressed to this court as to the juridical basis of an occupier's duty of care following the enactment of the OLA. See my observations in Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209 [20] (Martin CJ & Roberts-Smith JA agreeing); Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 265 ALR 490 [62] ‑ [63].
It is unnecessary, in this appeal, to resolve the point. There is no material difference, at least for the purposes of this appeal, between the formulation of the duty at common law and its expression in s 5(1).

The misunderstanding in relation to the Civil Liability Act 2002 (WA)

The Civil Liability Amendment Act 2003 (WA) was enacted in response to the Final Report of the Review of the Law of Negligence (the Ipp Report) which was submitted to the Commonwealth Minister for Revenue and Assistant Treasurer on 30 September 2002. Comparable legislation in response to the Ipp Report has been enacted in New South Wales, Victoria, Queensland, Tasmania and the Australian Capital Territory. See the Civil Liability Act 2002 (NSW), the Wrongs Act 1958 (Vic), the Civil Liability Act 2003 (Qld), the Civil Liability Act 2002 (Tas) and the Civil Law (Wrongs) Act 2002 (ACT).
The Civil Liability Amendment Act 2003 (WA) amended the Civil Liability Act 2002 (WA) (CLA) by introducing, amongst other provisions, s 3A and pt 1A, comprising s 5A ‑ s 5P. Part 1A, which is headed 'Liability for harm caused by the fault of a person', has been amended subsequently. Section 3A and pt 1A came into operation on 1 December 2003.
A remarkable feature of the primary proceedings in the present case is that the trial judge, counsel for the appellant and counsel for the respondent proceeded on the basis that pt 1A of the CLA, as introduced by the Civil Liability Amendment Act 2003, applied to the respondent's claim. This was wrong because the respondent's accident occurred on 18 March 2003 and s 3A and pt 1A (which did not operate retrospectively) did not come into operation until 1 December 2003.
Counsel for the appellant and counsel for the respondent continued to labour under this misunderstanding (it was reflected in the grounds of appeal and the written submissions) until I drew attention to it at the commencement of the hearing of the appeal. Both counsel then presented their oral arguments without reference to the CLA.

Occupiers: standard of care

The long title of the OLA reads:
An Act prescribing the standard of care owed by occupiers and landlords of premises to persons and property on the premises.
Section 4 of the OLA provides, relevantly, that s 5, s 6 and s 7 are to have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of, relevantly, dangers to that person 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.
Section 5(4) of the OLA provides:
Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to ‑
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(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.
Sections 6 and 7 are not relevant, for present purposes.
Section 5 of the OLA therefore has effect, in place of the rules of the common law, for the purpose of determining the standard of care applicable to the appellant as the occupier of the Windy Harbour grounds. The rules in question are embodied in s 5(1) and s 5(4). I have summarised s 5(1) at [12] above and set out s 5(4) at [21] above. The criteria in s 5(4) are relevant factors which must be taken into account by a court in determining whether an occupier of premises has discharged its duty of care. The rules embodied in s 5(1) and s 5(4) are an essential part of the legal framework within which a claim for breach of duty against an occupier is to be determined. See Smith [No 2] [53] ‑ [54].

