Wilbe v the City of Munno Para No. Scciv-02-428

WILBE v THE CITY OF MUNNO PARA
[2002] SASC 425
Full Court: Doyle CJ, Mullighan and Besanko JJ

DOYLE CJ: Mr Wilbe sued the City of Munno Para (“the Council”) in the District Court. He claimed damages for personal injury suffered by him on 12 April 1994 when he fell and injured himself while walking on a lawn adjacent to the Council’s Civic Centre. His claim was for negligence. The District Court Judge found that the Council was not in breach of the duty of care that it owed to people walking on the lawn. The Judge dismissed the claim. Mr Wilbe now appeals against that decision.
Facts
Mr Wilbe was employed by a firm that provided security services to the Council. He was employed as a security guard. When he fell he was working as a foot patrol security officer at the Civic Centre in the course of his employment. He fell at about 11.20pm.
The lawn on which he fell is part of an area referred to as the Council’s Civic Centre. The Civic Centre comprises the Council Chambers (which I assume to be the Council’s administrative centre), a library (which I assume is used by ratepayers and others) and a building called the Gapper building (which I assume to be some kind of community facility). Adjacent to these three buildings are areas for car parking, paved pathways, grassed areas and some garden beds. My understanding is that the grassed areas were established partly for decorative reasons, and partly for recreational purposes and also so that members of the public could walk across them.
The area outside the buildings was lit at night by streetlights, lights on poles and louvred garden bollard lights. The Judge said that there was “a reasonable amount of light.” He said that patrolmen used torches in part of their rounds, but not in the vicinity of the lawn where the plaintiff fell. My understanding is that this area was sufficiently lit for the use of a torch not to be necessary.
The area around the buildings comprising the Civic Centre was open to the public. Having regard to the uses made of the buildings, it is an area through which members of the public would often pass by day and at night.
The Court was not taken to any estimate of the area around the buildings. The Court was told that the lawn was about the size of a tennis court.
The lawn on which the plaintiff fell was surrounded by paved areas. Nevertheless, it was likely that from time to time people would walk across the lawn rather than follow the path around the edge. The lawn was also used by staff members eating their lunch, and occasionally wedding groups had photos taken there and there were also, on occasions, small public events on the lawn. Accordingly, it was likely that the lawn would be used as a thoroughfare and also for recreational and like purposes.
Ms Blake was a gardener employed by the Council at the time. She was responsible for the maintenance of the open space in and around the Civic Centre. She inspected the lawn in question daily. Her daily inspection was made to identify any damage done (to buildings or plants) by vandals, to keep the area tidy, and as part of her regular maintenance program. She cared for the lawns in the whole area, and for the trees, plants, shrubs and gardens. She mowed the relevant lawn weekly or fortnightly, depending on the season. This was usually done using a small ride-on mower, but she had also cut the lawn using a hand-pushed mower and a whipper snipper. She had walked over the lawn many times.
In her evidence she described the work she had done on the relevant lawn, to improve its condition. She described how she maintained it. Not surprisingly, the Civic Centre was classified by the Council as “high profile or category 1.” Ms Blake explained that in this way:
“Category one means it’s high profile. It means that there’s a lot of public people around there all the time. It’s open to the public. They use it for festivals. They use it for picnicking and just wandering around. It’s because it’s the gateway to the council. It’s their basically showpiece. They want to show that that’s their standard that they’re going to set for the rest of the council area when people come and see the area, visit the area.”
As I have already said, Mr Wilbe fell on 12 April 1994. In late 1994 Ms Blake was informed by a Council employee that someone had fallen on one of the lawns at the Civic Centre. Initially she was unable to identify the place where he fell. A little later a man came to inspect the area, apparently acting on behalf of Mr Wilbe. With the man’s assistance she identified the relevant lawn as the place where Mr Wilbe had fell, and on this occasion was able to find what was treated at trial as the particular spot where Mr Wilbe fell. This was about December 1994. Her evidence about this was as follows:
“A.Basically nothing was obvious so I basically shuffled around, you know, just two feet, just shuffled around really carefully. Got down on my knees and I started having a really close investigation and I found a depression under a fairly thatched bit of kikuyu, the kikuyu has grown fairly thickly over it and like a visual would be it was sort of something like maybe so deep (INDICATES).
Q.You’ve indicated so deep. At its deepest point how deep do you think it would have been.
A.No more than 2 inches.
Q.Did it have sloping sides.
