| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : YAHIYA -v- GULLONE [2004] WADC 234 CORAM : EATON DCJ HEARD : 19-20 JULY 2004 DELIVERED : 26 NOVEMBER 2004 FILE NO/S : CIV 1352 of 2002 BETWEEN : TOURKIAN YAHIYA Plaintiff
AND
GIUSEPPE GULLONE
Defendant
Catchwords: Torts - Occupier's liability - Hidden danger - Contributory negligence - Turns on own facts
Legislation: Occupiers' Liability Act 1985
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Result: Judgment for the plaintiff
Defendant's claim of contributory negligence dismissed Representation:
Counsel:
Plaintiff : Mr B L Nugawela
Defendant : Mr J J Sheldrick
Solicitors:
Plaintiff : Phillips Fox
Defendant : Les Sephten
Case(s) referred to in judgment(s):
Astley v Austrust Ltd (1999) 197 CLR 1
Brandi v Mingot (1976) 12 ALR 551
Jones v Dunkel (1959) 101 CLR 298
Case(s) also cited:
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 5120
Gondoline Pty Ltd v Hansford, unreported; SCt of WA, BC 200204570; 14 August 2002
Hoyts Pty Ltd v Burns (2003) 201 ALR 470
McMahon v Griffin Coal Mining Co Pty Ltd, unreported; SCt of WA; BC9702069; 16 May 1997
Roman Catholic Archbishop of Perth v Hinchcliffe, unreported; SCt of WA; Library No 980520; 14 September 1998
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
West Australian Trotting Association v Zafer, unreported; SCt of WA; BC9601616 26 April 1996
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Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Wyong Shire Council v Shirt (1980) 146 CLR 40
Ingrilli v Desales [1998] WASCA 283
Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298
Boyd v Fremantle Steel Fabrication Co (WA) Pty Ltd, unreported; SCt of WA; Library No 970272; 3 June 1997
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1 EATON DCJ: On 30 December 1999 at about 7.45 am the plaintiff and two friends drove to an orchard at Carmel in the Darling Range near Perth. The orchard occupies two adjoining properties. One parcel of land was the property of the defendant, Giuseppe Gullone, and the adjoining parcel of land was the property of his son, Dominic Gullone. The two comprised about six hectares, two thirds of which was orchard established by the defendant in about 1956. In 1987 he retired. Thereafter Dominic Gullone, with the assistance of his sisters, ran the orchard. It was dedicated to stone fruit, being plums, peaches, nectarines and apricots. Most produce was exported with some going to the local market.
2 The property owned by the defendant is known as 44 Union Road, Carmel. The property owned by Dominic Gullone is known as 12 Anembo Road, Carmel. 82 year old Giuseppe Gullone lives in a house on his property with his wife and two daughters. One of those daughters, Rosemary Gullone, is a carer for her mother who, I infer, is elderly and not well. Dominic Gullone lives in a house on his property with his wife and two children. 3 The plaintiff is a resident of South Lake, a suburb of Perth and, at the time of trial, was 70 years old having been born on 24 April 1934. 4 Because of his ill health the defendant was not present during the trial and did not give evidence. I was presented with a letter from his general practitioner, Dr J W Brooksbank, informing me that the defendant was a frail, 82 year old man suffering from asbestosis, chronic liver disease and significant deafness. He is also subject to a chronic cough, some cognitive impairment and intermittent confusion. The tendering of the letter served to explain the defendant's non-attendance at trial. The principal witness for the defence was Dominic Gullone, his son, whose evidence was clear and helpful. 5 In this trial there were three witnesses called: the plaintiff, Dominic Gullone and his sister Rosemary. I am satisfied that all three were truthful witnesses. 6 The facts of the case seem clear. The plaintiff and her two friends had decided, prior to 30 December 1999, to go fruit picking on that morning. The plaintiff had been to the orchard on four or five occasions and had met the defendant on at least one occasion prior to 30 December 1999. One of the plaintiff's friends drove the vehicle in which they travelled. The plaintiff explained that on each of the occasions the arrangement with the orchardist was that they could go on to the orchard