The merits of ground 1 of the appeal

Ground 1 of the appeal alleges that the trial judge erred in that he 'failed to identify the nature and scope' of the duty of care owed by the appellant to the respondent.
Although the trial judge's analysis of the applicable legal principles was affected by his erroneous belief that the Civil Liability Amendment Act 2003 (WA) applied to the respondent's claim, it is apparent, on a fair reading of his Honour's reasons as a whole, that he properly defined the nature and scope of the duty of care.
The trial judge reproduced s 5(1) and s 5(4) of the OLA [35] ‑ [36].
His Honour said, in essence, that the standard of care applicable to an occupier is what (if anything) a reasonable person in the position of the occupier would do, in the circumstances, by way of response to a foreseeable risk of physical injury arising out of the condition of the premises [55].
A little later, the trial judge made detailed findings as to the facts that were 'relevant to the nature of any duty owed by the [appellant] to the [respondent] and whether the [appellant] was in breach of any such duty' [58]. The findings were as follows:
(a)the camping grounds in which the culvert was situated were a holiday facility;
(b)it was reasonably foreseeable that the camping grounds would be occupied and frequented by owners or lessees of huts and/or guests of various ages;
(c)the camping grounds included a grassed playground incorporating swings;
(d)the spoon drain and culvert had been in existence for many years;
(e)the telephone box used by the [respondent] to make a telephone call was the only public telephone box on the camping grounds;
(f)it was common place for persons at the camping grounds to walk across the playground and past the drain to the telephone box;
(g)there was only a few feet of walkway between the white post on the left hand side of the culvert (as one is walking towards the direction of the telephone box) and the culvert itself;
(h)at the time of the incident in which the [respondent] was injured there was a roped fence culminating in that white post which effectively shepherded those walking passed the culvert to that walkway;
(i)at night the only light in the vicinity of the culvert was the spotlight near the ablution block about 20 metres from the culvert. That light turned off automatically by a timer at 11.00 pm each night whereupon there was no direct lighting on the camping grounds which would illuminate the walkway used by pedestrians to pass the culvert or the culvert itself;
(j)the area between the unsealed road and the culvert sloped down to the culvert;
(k)a caretaker, Mr Old, was at the time of the incident in the employ of the [appellant]. He was employed as an on-site caretaker who was responsible for the ongoing maintenance of inter alia the culvert;
(l)the [respondent] had a torch which was on during the time that she walked across the playground, passed the culvert along the walkway to the telephone box. The light from the spotlight was then on and there was sufficient light, overall;
(m)the spotlight at the ablution block went off as she left the telephone box. She shone the torch in front of her as she retraced as she thought, her steps towards, and with the intention of going past the culvert on her way back across the playground [58].
His Honour then said:
I am satisfied that the risk to the class of persons who were residents and guests at the camping grounds (of which the [respondent] was one) of stepping into or falling into the culvert at night, particularly when the spotlight was off, was reasonably foreseeable to the [appellant].
It was foreseeable that there will be those in the camping grounds who would be in a relaxed holiday mode, be of differing ages and might walk or run or be in groups in circumstances where they or some of them may act inadvertently.
Persons walking across the playground to use the telephone in the route taken by the [respondent], would use the walkway near the culvert which was of a width of a few feet.
When there was no light from the spotlight even with a torch there is a foreseeable risk that depth and other perceptions are different from what they may be during the day such that the culvert might not be readily noticed even by a person exercising reasonable care [59] ‑ [62].
The trial judge found that there was 'a significant probability that harm would occur' to a person in the respondent's position who was endeavouring to walk across the playground at night, with the assistance of a torch but otherwise in darkness, after using the telephone, and that if harm occurred it may well be significant [64].
His Honour was of the opinion that there was 'no real burden in the [appellant] taking appropriate precautions to avoid this foreseeable risk of harm'. He said that covering the culvert and erecting a post and rail structure around or in relation to it was all that was reasonably required to discharge the appellant's duty [67].
In the circumstances, the trial judge was satisfied that the appellant had breached its duty of care [68].
It is apparent from his Honour's findings of fact and reasoning, considered as a whole, that, in substance, he determined the measure of the discharge of the appellant's duty of care by reference to the rules embodied in s 5(1) and s 5(4) of the OLA.
Ground 1 fails.

The merits of ground 2 of the appeal

Ground 2 of the appeal alleges that the trial judge erred in determining that the appellant had breached its duty in that he decided the issue 'in a retrospective manner rather than in a prospective manner'.
The trial judge said that the assessment of 'the existence and content of a duty of care is to be undertaken looking forward from a time before the occurrence of the injury giving rise to a claim, rather than backward from the time of the claim' [57]. His Honour cited the observations to this effect of Hayne J in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [105].
It is plain that the trial judge did not make any material error in directing himself on the proper approach to determining whether the appellant had breached its duty. His Honour's findings of fact and his conclusions do not indicate that he decided the issue in question in a retrospective manner. See, in particular, his Honour's reasoning at [58] ‑ [63].
Ground 2 fails.

