Occupiers' Liability Act 1985 (as amended) s4, s5

Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208

Westralian Caterers Pty Ltd v Eastmet Limited (1992) 8 WAR 139

Bardsley v Batemans Bay Bowling Club Limited, unreported; NSWCA CA 40370/1993; BC9605609; 25 November 1996

Bartels v Bankstown City Council [1999] NSWCA 129

MacPherson v City of Stirling, unreported; DCt of WA; Library No D980324; 24 November 1998

McLachlan v Purchas & Ors, unreported; FCt SCt of WA; Library No 980749; 21 December 1998

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383

Secretary, Department of Natural Resources and Energy v Harper [2000] VSCA 36

Short v Barrett, NSWCA 40246/1989; BC 9001913; 5 October 1990

Tate v Commonwealth of Australia, NSW SC No 15384/78; BC8801829; 17 June 1988

Western Australia v Watson (1990) WAR 248

Woods v Multi-Sport Holdings Pty Ltd, unreported; DCt of WA; Library No D990045; 24 February 1999

1 The plaintiff was born on 9 May 1918 and is 82 years of age. On the morning of 9 July 1997 the plaintiff entered the premises of the Wembley Golf Course ("the golf course") to play a round of golf. The defendant occupies, controls and manages the golf course. The plaintiff slipped and fell when walking on a sloped area leading from an elevated tee on the golf course ("the accident"). The plaintiff alleges that the accident was caused by the negligence of the defendant and has pleaded that the defendant breached its statutory duty of care to the plaintiff as provided in s 5 of the Occupiers' Liability Act (1985) ("the Act"). The defendant has denied that it was negligent at all and further that it in any way breached its duty of care to the plaintiff.

2 The plaintiff has pleaded that as a result of the accident he suffered a wedge fracture of the mid-thoracic spine for which he required and received medical treatment. The parties have reached agreement on the issue of quantum and it is necessary for me to determine the issue of liability.

3 For about 10 years before the accident the plaintiff regularly played golf at the golf course with three of his friends on Monday, Wednesday and Friday each week. They liked being the first group to tee-off early in the morning, one reason being to avoid any hold-ups in front of them. On the day of the accident the plaintiff's only playing partner was Clifford James Brown ("Mr Brown"). Mr Brown was born in 1923 and is a friend of the plaintiff. He had been one of the plaintiff's golfing partners for about 10 years and they both still play golf together at the golf course.

4 Three witnesses were called at the trial. The plaintiff gave evidence and called Mr Brown as a witness. The defendant called Norman James Parker ("Mr Parker") who has been the supervisor and in charge of the maintenance of the golf course for the last 13 years.

5 The plaintiff gave evidence that he arrived at the golf course between 6.00 and 6.15 am and met Mr Brown in the car park. It had rained during the night. They paid their green fees and went to the 10th tee of an 18 hole course at the golf course which is described as the "old course". They both sat on a bench near the tee and put on their spiked golf shoes. The men's tee at the 10th hole was positioned adjacent to or just beyond the western end of a single storey clubhouse building and in front of and on about the same level as the clubhouse. The evidence indicates that in a general sense the clubhouse is constructed on an east/west line.

6 A pathway was constructed immediately in front of the clubhouse for players and other entrants to come and go from the golf course. From a short distance beyond the side of the pathway further away from the clubhouse the ground sloped down and away from the clubhouse. In other words, the clubhouse was in an elevated position relative to that part of the old golf course which is relevant in this particular case. This sloped area beyond the pathway, which I understand to be to the south side of the pathway and the clubhouse, was all grassed. The men's tee area of the 10th hole was flat, as would be expected, and on the top of an embankment at about the same ground level as the clubhouse. In theory at least, players hit off the 10th tee down the fairway in what generally would be a southerly direction. The eastern side of the embankment was grassed and sloped down and away from the tee and merged with the downward sloped grassed area in front of the clubhouse.

7 Exhibit 1 is a photograph of the 10th tee area and part of its surrounds taken from the eastern side of the tee. Although the photograph was only taken recently, it is agreed by the parties that in general terms the relative levels and contours of the area as shown in the photograph are much the same now as they were at the time of the accident.

8 The women's tee of the 10th hole was positioned a short distance in front of the men's tee and at a lower ground level to the men's tee. The plaintiff gave evidence that the ground level of the men's tee was about 16 feet higher than the women's tee. Mr Brown thought that the men's tee was about 20 to 25 feet higher than the women's tee.