A.Yes, it was just a shallow depression, you know, like it was tapered out and it was very thickly thatched with the grass, hence it wasn’t that visible to the eye; I really had to be looking for it and shuffling around and found it.”
Later in her evidence she said she was “a bit surprised” when she found the depression, and this was:
“… because I’d just spent so much time in that area, I thought I knew the place like the back of my hand.”
She agreed that if she had noticed the depression earlier she would have fixed it. When she did locate the depression, she filled it with four or five shovels of coarse sand. She overfilled it, to allow for settlement of the sand. Nevertheless, referring to the standard of the relevant lawn she said:
“… it wasn’t a bowling green by any standard and it didn’t have to be, but I would say it was excellent standard.”
She gave evidence about work done on the lawn between April 1994 and December 1994. Apart from regular maintenance all that had happened was that the lawn had been cored and top-dressed with about one centimetre of gypsum. That was in about September 1994. Subject to that, in December 1994 the lawn was in the same condition as it was in April 1994.
Mr Wilbe’s case was that the hole that caused him to fall was the sort of hole one would get if a tree or large shrub had been removed. He said it was 12 inches to 18 inches in diameter, bowl shaped with sloping sides and about 5 inches to 12 inches deep. The Judge said that he described it as “dishing down to a deeper, more straight sided hole at the centre.” Referring to his evidence the Judge said:
“So, the hole he describes is rather different from that described by Miss Blake. It is also a hole which is probably attributable to specific human intervention, rather than to simple subsidence or original failure to make the lawn absolutely level.”
The Judge said that the hole described by Mr Wilbe was “not a hole caused by last night’s vandals, which had been there for such a short time that it was reasonable for it not to have been found.” That much was common ground. There was no suggestion that it had been recently created, and in particular recently created by human intervention. Referring to the hole described by Mr Wilbe, the Judge said:
“If his fall was caused by the sort of hole he describes, I think the hole was one which the defendant should have detected and which it should have realised would be likely to be dangerous to people who traversed the lawn.”
My impression is that the Judge is here referring to the depth alleged by Mr Wilbe as part of his case (varying from 5 inches to 12 inches deep) and to the deeper and straighter configuration of the hole at its centre.
I add that as well as evidence from Mr Wilbe and a fellow patrolman about the appearance and configuration of the hole, the Judge had the assistance of photographs of the hole taken in late 1994.
The Judge preferred the evidence of Ms Blake about the hole. His findings about the hole appear at several different places in the judgment. He said:
“I find that the plaintiff fell in the immediate vicinity of a depression about 12 inches to 18 inches in diameter and, after deducting the height of the grass, no more than about 3 inches deep at its centre, with a shallow, dished profile.”
A little later he said:
“On my findings, the underlying depression, if the grass were removed, was 12 inches to 18 inches across and about 3 inches deep. In my view, such a depression, in the place where it was, and in the circumstances of how that area was used and known by the defendant to be used, was not an unusual danger. If it was a danger (and 3 people claim to have stumbled or fallen in it), it was, in my opinion, not a danger of which Miss Blake ought reasonably to have been aware so that the defendant might be vicariously responsible for her failure.”
And earlier in his reasons he said:
“In my opinion the sort of depression described by Miss Blake is one which would often be found in lawns both in public and private areas. I do not think it would generally be perceived as a danger, though, depending on how obsessive the owner was, it might be repaired for aesthetic reasons.”
There does not seem to have been any suggestion that the coring of the lawn or the spreading of the gypsum had any noticeable effect on the shape of the depression. Not only did the Judge find that the depression was not the result of recent human intervention, the effect of his findings is that it could not be attributed to the removal of a tree or plant, or to the creation of a hole by Ms Blake or anyone else in connection with the maintenance of the Civic Centre. As is indicated in a passage set out above, the Judge was of the view that it was the result of either natural subsidence or a failure to make the lawn more level when it was established.
The presence of the depression was concealed by growing and some dead grass. It could not be seen easily, but as Ms Blake’s evidence indicated, when she felt in the area with her hand and her feet she was able to locate the depression.
Another security guard, Mr Ivic, said he had once stumbled in this depression, while chasing some young people away from the Centre. It seems he did not report this to the Council. The Council had a system for recording complaints and reports about dangerous situations in the Council area. There was no report or complaint about this particular lawn before the incident involving Mr Wilbe.