The merits of ground 3 of the appeal

Ground 3 of the appeal alleges that the trial judge erred in that he failed properly to consider the issue of causation. The ground refers, in particular, to the question of whether, in the circumstances, 'any additional barricading of the culvert where the respondent fell would have influenced the respondent to have avoided her accident'. Ground 3 also alleges that 'to the extent such a finding has been made' his Honour failed to give adequate reasons.
The trial judge noted that the burden was on the respondent to establish that the appellant's breach of duty 'was causative of the harm sustained by her' [69]. His Honour then expressed his satisfaction that the appellant's breach did cause the respondent to suffer injury [70].
Earlier in his reasons, his Honour found, as I have mentioned, that all that was reasonably required to discharge the appellant's duty of care was covering the culvert and erecting a post and rail structure around or in

relation to it [67]. It is apparent, on a fair reading of his Honour's reasons as a whole, that he was of the view that a structure of this kind would have prevented the occurrence of the respondent's injury. There is no doubt, in my opinion, about the correctness of this view. On the balance of probabilities, the contemplated structure would have prevented the respondent from tripping and falling into the culvert.

It is well‑established that the reasons of a trial judge need not be lengthy or elaborate. I am satisfied that, in the circumstances, his Honour's reasons in relation to causation, as discerned from a fair reading of his reasons as a whole, were adequate.
Ground 3 fails.

The merits of ground 4 of the appeal

I agree with Newnes JA, for the reasons he gives, that ground 4 of the appeal has been made out, and that the agreed quantum of the respondent's damages should be reduced by one‑third for contributory negligence.

Conclusion

I agree with the orders proposed by Newnes JA.
NEWNES JA: This is an appeal against a decision of Scott DCJ in the District Court in which his Honour found that the appellant was liable in negligence for personal injury caused to the respondent when she fell into a culvert while staying at a holiday and camping area run by the appellant: Cheetham v Shire of Manjimup [2009] WADC 169. As a result of the fall, the respondent suffered injuries to her right leg. The trial was on the issue of liability only.

Background

On 18 March 2003, the respondent was staying at Windy Harbour, a holiday and camping area near Manjimup. Windy Harbour was at all relevant times maintained and controlled by the appellant. It contained a number of huts in which holiday‑makers and guests stayed. It also included a large open playground in front of the huts. The playground was bordered on its western and southern sides by Windy Harbour Drive. Windy Harbour Drive ran, in a curved L‑shape, south past the area of the huts and along the western boundary of the playground, and then east along the southern boundary of the playground and continuing beyond that in an easterly direction.

An unsealed road ran down the eastern boundary of the playground and terminated at Windy Harbour Drive, with which it formed a T‑junction. The unsealed road was separated from the eastern boundary of the playground by a line of white posts, between which a heavy rope was extended.
The playground was surrounded by a spoon drain, some 18 inches wide and 6 inches deep, into which water run‑off from the playground collected and, by the force of gravity, flowed into a culvert located on the boundary of the playground, on the western side of the unsealed road just before it formed the T‑junction with Windy Harbour Drive. Water from the culvert flowed into a drainpipe which took it under the unsealed road and in an easterly direction out to sea. The last of the white posts along the unsealed road was located a metre or so before the culvert. A phone box was located on the side of Windy Harbour Drive, just to the east of the T‑junction; that is, on the opposite side of the unsealed road to the culvert. The appellant had installed the culvert and was responsible for maintaining it. A diagram of the area went into evidence as part of exhibit 3 and is attached to these reasons.
The respondent had visited Windy Harbour on approximately 12 occasions prior to this occasion. On the day of the accident, the respondent and her husband had driven down after work, arriving at about 7.30 pm or 8.00 pm. Some time after the respondent's arrival, in the course of preparing a meal, the respondent realised that there would be insufficient cooking oil for the next day and decided to telephone her son's girlfriend to ask her to bring some oil when they came down.
Later that evening, the respondent and her husband, accompanied by their dog on a leash, proceeded to walk to the phone box for that purpose. As I have mentioned, the telephone box was located on Windy Harbour Road on the other side of the playground from the respondent's hut, just beyond the culvert. There were two ways of reaching it from the respondent's hut. One way was to walk around Windy Harbour Road. The other, and shorter, way was to cut diagonally across the playground. The respondent and her husband took the latter route.
The respondent was carrying a large torch which was switched on. At that time a spotlight on the ablution block, which was some 20 m from the culvert, was switched on and it cast light in the direction of the culvert and the telephone box. The respondent and her husband crossed the playground, walked past the culvert, and proceeded over the unsealed road to the telephone box. The respondent was aware of the culvert as she had walked past it many times previously.
As the respondent left the telephone box after finishing her call the spotlight on the ablution block, which was on an automatic timer to turn off at 11.00 pm, switched off. There was no other direct lighting of the playground or the area around the culvert. The respondent set out to retrace her earlier route, illuminating her way with the torch. She said she was shining the torch on the ground in front of her and was able to see the ground at least two or three metres ahead. The respondent gave evidence that she was looking where she was going when all of a sudden she fell into the culvert, breaking her leg. The respondent said that she did not see the culvert because it was dark, and the culvert was lower than the level of the unsealed road and the grass on which she was walking. She said she thought she had already passed the culvert when she fell into it.
The respondent brought an action for personal injury against the appellant in the District Court alleging that the appellant was in breach of its duty of care under the Occupiers' Liability Act 1985 (WA) (the Act). The appellant denied that it was negligent and, in the alternative, pleaded that the respondent's own negligence had contributed to the accident in that, among other things, she had failed to keep a proper lookout.

