As his Honour noted (at 434 [101]), the word " condition " in that definition referred to the factual scenario with which the plaintiff was faced.
62 Although the primary judge found that the appellant was aware of the "type or kind of risk" normally found in footpaths, being what she referred to as sometimes uneven surfaces and bumps of various types, that fact was irrelevant unless and until it was determined that the relevant risk would, in the circumstances, have been "obvious" to a reasonable person in the appellant's position within the meaning of s 5F(1) and subject only to s 5F(3) and (4). Section 5G(2) provides that for the purposes of that section, a person is aware of a risk if he or she is aware of the type or kind of risk. Section 5G(1) presumes knowledge of that risk only where it is an "obvious risk" unless the person proves on the balance of probabilities that he or she was not aware of the risk. Therefore it is only if there is the anterior finding that the risk of harm is "an obvious risk" within the meaning of s 5F(1) that the presumption of awareness is engaged under s 5G(1) as extended by s 5G(2).
63 Accordingly, the critical question in the present case was whether there was, relevantly, an "obvious risk" within the meaning of s 5F(1). His Honour held that there was but, as we indicated at [34] above, provided no reasons for that finding.
64 In our opinion his Honour erred in coming to that conclusion. The evidence of Ms Coull and Ms Wilmington was that due to the shadows cast at the time over the relevant area of the footpath, the differential in height between the slabs could not be seen until a pedestrian was within a couple of feet of the leading edge of the defective slab. Until that point was reached the shadow cast by the trees over the join between the two slabs created a deception. We take that to mean, to a person such as the appellant who had not walked in this location before and who, therefore, had no opportunity to observe the height differential between the two slabs, that that differential was not observable even to a person exercising reasonable care for his or her own safety.
65 The Council submitted that it was sufficient that the height differential was obvious "from at least a couple of feet away, notwithstanding the shadows, if the shadows played any part at all". This submission does not accord with the evidence of Ms Coull and Ms Wilmington that as a consequence of the shadows the height differential could not be seen until one was within "a couple of feet" of that location. The shadows cast by the trees were deceptive and prevented a pedestrian from observing the differential until they were literally within a stride of the defect assuming that at that moment the pedestrian was looking at the pavement literally at his or her feet. Both Ms Coull and Ms Wilmington denied that the height differential was obvious.
66 It is true that a pedestrian is required to take reasonable care for his or her own safety. But that does not require that a person must walk along a footpath with their eyes continuously glued to the area immediately in front of them. In our view, and as the appellant submitted, there was nothing unreasonable in the appellant's failing to notice a defect in the footpath of the nature of that in the present case when such a defect only became apparent when the appellant was within "a couple of feet" of it.
67 The Council sought to rely upon the photographs in evidence to demonstrate that, despite the shadowing, the differential in height at the join between the two slabs was obvious. However, in our view the photographs themselves are deceptive. Those taken at 12 noon on the day of the accident do not actually depict the location of the shadows as they were an hour and a half earlier, in respect of which there was the evidence of the two independent witnesses.
68 The thrust of the Council's submissions based on the photographic evidence was that they made plain that the raised slab was visible at least from where the photographs were taken if not from further back. It was contended that at best the light was dappled so that at any given time the shadow cast by the trees did not cover the whole of the raised lip of the defective slab, notwithstanding that it tapered over its width.
69 Apart from the fact that this submission was at odds with the clear and unchallenged evidence of Ms Wilmington that the shadow was cast by the main trunk of the adjoining tree directly over the whole length of the joint between the two slabs, no proper basis was advanced as to why the photographs should trump the eyewitness evidence of not only Ms Wilmington but also Ms Coull. The fact is that a person walking along a footpath scanning ahead as the appellant said she did, would not suddenly stop at the point at which a photograph was taken and peer to see what was ahead of her. As was pointed by Beazley JA during the course of argument, the perspective depicted in photographs such as those in the present case, can be quite skewed and distances very difficult to assess.
70 The deceptive nature of such photographs is that they focus on a particular scene that is static. This is the antithesis of a pedestrian walking along a footpath, a situation that is anything but static and where the person is not required to focus on only one small element in the scene before and around him or her. When it comes to the best and most reliable evidence, that of the independent witnesses Ms Coull and Ms Wilmington must clearly prevail over photographs which were not taken until one and a half hours later.