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for the purpose of picking fruit themselves. In order to do so it was necessary to speak to the defendant first. It seems that the defendant would provide the pickers with buckets. Once the picking was complete the pickers would return to him with their buckets of fruit, he would assess the quantity picked and an appropriate price would be paid. 7 Dominic Gullone, in his evidence, confirmed this practice saying that members of the public were allowed to come onto the orchard to buy fruit. He said that he didn't advertise or encourage the practice. Between 20 and 30 people a year came, mainly in the December, January period when the trees were in fruit. He explained that pickers would usually go to his father's house first. His preference was to pick fruit for the customers, but he commented that quite a lot of the people who attended the orchard preferred to pick their own. 8 On the morning of 30 December 2004 the plaintiff and her two friends arrived in a vehicle and reported, as was the practice, to the defendant's home. It seems that they spoke to the defendant while sitting in their vehicle. He gave them buckets and told the driver where to go in the orchard indicating a place to the rear of the property. The vehicle was then driven there. The plaintiff said that the only other person that they saw at the orchard on that occasion was Dominic Gullone. On earlier occasions there were other people walking around picking fruit. 9 Rosemary Gullone said that when the three ladies arrived she was in the kitchen of her parents' home. She went out onto the veranda where she saw her father talking to them. She went back into the house and did not see the ladies leave. 10 The plaintiff wanted to pick apricots. Specifically, she wanted half-green ones or fruit that was not quite ripe. The fruit that she wanted was higher up in the tree. 11 Not far from where the plaintiff had decided to pick apricots Dominic Gullone was doing just that in his cherry picker. He said that the plaintiff approached him and he lowered himself down so that they could talk. His recollection is that the plaintiff asked him whether he would pick apricots for her noting that she told him that she didn't want any "ugly ones" and that she wouldn't pay for "ugly ones". She told him that the ones she preferred were near the top of the tree and out of her reach. The plaintiff said that she asked Dominic Gullone if he would mind picking apricots for her and that she gave him a bucket and told him that
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she wanted the "half green ones". He agreed to pick apricots for her. Her friends were some distance away down a path towards Union Road. 12 It seems that Dominic Gullone picked a bucket full of apricots from higher up in the tree using his cherry picker. He then went about his own business of picking fruit. He said that some two or three minutes later one of the plaintiff's friends called out "come quick, come quick". He lowered the cherry picker and ran to where the plaintiff was seated on the ground. He said that it was a cleared area some 10-15 feet between the ends of the rows of trees and a track passing through the orchard which he said was five to eight feet wide. He assisted her to her feet by picking her up from behind. He said that she was virtually on the road or driveway but that he couldn't say that she was actually on the road. He waited for a minute or so having picked her up. She complained about her ankle and knee. Her friends helped her to their car. 13 The plaintiff's description of what happened was that there was a hole between the trees and the car. She was walking back between two rows of trees towards the car. She said that dry grass was covering the hole which she described as being about 30 centimetres deep and 60 centimetres long. She said that she fell when her right foot went into the hole. Her friends were not with her at the time. Before she fell she saw that the ground was normal for the area. She did not notice the hole until she had fallen over. She said that in the hole was a hard black thing like a pipe which she noticed after she fell rather than before. When she fell she called out. Her friends heard her call and summoned Dominic Gullone. She said that she was given a glass of water and that Dominic Gullone enquired as to whether she wanted him to take her to a doctor. She declined the offer and was assisted to the car by her friends. She sat in the car for a time and noticed that her leg began to swell. She called out to her friends who returned to the vehicle. It was decided, in the circumstances, that she should be taken to a doctor. It seems that they then drove to see a Dr Lee in Victoria Park. 14 On 27 May 2002 the plaintiff, by writ of summons filed in this Court, sued the defendant for damages for personal injuries suffered by her on 30 December 1999 when she fell and injured herself at the defendant's orchard, alleging that the fall was caused by the defendant's negligence. By her amended statement of claim she alleged that at the material time she was walking on uneven ground which was covered by long flat or flattened grass which concealed its underlying condition. She said in that pleading that her left foot slipped into a hole or a large indentation in the ground thereby causing her to lose her balance and fall.