The findings of the primary judge

The primary judge found that the appellant was an occupier of Windy Harbour within the meaning of the Act. His Honour considered that there was no relevant difference between the nature or scope of the appellant's duty of care under the Act and at common law. His Honour referred to a number of decisions dealing with the duty of care owed by an occupier of land at common law and held that the appellant was under a duty to exercise reasonable care such that the camping grounds under its control were safe for users exercising reasonable care for their own safety [49]. He then referred to s 5B of the Civil Liability Act 2002 (WA) which provides, in effect, that a person is not liable for harm caused by their fault in failing to take precautions unless the risk was foreseeable, the risk was not insignificant and a reasonable person would have taken those precautions.
His Honour considered that in the circumstances it was foreseeable that residents or guests at Windy Harbour might step or fall into the culvert at night and suffer injury. Persons walking across the playground to use the telephone would pass between the culvert and the last white post along the unsealed road, a passage only a few feet in width. It was foreseeable that when the spotlight was off, depth and other perceptions would be different from those experienced in daytime so that the culvert might not be readily noticeable at night even to a person exercising reasonable care [62]. His Honour concluded that there was a significant probability that harm would occur to a person as a result of the unguarded culvert. He also found that there was no real burden on the appellant in taking appropriate precautions so as to avoid the foreseeable risk of harm. All that was reasonably required was a covering on the culvert and the erection of a post and rail structure around it [67].
His Honour concluded, in substance, that the appellant had breached its duty of care in:
(a)failing to ensure that the hole into which the respondent fell was cordoned off so as to prevent such injury;
(b)failing to have solar or electric lighting in the vicinity of the telephone box at that time in the evening;
(c)failing to reduce the slope of the shoulder of the road by the hole; and
(d)failing to eliminate a direct pedestrian path over the hole from the east/west direction.
The primary judge found that the appellant's breach of duty caused the respondent's injury and rejected the appellant's plea under s 5F of the Civil Liability Act that the risk posed by the culvert was obvious.
The appellant's plea of contributory negligence was also rejected by the primary judge. His Honour found there was no evidence that the respondent was doing other than keeping a careful lookout. He considered that the photographs of the scene admitted into evidence supported the respondent's evidence that the culvert was lower than the level of the unsealed road and the grass she was walking on. The only light source at the time of the accident was the torch she was carrying. The primary judge considered it was understandable that without the lighting from the spotlight there may have been difficulties of perception at night which made it more difficult for the respondent to realise she was marginally off course when retracing her steps past the culvert [102].