71 In Short v Barrett [1990] NSWCA 164; unreported (BC9003193), Meagher JA, with the concurrence of Clarke and Handley JJA, considered that judges should not, when looking at photographs, overlook what his Honour referred to as the sage advice of Lord Reid in C Van der Lely NV v Bamfords Ltd (1963) RPC 61 at 71, namely:
"the judge ought not, in my opinion, attempt to read or construe the photograph himself; he looks at the photographs in determining which of the explanations given by the witnesses appears to be the most worthy of acceptance."
72 The point made by Lord Reid is that photographs such as those relied on by the Council in the present case cannot on their own be used, as the Council seeks to use them, as a substitute for the evidence of witnesses or as a reason for rejecting the virtually unchallenged and consistent evidence of the appellant, Ms Coull and Ms Wilmington. As we have said above, they cannot be used to trump that evidence which compelled acceptance: see generally as to the use of photographic evidence, Blacktown City Council v Hocking per Spigelman CJ at [7] to [13]; and Tobias JA at [167] to [171].
73 The Council further submitted that the primary judge had not made a finding that the shadow from the trees and the contrasting shadow along the footpath did in fact obscure the appellant's view of the raised lip of the defective slab. At [22] his Honour only found that such shadow "could" have had that effect and therefore "could" have exposed pedestrians such as the appellant to the risk of injury by tripping. Whilst this is true, it was incumbent upon his Honour to make a specific finding one way or the other. It was insufficient for him to have left the issue up in the air when such a finding was critical to the question of whether there was an "obvious risk".
74 His Honour having taken the issue as far as he did, we have no difficulty in taking it to its inevitable conclusion. Given the evidence of Ms Coull and Ms Wilmington which his Honour certainly did not reject or otherwise seek to diminish and which, as we have said, compels acceptance, it must follow that the shadows cast over the join between the defective slab and its immediate neighbour did obscure the appellant's view of the raised lip until it was too late for it to be avoided. In these circumstances, the risk of harm by tripping over the defective slab would not have been obvious to a reasonable person in the position of the appellant. It would have been neither apparent to nor recognised by such a person exercising ordinary perception, intelligence and judgment.
75 We should add for completeness that the Council submitted that to avoid a finding of a risk being obvious, it was necessary that the defect giving rise to the risk should be obscured to the point of invisibility. The vision of the relevant pedestrians must be "totally and absolutely" obscured. This cannot be correct. The extent of obscurity need only be such that a person keeping a reasonable lookout would be unlikely to see the defect in time to avoid it.
76 The Council relied upon a number of general statements of principle to be found in the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie at 581 [163] and the reasons of Callinan J in the same case at 639 [355]. It is noteworthy that in the passage of the joint judgment relied on, their Honours observed that persons ordinarily:
"will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as the uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting … In such circumstances there may be a foreseeable risk of harm even to those persons taking reasonable care for their own safety. Those hazards will include dangers in the nature of a 'trap' or, as Jordon CJ put it, 'of the kind calling for some protection or warning' …" (Emphasis added).
77 Callinan J also observed that there was a difference between what people would see in broad daylight and what they would see at other times. He thus said:
"The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this." (Emphasis added)
78 Similarly, in Hastings Council v Giese [2003] NSWCA 178; (2003) 127 LGERA 109 at [21] Tobias JA noted that a pedestrian was able to protect himself or herself from the uneven surfaces of footpaths and crossings by keeping a proper lookout for the purpose of taking care of his or her own safety. He then added:
"That responsibility will, however, shift to the road authority where a relevant defect subject to that authority's knowledge of it, constitutes not only a hazard but also one which is concealed or obscured and thus not obvious to the user so that it constitutes a form of trap."
79 The above passages emphasise the difference between a defect in a footpath which is obvious and one which is not because it is obscured even to a pedestrian taking care for his or her own safety. In the present case the relevant hazard was obscured as a consequence of the shadows cast over it. It was, therefore, not obvious.