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She pleaded that the defendant was at all material times the occupier of the land within the meaning of the Occupiers' Liability Act 1985 and that the accident was caused by a breach of his statutory duty to her to ensure that she did not suffer injury or damage by reason of any danger due to the state of the land or anything done or omitted to be done on the land. 15 The plaintiff particularised her claim in that regard as follows: "1. The defendant allowed customers to walk upon the uneven surface covered with long flat or flattened grass knowing that such surface was dangerous and unsafe; 2. the defendant failed to warn users of the property of the infirm and/or slippery and/or dangerous surface; 3. the defendant failed to provide a proper pathway for use by his customers; 4. the defendant failed to ensure that the area to be traversed by the plaintiff and other invitees was safe for their use; and 5. the defendant failed to maintain the premises in a safe condition for use by the plaintiff and other invitees. 16 The plaintiff pleaded that, as a result of the accident, she sustained injury being a large degenerate tear of the medial meniscus, tearing of the lateral meniscus and scarring of the bursa. She then particularised her medical investigations and treatment, her pain and suffering and loss of enjoyment of life and indicated that she would provide full particulars of her special damages, medical and other expenses and past and future gratuitous services in due course. 17 By his Amended Defence the defendant denied the alleged breach of statutory duty, asserting that there was no foreseeable risk of harm to the plaintiff or to any persons walking on the land and taking reasonable care for their own safety, that the land surface was not slippery, dangerous or unsafe, that there were no reasonable practical precautions which could have been taken to avoid the alleged accident, that the grass was short and mowed every year in October or November and sometimes also in December. The defendant alleged further that the plaintiff was guilty of contributory negligence in that she had failed to keep a proper lookout as to where she was walking and take reasonable care for her own safety.
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18 At the beginning of the trial counsel for the plaintiff informed me that the parties had agreed the quantum of the plaintiff's damages. It followed that the issues to be determined at trial were, firstly, whether the defendant had indeed breached his statutory duty to the plaintiff and, if he had, whether there was contributory negligence on the part of the plaintiff and if there was, the extent of that negligence.
19 Section 5 of the Occupiers' Liability Act 1985 provides 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, except insofar as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, 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. The section provides that the duty of care referred to does not apply in respect of risks willingly assumed by the person entering on the premises. The Act provides that 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." 20 The phrase "occupier of premises" means a person occupying or having control of land or other premises. Clearly, the defendant both
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occupied and had control of the land which comprised the orchard visited by the plaintiff and her friends. It follows that he had a duty of care to them. That duty was not extended, restricted, modified or excluded by any agreement between he and his visitors. His duty was, 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, to take such care as in all the circumstances of the case was reasonable to see that such person would not suffer injury or damage by reason of that danger. 21 There is no doubt that the plaintiff fell at the defendant's orchard on 30 December 1999 and that she injured herself. The first question to be asked is what caused her to fall. The plaintiff said that she had picked an apricot and was eating it as she walked towards the car. She was looking straight ahead at the car. She said that she fell into a hole which she estimated to be 60 centimetres wide and 30 centimetres deep. She was momentarily dazed. The endorsement of claim which accompanied her writ of summons referred to a fall caused by the dangerous nature of the ground surface. Her statement of claim filed on 8 October 2002 alleged that the plaintiff "was walking on uneven ground which was covered with pea gravel when she slipped and fell". When challenged about that pleading in cross-examination the plaintiff said that she had never varied in her description of what had happened to her and that she noticed the terms of the pleading and the reference to pea gravel when she changed her lawyers and gave instructions to correct the same. It appears that the plaintiff changed lawyers in about March of 2003. In answering interrogatories served by the defendant's solicitors the plaintiff said, in July 2003: "While walking to the car the plaintiff's right foot slipped into a hole or large indentation in the ground thereby causing her to lose her balance and fall to her left, onto her left knee thereby injuring the left knee." 22 In an Amended Statement of Claim filed 9 September 2003 by her newly instructed solicitors the plaintiff pleaded: "The plaintiff fell in an area where cars were parked. In this area, the ground was uneven or furrowed and covered by long flat or flattened grass ('the ground'), thereby concealing its underlying condition. Upon the plaintiff walking to her car, left left (sic) foot slipped into a hole or large indentation in the ground thereby causing her to lose her balance and fall ('the accident')."