Grounds of appeal

It is unnecessary to set out the grounds of appeal in full. In substance, the appellant contended by grounds 1 and 2 that the primary judge erred in finding that the appellant had breached the duty of care it owed to the respondent.
The appellant asserted by ground 3 that in considering causation the primary judge had erred in failing to consider whether any additional barricading of the culvert would have avoided the accident and, to the extent such a finding was made, failed to give adequate reasons for that finding.
By ground 4, the appellant alleged that the primary judge had erred in finding that there was no contributory negligence on the part of the respondent.

The disposition of the appeal

Grounds 1, 2 and 3

The first three grounds of appeal can conveniently be considered together.
It is necessary, before turning to the particular issues which arise under these grounds, to mention that the case below was argued on the assumption that s 5A to s 5L inclusive of the Civil Liability Act applied. The attention of the primary judge was not drawn to the fact that, as counsel conceded on the appeal, those provisions did not come into effect until 1 December 2003, some eight months after the accident occurred, and have no retrospective effect. To the extent the decision of the primary judge proceeded upon the basis that those provisions applied, it therefore proceeded upon a false basis. However, as the matter was argued on the appeal, I do not think anything turns on that.
As I have mentioned, the primary judge found that the appellant was an occupier of Windy Harbour within the meaning of the Occupiers' Liability Act. That finding is not challenged. Nor is any issue taken with his Honour's conclusion that, in the circumstances of this case, there is no relevant difference in the nature or scope of the duty of care under the Act and at common law. As mentioned earlier, having reached that conclusion his Honour found that the appellant owed to the respondent a duty to exercise reasonable care such that the camping grounds under its control were safe for users, such as the respondent, exercising reasonable care for their own safety [49].
The primary judge recognised, however, that the qualification that the duty was owed to persons 'exercising reasonable care for their own safety' had been questioned by McLure P in Shire of Gingin v Coombe [2009] WASCA 92 [113] ‑ [115], at least in relation to the duty of care arising under s 5 of the Act. His Honour went on to say that nothing turned on it in this case [51]. For present purposes, I do not think it is necessary to consider whether it forms a necessary part of the formulation of the duty of care.
The relevant duty of care under s 5(1) of the Act was a duty to exercise such care as was in all the circumstances reasonable to see that a person entering the premises would not suffer injury in respect of dangers which were due to the state of the premises. When formulated in that way the duty is not, as the primary judge found, materially different in the present case to the duty on an occupier at common law. At common law an occupier owes to any lawful entrant a duty to exercise reasonable care to avoid a foreseeable risk of injury arising out of the condition of the premises: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, 488; Phillis v Daly (1988) 15 NSWLR 65, 76; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 [17].
Whether an occupier has discharged its duty of care is dealt with in s 5(4) of the Act. Without limiting the matters relevant to that enquiry, a court is required by that provision to consider:
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(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.
Again, the parties and the primary judge proceeded on the basis that the standard of care created by s 5(4) is not materially different to the common law standard. It was not contended otherwise on the appeal. In my view, no different view would result whichever was applied and it is therefore unnecessary to consider that issue: see Homestyle PtyLtd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209 [17] ‑ [30].
The correct approach at common law in deciding whether there has been a breach of a duty of care is described in the reasons of Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 ‑ 48. The court '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 to that question is in the affirmative, it is then for the court to determine what a reasonable man would do by way of response to the risks. Mason J continued:
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 (47 ‑ 48).
The question of what ought to have been done is determined looking forward to identify what a reasonable person would have done, not in hindsight to identify what would have avoided the particular injury: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [60] ‑ [61], [126]. And it must always be borne in mind that reasonableness may require no response to a foreseeable risk: State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [7].