Finally, I come to Mr Wilbe’s description of the fall. He was walking on a paved area adjacent to the lawn. He thought he heard a noise behind him. He moved sideways onto the grass to get a better look. The grass was wet at the time. One foot, when he placed it on the grass, began to slip. He tried to steady himself with the other foot but fell. He attributed the fall to the hole in the grass. He identified the hole and described it in evidence, but as I have said his description of the hole was not accepted. The Judge found:
“… when one foot began to slip on dewy grass, it was his other foot which failed to steady him, that putting that foot into a hole allowed the fall. No complaint is, or could be, made about the grass being wet.”
Beyond this the details of the fall do not matter.
Although the Judge rejected the plaintiff’s claim, he found that had it succeeded, there was no basis for attributing contributory negligence to Mr Wilbe. He said that the depression was masked by grass, Mr Wilbe did not fail to maintain a proper lookout, and having regard to the lighting in the general vicinity he could not be criticised for not using his torch.
Findings
The Judge found that the Council owed a duty to its staff and to the public to take reasonable care to maintain the lawn in a state fit for the sort of use that was made of it. He found that Miss Blake was aware of the need to maintain the lawn in a state safe for use by the public and by Council staff. On some occasions he posed the relevant question in terms of whether the depression constituted “an unusual danger in all the circumstances”, and on other occasions in terms of whether it was simply “a danger.” His concluding finding was that it was the Council’s responsibility:
“… to take reasonable care to protect the plaintiff from unusual damage of which it was, or ought to have been aware.”
The two findings on which his dismissal of the claim rested were these:
“3.It was not unreasonable for Miss Blake not to have registered that there was a depression which might be dangerous.
4.Even accepting, for purposes of argument, that the depression proved to be dangerous, it was not an unusual danger in all the circumstances.”
Finally, I add that the Judge found Ms Blake to be an impressive witness, and appears to have accepted substantially all of her evidence.
As I understand the submissions there was no challenge to the Judge’s findings of fact. Mr White QC, counsel for the plaintiff, submitted that the Judge erred in law in apparently applying a test of whether the depression constituted an “unusual danger.” Accepting the Judge’s findings of fact, he said that the issues were whether the condition of the lawn gave rise to a risk of injury to a person walking on the lawn, which risk the Council should have foreseen; whether there was a reasonably practicable means by which the risk of injury could have been avoided; whether the failure to eliminate the risk was unreasonable and whether the injury was caused by the risk in question. In brief, he submitted that it was reasonably foreseeable that the depression could cause a person to slip or fall, and so it was reasonably foreseeable that it gave rise to a risk of injury. The risk was easily avoided, by filling the depression, with sand or loam as Ms Blake did. In all the circumstances the failure to eliminate the risk was unreasonable, and the depression was the reason for the plaintiff’s fall.
Duty of care and breach of duty
The case was argued as if it was an ordinary case of occupier’s liability. The Council did not submit that in deciding whether a duty of care was owed, and the extent of that duty, and in deciding whether there had been a breach of duty, it was necessary to consider the Council’s liability for the manner in which it exercised statutory powers conferred on it, or the circumstances in which it failed to exercise statutory powers.
In particular, the Council did not submit that the duty of care it owed to pedestrians passing through the open areas around the Civic Centre, in relation to the state of footpaths and lawns, was to be expressed in the terms identified by the majority in Brodie v Singleton Shire Council [2001] HCA 29; (2001) 75 ALJR 992, when they considered the duty owed by a highway authority to a pedestrian in relation to the state of the footpath adjoining a road: at [163] Gaudron, McHugh and Gummow JJ; at [355] Callinan J. Because neither party argued the case by reference to those principles, it is not necessary for me to consider whether they are applicable to a case like this.
I am content to proceed on the basis identified by the parties. However, I consider that a factor that must be taken into account is that the Council, in relation to the area of land, is not at liberty to exclude the public from the area at will. In this respect it is unlike a private occupier of land. Even though I am prepared to treat the case as a case of occupier’s liability, the nature of the occupation of the Council should be taken into account: Brodie at [303] Hayne J. It is also necessary to take into account the Council’s responsibility to maintain other open spaces through the Council area. Subject to those factors, which in this case are not of any great significance, I am content to proceed on the same basis as the parties. Accordingly, the matter is to be approached on the basis that the Council, as occupier of the land in question, with powers of management and control, by virtue of those powers and by virtue of its permission to the public to use the open areas around the Civic Centre, was under a duty to take reasonable care to avoid injury to the public: Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 429-430.
Nor was there any submission that the duty owed by the Council to Mr Wilbe was any different from the duty owed to members of the public generally.