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The appearance of the words "left left" was obviously an error. Counsel for the plaintiff, during the course of the trial, moved to amend by deleting those words and inserting the word "right". The amendment was made without opposition. 23 In cross-examination the plaintiff explained that she had been to the orchard with her previous lawyer but did not get out of the vehicle at the time. She then visited again with her newly instructed lawyer. On that occasion she got out and walked around. She was then able to identify the point at which she fell. In cross-examination she described how, having given her bucket to Dominic Gullone, she picked an apricot and was walking to the car between two rows of apricot trees. She came to the end of those rows. The car was directly in front of her. She walked towards it, put her right foot into a hole and fell. She was unable to be precise, in her evidence, about the position of the hole. When asked by her counsel if she noticed anything inside the hole she said "Yes, there was a hard thing that I felt, but then I've said there was like a pipe, something like a pipe there. It was a black thing there." 24 In the course of her evidence-in-chief the plaintiff was shown a videotape of the orchard. The plaintiff was able to identify the tree from which she picked an apricot as she walked back to the car. She then identified the point where she said that her right foot went into a hole. It was, she said covered with grass. In cross-examination the videotape was again played. Counsel for the defendant asked: "I don't see a hole that fits the description that you gave, either; a 60 centimetre by 30 centimetre hole in that picture there. Do you see that hole?---Like this, I can't see it. Why can't you see the hole?---Its covered its covered by grass again. How do we know that there is a hole there if we can't see it?---Well, you've got to fall in it to find out. That's all very well but what I'm putting to you is that there was no hole there on that day that fits the description that you gave?---But you were not there. I was there. I fell in it." 25 Dominic Gullone gave evidence. The videotape was played to him during his evidence in chief. He was asked to point to the spot where he found the plaintiff sitting on the ground after hearing calls for help. He did so. At that point in the videotape the image showed the plaintiff, in
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her T-shirt and slacks, standing in the middle of the frame with a walking stick or pointer in her right hand. At her feet, in front of her, was some uneven surface with dead or dying vegetable matter in the vicinity. I asked Dominic Gullone: "You have indicated that you thought you found her sitting at a point which was, as we look at the screen, just to the right and perhaps just below that area. Is that fair?" 26 He agreed, as did his counsel, that it was. He agreed that the ground was, at that point, uneven. 27 The videotape was again played in cross-examination with Dominic Gullone's attention drawn to a frozen frame at or near the point where he had indicated that the plaintiff was found by him. His attention was drawn by counsel for the plaintiff to a black pipe emerging from the ground in that vicinity. He was asked what it was. He said that it was a flushing point that was hardly ever used. It is used when his dams fill to the point where mud is sucked through his reticulation system blocking water jets. He described what was in the picture as 40 mil pipe in an indentation in the surface. When asked as to the dimensions of the indentation he said that it would be about a foot square. The pipe is left protruding so he knows where to go in the event that he has a problem with blockage in the reticulation system. He said that the indentation was about six to eight inches deep but normally filled with dirt so that the actual indentation of the surface was about two or three inches deep. He said he had filled the indentation about twice in the last 10 years. While viewing the videotape he pointed to grass growing in the indentation. Grass grows on the orchard regularly in spring. He uses a mower but because the blades cut at the one level grass is left growing within the indentation and cut grass gathers there. In December each year the grass dries but it might continue to grow in the indentation because water collects there and doesn't run away. He said that he would usually mow until the end of November but not in December because mowing then would create too much dust in the dryer conditions. Fruit such as peaches can collect dust. That would be bad for business. He described how the mown grass would become mulch, breaking down between November and the end of December. 28 I conclude that it was the indentation referred to by Dominic Gullone, being the point where the pipe used to flush his reticulation system emerged from the ground, that was the indentation referred to by the plaintiff. I conclude that she put her right foot into or on the edge of