The appellant contended that the primary judge had erred in concluding that there was a significant probability of harm by reason of the nature of the culvert. The respondent was well aware of the existence of the culvert from the previous 12 occasions on which she had visited the campsite and having walked past it on the way to the telephone box. The respondent had with her a torch which lit the way two to three metres in front of her. Counsel argued that in those circumstances how the respondent came to fall into the culvert was inexplicable but, however it occurred, it was clearly not due to negligence on the part of the appellant.
It was submitted that the primary judge had erred by approaching the question of what a reasonable person would have done in response to the risk with the benefit of hindsight rather than prospectively. His Honour had first looked at the injury suffered by the respondent and had then found that the appellant was in breach of its duty of care in failing to take steps to avoid that injury. It was further submitted that there was no evidence that the type of remedy postulated by the primary judge would have avoided the accident. Counsel argued that if the respondent did not see the culvert when she knew of its presence it cannot be assumed that she would have seen a structure around it. There was no basis for a finding that it would have avoided the accident.
Counsel also argued that in finding that the appellant had breached its duty of care in failing to erect a barricade around the culvert the primary judge had failed to consider that there was a perfectly safe alternative route around Windy Harbour Road available to the respondent, which she chose not to take.
I am not persuaded that the primary judge erred in finding that the appellant was in breach of its duty of care. I do not accept the contention by the appellant that his Honour reached that conclusion on the basis of hindsight. His Honour was clearly alert to the error of doing so and specifically referred to it at [57], citing the relevant passage from the judgment of Hayne J in Vairy [105]. There is nothing in the approach the primary judge took to suggest that he nevertheless fell into that error.
The primary judge found as a fact that the telephone box used by the respondent was the only public telephone box on the camping ground and that it was common for people at the camping ground, rather than walking around Windy Harbour Road, to walk across the playground and past the culvert on their way to and from the telephone box. On the route to the telephone box there was a white post located several feet before the side of the culvert. This post marked the end of the line of posts, connected by a rope barrier, running down the side of the unsealed road and separating it from the playground. However, on the return route from the area of the telephone box across the playground there was nothing on the other side of the culvert to indicate its location.
The depth of the culvert was not clearly established on the evidence but it appears to have been in the order of 40 cm to 60 cm deep and 60 cm to 90 cm wide (ts 123). For a person walking from the area of the telephone box to proceed across the playground to the huts on the other side, the area between the unsealed road and the culvert sloped downwards and there was then a sudden drop into the culvert. On the evidence, it was not a hazard which at least at night would have been obvious to any person approaching it from that direction. I do not consider that the primary judge was in error in finding that it was foreseeable that someone taking that route at night, even with the aid of torchlight, would fall into it. The risk of significant injury if that occurred was self‑evident.
It was not difficult to envisage how the hazard might be overcome. A simple post and rail barricade of the sort suggested by the primary judge, or of a similar nature, could have been erected so that anyone taking that route was effectively diverted around the culvert. I do not accept the submission on behalf of the appellant that there was no evidence that such a barricade around the southern and eastern sides of the culvert was a reasonable or practical method of overcoming the danger. In my view, it is plain that a simple barricade of such a nature, which could have been erected at a relatively modest cost, would have averted the hazard. In the circumstances of this case, these are matters of common knowledge, or perhaps common sense, and do not require specific evidence: see Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362, 368; Tressider v Austral Stevedoring and Lighterage Co Pty Ltd[1968] 1 NSWR 566, 568. Nor do they lend themselves to elaborate reasoning and I do not accept the appellant's complaint that the reasons of the primary judge as to these matters were inadequate.
I should say, however, that in my view the primary judge was in error in finding that the appellant was in breach of its duty of care in failing to have lighting, either solar or electric, in the vicinity of the telephone box after 11.00 pm and in failing to reduce the slope of the shoulder of the road by the culvert. Neither was made out on the evidence and indeed there was no evidence at all in relation to solar lighting. On the appeal I did not understand counsel for the respondent seriously to contend otherwise.
I would dismiss grounds 1, 2 and 3 of the grounds of appeal.