80 For the foregoing reasons in our opinion his Honour was in error in finding at [8] that the relevant risk was obvious within the meaning of s 5F(1) of the CL Act. Furthermore, s 5F(4) has no application to the present case albeit that it provides that a risk can be an "obvious risk" even if it is not prominent, conspicuous or physically observable. The differential in height between the two slabs was prominent, conspicuous and physically observable but not in circumstances that made it an "obvious risk" within the meaning of s 5F(1).
81 Although a risk can be an "obvious risk" even if it is neither prominent, conspicuous nor physically observable, it does not follow that the risk in the present case must be held to have been obvious even it was not conspicuous as a consequence of the shadows cast over the join between the two slabs. A hole in the footpath that was neither prominent nor conspicuous might constitute an obvious risk notwithstanding that fact where, for instance, its existence and location was well known and a matter of common knowledge to pedestrians using that particular section of footpath. However, that is not the present case. There was no evidence to suggest that the risk posed by the differential height of the slab was a matter of common knowledge and it was certainly unknown to the appellant. Accordingly, in our view s 5F(4) is of no assistance to the Council.
82 Although the primary judge found that the risk was an obvious one and that as the appellant was presumed to be aware of it, her case on liability failed, that reasoning was, of itself, erroneous. In this context the Council sought leave to amend its Notice of Contention to allege that once it was determined that the risk of harm was "obvious" within the meaning of s 5F(1) so that the appellant was presumed to be aware of it within the meaning of s 5G(1), there could never be a breach of duty by the Council by reason of failure to rectify the defect which gave rise to that risk. We would grant such leave if only for the purpose of rejecting the Council's contention.
83 A finding that a risk of harm is an "obvious risk" within the meaning of s 5F(1) so that pursuant to s 5G(1) the person who suffers harm is presumed to be aware of that risk, does not, as the Council would have it, automatically lead to a finding of no breach of duty. Sections 5F and 5G are contained in Division 4 of Part 1A of the CL Act entitled "Assumption of risk". The purpose of that Division is, at least in part, to make it easier for a defendant to establish the common law defence of voluntary assumption of risk or volenti: C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [101] per Santow JA; Carey at [34]. Except with respect to an "obvious risk" which obviates any common law duty to warn (see s 5H), the provisions of ss 5F and 5G and, in particular, the statutory definition of an "obvious risk", have no relevance to the question of breach of duty.
84 This is not to say that the obviousness of the risk is irrelevant to an analysis of the breach question. But as Santow JA pointed out in Maloney at [103], a finding that the risk is "obvious" does not produce a preordained outcome to that question. Thus in terms of the balancing exercise referred to by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48, it is but one of the considerations to be taken into account in determining the reasonable response of a defendant to a foreseeable risk of harm.
85 However, care needs to be taken to ensure that the focus of attention in the application of the Shirt principle remains steadfastly upon the defendant. By way of contrast, the focus of attention of any defence based on an assumption of risk is upon the state of mind of the plaintiff. So much is clear from the provisions of s 5G(1). The point was emphasised by Hayne J in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 469-470 in the following terms (omitting footnotes):
"[162] The conclusion that a reasonable council would not have warned of this danger does not depend upon what the Court of Appeal referred to as the obviousness of the risk. Reference to a risk being 'obvious' is apt to mislead and cannot be used as a concept determinative of questions of breach of duty. Not least is that because obviousness of risk may divert attention from what would have been the reasonable response to foreseeable risk to consideration of how someone other than the plaintiff could have avoided injury. Inquiries of this latter kind will be relevant when considering questions of contributory negligence. They are not useful, however, when considering breach of duty.
[163] That is not to deny the importance of considering the probability of occurrence of the risk in question. The probability of occurrence of a risk that is not apparent on casual observation of a locality or of a set of circumstances may be higher than the probability of occurrence of a risk that is readily apparent to even the casual observer. But the focus of inquiry must remain upon the putative tortfeasor, not upon the person who has been injured, and not upon others who may avoid injury. …"
86 It thus follows that findings in favour of the Council in terms of ss 5F(1) and 5G(1) of the CL Act would not relieve it from a finding that it was otherwise in breach of its duty of care. The Council's contention to the contrary should, therefore, be rejected.
87 For the foregoing reasons, there should be judgment for the appellant on the issue of liability.