The case was argued on both sides on the basis that the relevant duty of care was that stated by Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 662-663, and approved by Mason, Wilson, Deane and Dawson JJ in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. As Deane J said in the former case:
“All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”
It being common ground that the Council owed a duty of care to people crossing the lawn, by day and at night, the real issue is the scope or extent of the duty owed, and whether there was a breach of that duty. This is one of those cases in which to say that a duty of care is owed is not particularly informative. It is necessary to focus on the circumstances in which the duty is said to arise, and the scope of the duty that is said to result: Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61; (2000) 205 CLR 254 at [14] Gleeson CJ; [59] Kirby J; [100]-[103] Hayne J.
A consideration of the scope of the duty owed by the Council to Mr Wilbe and other persons using the lawn requires consideration of the following matters. First, the fact that the Council was responsible for significant areas of open space throughout its area. Second, the fact that the Council staff gave the maintenance of this particular area a high priority, meaning by this particular area the area in and around the Civic Centre. Third, the fact that the Council could not, from a practical point of view, exclude people from using the open area around the Civic Centre. People had to have access to the Council premises. Fourth, the fact that lawns are a common decorative and recreational facility, and in those circumstances it would not be reasonable to expect the Council to fence them off. Fifth, the fact that the area in question was a lawn. Common experience tells us that lawns often have irregularities in their surface, and are not usually as level as a bowling green or croquet rink. Minor ridges, depressions and things like holes for pop-up sprinklers are often encountered. Sixth, the Council knew that people might cross the lawn by day and by night. Seventh, the fact that there was a reasonable level of lighting in the area at night.
I take those matters into account in deciding the extent of the duty imposed by law on the Council in discharge of its duty to take reasonable care for the safety of persons crossing the lawn.
I consider that the duty of Council was to keep the lawn and similar areas in a condition such that naturally occurring hazards or dangers of a kind not ordinarily to be expected were not encountered. It is not necessary in this case to consider specifically the duty in relation to man-made dangers. Putting things around the other way, I consider that the Council was not under a duty to take reasonable measures to eliminate naturally occurring dangers or hazards of a kind ordinarily to be expected in an area like this.

I recognise that there is an element of circularity and impression in that. The duty of care is less than would be expected of a private occupier of premises like a supermarket. It might not be the same as that expected of a highway authority in relation to a footpath. I make the latter point in particular because the lawn was adjacent to a paved walkway and to a roadway. On the other hand, the Council recognised that the level of use of the area by the public, and the status of the area, called for a higher standard of attention than was given to other open space. It may be that it called for a higher standard of care than would apply to open space generally throughout the Council area. That, however, need not be decided.
It is convenient to move to the question of breach, before returning to the extent of the duty.
The principle currently applied in deciding whether there has been a breach of a duty of care has been expressed by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 in terms that have been approved many times. He said at 47-48:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
A reasonable person in the Council’s position would have realised that irregularities in the level of the surface of the lawn, and a depression in particular, might cause a person to fall. Such a reasonable person would realise that a failure to eliminate such irregularities or depressions, whether man-made or naturally occurring, or even if due to a failure to create a truly level surface when the lawn was established, gave rise to a foreseeable risk of injury. The risk was not far-fetched.
In assessing the magnitude of the risk such a person would take account of the fact that no falls or injuries had been reported to the Council prior to Mr Wilbe falling. On the other hand Ms Blake said that if she had noticed the depression earlier than she did, she would have filled it. However, I do not interpret that as an acknowledgement of an obvious or significant danger. My view is that it does no more than reflect the ordinary human response to the occurrence of an accident. Also relevant to the reasonable person’s perception of the magnitude of the risk is the fact that despite Ms Blake walking on this lawn many times, she had not noticed the depression. To my mind this indicates that it was the sort of unevenness that one ordinarily encounters in a lawn, and not one that would strike the ordinary person as out of the ordinary or particularly dangerous. I say that because I agree with the finding that the Judge made, in effect, that the depression was “not a danger of which Miss Blake ought reasonably to have been aware”. I am satisfied that that is what the Judge meant.
It is relevant that it was a simple task to remove the depression. It probably took Ms Blake no more than a few minutes to fill the depression. But this depression cannot be viewed in isolation. The duty that Mr Wilbe seeks to impose on the Council is, in effect, a duty to inspect all of the lawns adjacent to the Civic Centre, to inspect them closely enough to find all such depressions, and then to fill them. The response of the reasonable person to the magnitude of the risk must be assessed in advance of the accident occurring. If the response of the reasonable person would be to locate and to fill a depression like this, that response would equally extend to any other like depression. That would be a sizeable task, although not an overwhelming one. But it amounts to a duty to have all of the lawns adjacent to the Civic Centre, or at least all of those used regularly by pedestrians, pretty well uniformly level.