Ground 4

It is necessary then to turn to the question of contributory negligence. A finding of contributory negligence involves a finding that the plaintiff failed to take reasonable care for his or her own safety in that their behaviour constituted a departure from the standard of care of the reasonable person: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10, 16.
In considering the question of contributory negligence the primary judge noted that the respondent was 'fully aware' of the existence of the culvert and that she had a torch which would light up an area two to three metres in front of her (his Honour says, at this point in his reasons at [97], 'two or three feet' but the respondent's evidence was two to three metres (ts 39)). His Honour concluded that there was 'no evidence' that she was not keeping a careful lookout and he considered that without the illumination from the spotlight there may have been difficulties of perception making it more difficult for the respondent to realise that she was veering off course in attempting to retrace her steps. His Honour concluded that there was 'nothing in the evidence which would lead me to find that [the respondent] did otherwise than to endeavour to walk safely past the culvert' ([102] ‑ [103]) and found that there had been no contributory negligence on the part of the respondent.

The appellant submitted that the primary judge had erred by finding, in effect, that because the respondent had used a torch on her way back to her hut she had exercised reasonable care for her own safety. Counsel argued that if the respondent had exercised reasonable care she would have observed from the torchlight that she was in close proximity to the culvert before she fell into it. She could only have fallen into it if she had failed to keep a proper lookout.
It was further submitted that the primary judge had failed to take into account that in the darkness which she encountered upon leaving the telephone box there was a safe alternative route available to her along Windy Harbour Road. The additional distance involved in taking that route was not great - the respondent estimated 30 to 40 metres (ts 38) and her husband estimated 25 to 30 metres (ts 125). Counsel argued that in the circumstances that is the route a person exercising reasonable care for their own safety would have taken rather than attempting to traverse the playground, past the culvert, at night by torchlight.
In my respectful opinion, the primary judge erred in finding that there was no contributory negligence on the part of the respondent. In the circumstances I do not, with respect, consider it was open to the primary judge to find, as he did, there was nothing to suggest that the respondent was not keeping a proper lookout. On the respondent's evidence, the torch she had was a large one and she could see two to three metres in front of her (ts 39). She was well aware of the presence of the culvert and alert to the need to avoid it. The respondent was unable to explain at trial how in those circumstances she nevertheless came to fall into it. It was put to her in cross‑examination that in the torchlight it would have been very obvious if she had been paying attention. The respondent said it would not have been. She was then asked:
And why is that?‑‑‑It was dark at the time. The drain is - from the roadway, it is here. It was not in my line of vision. I had my torch on and was doing a broad spectrum with my torch (ts 42).
Later in the cross‑examination, the respondent confirmed the evidence in her witness statement that she simply did not see the culvert. She said that at the time the accident occurred she thought she had avoided the culvert (ts 47).
In the circumstances, the exercise of reasonable care on the part of the respondent required that she keep a proper lookout for the culvert until she knew she was safely past it. There was no evidence to suggest that the culvert would not have been observable in the torchlight if a proper lookout was kept. In my view, on the evidence the only inference that could properly be drawn was that the respondent had failed to keep a proper lookout.
The further ground that in the exercise of reasonable care for her own safety the respondent should have taken Windy Harbour Road back to her hut, rather than proceed across the playground, was not pleaded by the appellant in its defence and does not appear to have been a ground relied upon by counsel for the appellant at trial. It was, however, relied upon by the appellant on the appeal without objection by the respondent. In any event, in view of the conclusion I have reached on the first ground it is unnecessary to consider this ground.
The question then is as to the respective proportions in which the appellant and the respondent should bear responsibility. An assessment of contributory negligence requires a just and equitable apportionment as between the appellant and the respondent of the responsibility for the damage. That involves a comparison of culpability; that is, the degree of departure from the standard of care of the reasonable person, not moral blameworthiness for the damage: Pennington v Norris (16). An assessment of contributory negligence is essentially a value judgment upon ascertained facts: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 399. It is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197, 201.
In my view, in the circumstances of this case the negligence of the respondent was substantial and I would apportion responsibility two‑thirds to the appellant and one‑third to the respondent.

Conclusion

I would:
1.dismiss grounds 1, 2 and 3 of the grounds of appeal;
2.allow ground 4 of the grounds of appeal;
3.set aside the decision of the primary judge; and
4.substitute a finding that the appellant is liable for two‑thirds of the damage suffered by the respondent.
MAZZA J: I have read the draft reasons of Buss JA and Newnes JA. I agree with the orders proposed by Newnes JA. I agree with Buss JA's reasons with respect to grounds 1, 2 and 3. I join with Buss JA in agreeing with Newnes JA's reasons with respect to ground 4.

Diagram of the area ‑ part of exhibit 3