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that indentation in such a manner as to cause her to lose balance and fall. She suffered injury in doing so. 29 It is common ground that the video tape shown to both the plaintiff and Dominic Gullone was taken in December 2003. The grass that had grown in the winter and spring was evident, there being areas which had not been mowed which were dead or dying and areas closer to the fruit trees which had been mowed, probably several weeks before, with the mown grass left to form mulch on the surface. At the point of the indentation where the polythene pipe emerges from the ground there was a cluster of dry grass being, in all probability, a combination of the clippings of mown grass and grass emerging from the indentation. 30 Counsel for the defendant put to me that the plaintiff did not call either of her two friends to give evidence in support of her contention as to the location of the indentation or the fact that there was such an indentation. When asked, in cross-examination, as to where those friends were when she fell the plaintiff said that they were walking and that she couldn't see them. They, along with Dominic Gullone, came to her aid after her fall. She agreed that they would have seen the hole referred to. When asked if they looked at the hole, in cross-examination, she said that she didn't know but that they "must have". I am asked, by reason of the failure of the plaintiff to call her two friends to give evidence, to draw an inference adverse to the plaintiff pursuant to the principles in Jones v Dunkel (1959) 101 CLR 298. 31 I find that the plaintiff did fall and that her friends did not see her fall. They were some distance away and were alerted to the fact that she had fallen by her calls for help. They went to her assistance. It may be that, had they been called, their evidence would not have assisted the plaintiff's case in the sense that they may not now recall a hole or indentation or precisely where it was. A failure to call a witness who might not assist the plaintiff's case should not necessarily lead to an inference that had the witness been called their evidence would have been detrimental to the plaintiff's case. The evidence might well have been, on the matters in issue, equivocal or just plain unhelpful. Having regard to the evidence in this case I am not prepared to draw any inference adverse to the plaintiff by reason of the fact that it is clear that she fell and that she fell as a result of losing balance when her right foot was placed in the area of the indentation identified, it seems to me, by both the plaintiff and Dominic Gullone. Counsel for the defendant made a similar submission in relation to the failure of the plaintiff to call the doctor visited by her in Victoria Park shortly after her accident. That submission was made on the
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basis that she would have reported to the doctor the circumstances of her fall. Reference was made to Brandi v Mingot (1976) 12 ALR 551. In that case the plaintiff was injured in a motor vehicle accident in 1964. His physical condition deteriorated after mid 1967 when he was treated for low back pain. The only evidence tendered by him for the period from the time of the accident in April 1964 until May 1967 was a report by a Dr Wilson who was, at the time of trial, deceased. One matter for consideration in the subsequent appeals was the failure of the plaintiff to call as witnesses doctors who had examined him and, in some instances treated him, in the years immediately after the accident. There had been no explanation as to that failure. The jury were told by the trial judge that they could conclude that the medical witnesses who were not called would, if called, have exposed facts unfavourable to the plaintiff and that the respondent's failure to call his own medical witnesses, who had examined him on a number of occasions from 1966 onwards was significant. Clearly, in that case, the significance of the failure to call medical practitioners related not to the facts of the motor vehicle accident in April 1964 but rather to the plaintiff's injuries and his treatment in the years that followed. Gibbs ACJ, Stephen, Mason and Aickin JJ said in Brandi v Mingot at 560 that the foundation of an inference that an absent witness "would not have helped the party's case" is that the party or his advisers are presumed to know the content of the absent witness's evidence, otherwise he would not be called as a witness whom "that party might reasonably be expected to call". They said that a party may thus reasonably be expected to call his own medical practitioners. 32 I accept the foregoing passage in the context of the circumstances of Brandi v Mingot but I do not accept that one would reasonably expect the plaintiff, in the case before me, to call the doctor in Victoria Park upon the issue of whether the plaintiff fell and where and why she fell. 33 Counsel for the defendant agreed that it was quite obvious from viewing the videotape that there was an indentation in the location referred to. He contended that the plaintiff didn't fall in that area. He submitted that the indentation could not be described as a concealed danger. He asked that I accept Dominic Gullone's evidence to the effect that it was only two or three inches deep at its deepest point and that it was one foot square. I accept that the property is generally uneven and certainly not flat. I accept that the property is a working orchard and that those who regularly traverse it are members of the Gullone family and, perhaps, their employees. Counsel for the defendant submitted that the plaintiff had been to the property on four or five occasions prior to 30 December 1999, that she was aware of the uneven nature of the