I recognise that here I have moved from the issue of breach back to the issue of the scope of the duty, but this simply highlights the fact that sometimes drawing these lines is difficult.
In the context of breach of duty I also remind myself that the depression was concealed by growing grass, and so was not really visible on a visual inspection. But this would be true of most small undulations and depressions in a lawn, except perhaps in full daylight. I remind myself that the lawn was used at night as well as by day.
I return now to the question of the extent of the Council’s duty. I consider that the duty of the Council in relation to the state of the lawns around the Civic Centre was as already outlined by me. Taking account of the Judge’s description of the depression, and of Ms Blake’s evidence about it, I regard the depression as the sort of unevenness or irregularity and consequent danger (as I accept it was) that is to be expected in a lawn or grassed area of this kind in a location like this. To be more specific, I consider that the duty to take reasonable care in circumstances like this does not require the elimination of features like this depression, even though such a feature might cause a person to fall. In circumstances like this the law should not require an occupier to eliminate all conceivable sources of danger to persons using the area, and in particular should not require the occupier to eliminate a naturally occurring source of danger of a kind commonly encountered in similar areas. Accordingly, the scope of the duty imposed on the Council does not extend to the detection and elimination of the danger that existed.
Expressing the matter in terms of breach of duty, I consider that it was not incumbent on the Council as a reasonable person to inspect the lawns for such irregularities and to locate them and to eliminate them. I consider that having regard to the circumstances and the degree of risk, to require that as a response to the risk of injury that did exist (and should have been appreciated by the Council) is to require more than a reasonable person would do.
I consider also that Ms Blake was not negligent in failing to observe the depression and in failing to fill it before the accident occurred. I make this point separately because it could be argued that whatever the general duty of care was, having regard to the fact that Ms Blake worked in and around this area, and must have crossed the lawn many times, in those particular circumstances she should have detected the irregularity and removed it. Her own statement that she would have filled the irregularity had she noticed it could be said to support this approach. However, I have already explained what I make of her statement. It is quite possible that at some stage she crossed over the depression or stepped in it without taking any particular note of the fact that she had done so. This merely reflects the fact that, on the Judge’s findings, it was not the sort of depression that a reasonably careful person would decide should be eliminated. I agree with the Judge’s finding in that respect.
For those reasons I conclude that the duty of care to which the Council was subject did not extend to the detection and removal of this kind of irregularity in the surface of the lawn. Ms Blake was not negligent, and the Council is not vicariously liable for her failure to eliminate the depression. The Council was not in breach of any relevant duty of care that it owed.
It may be that in posing the issue in terms of whether there was an unusual danger of which the Council ought to have been aware, the Judge erred. This is language appropriate, under the law as it previously was, when considering the duty owed by an occupier to an invitee. I doubt whether the Judge did err. It is likely that he used the term “unusual danger” as a convenient way of summarising the approach that I have taken.
But even if the Judge erred in that respect, the findings of fact that the Judge made lead to the conclusion that I have reached. As well, the Judge canvassed, by and large, the same matters as I have canvassed.
I have considered the submission that, if the Judge erred, this Court should order a retrial. In my view it is not appropriate to do so. The circumstances of the accident are relatively straightforward, and the Judge has made appropriate findings of fact. When one allows for the manner in which the Judge canvassed relevant issues, the difference between the approach that I have taken and the approach the Judge took (assuming for the moment that the Judge erred on an issue of law) is not so great as to suggest that the approach to the facts was coloured by an incorrect approach to the law. For those reasons I would not order a new trial.
Conclusions
For all those reasons, in my opinion the appeal should be dismissed. The Judge was right to conclude that the Council was not liable to Mr Wilbe. This is unfortunate for Mr Wilbe, because he suffered significant injuries in circumstances in which he was not at fault. But in my opinion, to hold the Council liable in this case would be to impose an unreasonable and inappropriate burden on occupiers of land accessible to the general public for the purpose of passage and for recreational purposes.
MULLIGHAN J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
BESANKO J: In my opinion this appeal should be dismissed. I agree with the reasons of the Chief Justice and there is nothing I wish to add.

[2002] SASC 425

20 December 2002