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surface, that she was eating an apricot as she strolled back towards the car and that she was looking at the car rather than where she was walking. She wasn't, he said, paying attention to the nature of the property. 34 I conclude that it is not necessary to make precise findings of fact as to the dimensions of the indentation referred to. It is the case that there was an indentation at the point where the plaintiff fell. It was there for a purpose. It marked the point in the surface of the orchard where the flushing pipe emerged from under the ground. The flushing pipe was only rarely used. The indentation was there to enable Dominic Gullone to find the flushing pipe on the rare occasions when he needed to do so. If he were to cover it with soil it might be difficult to find again. It occurs to me that the difficulty might well have been overcome by the erection of a simple sign or post indicating the position of the flushing point. 35 Its state, when the plaintiff walked towards it, was such that it was not obvious, being covered by dead or dying grass or grass clippings. It was, I conclude, a danger in the sense that someone not familiar with the property might well not appreciate its presence and exercise appropriate caution or avoidance. As mentioned, the property was a working orchard and was characteristically uneven. The plaintiff, having previously visited, would have known that such was the case. She certainly would not have known of the presence of the flushing point and, given its covering of dry grass, it would not have been obvious even to a person exercising an appropriate degree of care for their own safety. She was walking in the direction of the vehicle eating an apricot on a surface which could have been easily negotiated at an easy walking pace. 36 Clearly, the defendant had a duty to the plaintiff to take reasonable care to see that she did not suffer injury by reason of the hidden danger posed by the flushing point. 37 The orchard was not a venue or premises open to the public on a daily basis. It was, as has been mentioned already, a working orchard. A practice had developed over years whereby a small group of the general public were allowed onto the orchard to pick fruit. This was a practice not advertised or encouraged but rather one that was accepted on a seasonal basis. It may have generated a small income to the orchardists and was, no doubt, a pleasurable activity for those who visited. 38 An occupier of premises open to members of the public albeit in small numbers and on a relatively casual basis clearly has a duty to those entering the premises in respect of dangers. Steps which could have been
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taken by the defendant in respect of the danger posed by the flushing point would have been simple and inexpensive. Filling in the indentation and marking it with a post or a small cairn would have eliminated the danger and allowed the defendant to locate his flushing point when the need arose. Alternatively, if it were not to be filled in, a small fence or warning sign could have been erected. I do not accept that it was incumbent upon the defendant to provide a proper pathway for use by his customers. The difficulty with the flushing point was that it posed a hidden danger. Unfortunately, the plaintiff trod on that spot, lost balance and fell. 39 It is alleged that she failed to keep a proper lookout as to where she was walking and to take reasonable care for her own safety. Whether that was so involves a consideration of the conduct of the plaintiff in all of the circumstances prevailing at the time. She was, as she walked towards the car, unaware of the presence of the flushing point. There was nothing to indicate the presence of the indentation. The surrounding surface was, having regard to the videotape, readily negotiable by somebody walking. The plaintiff had walked on the orchard on that morning and on previous occasions without mishap. Dominic Gullone said of the indentation that it was about a foot square. He said that he had no sign there and that the indentation was left open so that he would know where to go if there was a problem with blockage of the reticulation. The pipe, he said in cross-examination, had to be below the surface so that it didn't get squashed or damaged by vehicles such as a tractor passing over the surface. 40 Having regard to the area in which the plaintiff was walking I conclude that she would have made her way back to the vehicle without difficulty had it not been for the presence of the hidden danger. The plaintiff was, in all the circumstances, keeping a lookout that was appropriate for the area and the terrain as she clearly assessed it to be. The surface being traversed gave no indication of the need for special care or caution. A finding of contributory negligence requires an affirmative answer to the question of whether the plaintiff contributed to her own loss by failing to take reasonable care for her own safety: Astley v Austrust Ltd (1999) 197 CLR 1. On the evidence in this case I am not prepared to hold that the plaintiff contributed to her own loss by failing to take reasonable care for her own safety. Had the indentation been obvious and not covered by dry grass (which was generally a part of the landscape at the time) then the answer to the question might well be affirmative in that she might have been expected reasonably, by the keeping of a proper lookout, to see and avoid the danger. That was not the situation in the case before me.
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41 It follows from the foregoing that there should be judgment for the plaintiff against the defendant in damages which are, I am informed, agreed. The defendant's claim of contributory negligence is dismissed.
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