9 On the day of the accident the men's tee of the 10th hole was closed and the markers for it had been placed on the women's tee at the lower level. The accident happened when the plaintiff and Mr Brown were making their way to the women's tee to hit off. They both walked from a flat area of grass at the top of the embankment and down the grassed embankment on the eastern side of the men's tee. The idea was to walk down the grassed slope on the eastern side of the embankment and around to their right to the women's tee.

10 During the course of the plaintiff's evidence he described the sloping grass embankment as "quite a steep" sloping grass embankment and also "about 20 degrees". He said that he walked about six or seven metres down the sloped grass embankment and then took one step onto an area of grass covered by woodchips and fell very heavily, bottom first, to the ground immediately after stepping onto the woodchipped area. He described the area of the sloped grass embankment that he walked on before he arrived at the woodchipped area as "wet" and "a bit squelchy underfoot". He said that the grass was wet but he did not have a lot of problems with his footing on the grass and that it appeared to be quite safe to walk on. He said that he fell immediately upon stepping onto the woodchips. He also said that the woodchips were spread over the grass within an area about one metre wide and about five or six metres in length. He did not check on how thick the woodchips had been laid.

11 The plaintiff gave evidence that there were no signs anywhere on how players should make their way down the grassed embankment on the eastern side of the men's tee area and/or to the women's tee. Although there was no designated pathway from the men's tee to the women's tee of the 10th hole the plaintiff gave evidence that when he walked down the sloped grass embankment he followed a slightly worn track. The plaintiff did not clearly state that there was a slightly worn track in the area covered by the woodchips but he described this area as being "like a pathway". It is clear on the plaintiff's evidence that he described the woodchipped area as being like a pathway because of its dimensions, it being about a metre wide and five or six metres in length.

12 The plaintiff rejected the suggestion that the route he took when walking down the embankment to the women's tee was a "short cut". He said that it was the way the ladies always used to get to their tee. He indicated that he had not walked down this way on the sloped grassed embankment before the date of the accident. He also indicated that he and his friends often hit off on a different course. The plaintiff gave evidence that he was pushing his buggy in front of him as he was walking down the sloped grass embankment. He said that it was a lot easier to push it down the hill rather than pull it behind him. The plaintiff rejected the suggestion that he could not see where he was going because he was pushing his buggy in front of him rather than pulling it behind him.

13 During cross-examination the plaintiff was asked a number of questions in relation to the care he exercised for his own safety when walking on a wet and/or sloping surface. When asked whether the fact that the grass was wet and squelchy underfoot made him a bit more careful than usual he replied that, "with spikes on your shoes you don't slip on grass". The plaintiff gave evidence that he would "guess you'd always take care" when walking on a wet surface and that he "walked very carefully down the hill". He also gave evidence that he thought "you would always take more care" when the course was wet rather than dry. The plaintiff also said that "you would always take care if it's wet" even when wearing spiked shoes. When probed on whether he actually recalled taking more care than usual immediately before the accident occurred the plaintiff said that he did not recall. On the same point he also said that the accident occurred three years ago and that he always takes care going down a steep slope.

14 The plaintiff gave evidence that the accident happened at about 6.45 am. When it was put to the plaintiff that it would have been fairly dark at that time in the middle of winter he replied, "No, it wouldn't have been dark. We would have been waiting until it was light enough to see where you hit the ball".

15 The plaintiff gave evidence that he returned to the golf course about a week after the accident to look at where he had fallen. He said that he noticed that the woodchips had been taken away and that the area consisted of "just grass". The plaintiff said that he also noticed that a little concrete gutter had been placed on the edge of the pathway in front of the clubhouse. He thought that this was designed to stop water running down the grassed slope.

16 Mr Brown resides in Daglish which is much closer to the golf course than the plaintiff's residence in Ardross. Mr Brown gave evidence that it had rained quite a bit in the days leading up to the accident and also over night immediately before the accident. He said that he and the plaintiff liked to be the first group to tee off in the morning. He said that the plaintiff's evidence that they teed off at 6.45 am could be right. When it was put to Mr Brown that it would have been pretty dark at that time he indicated that between 6.30 am and 6.45 am you could see well enough to tee off.

17 Mr Brown gave evidence that as he and the plaintiff were walking down the grassed slope making their way to the women's tee of the 10th hole he was slightly in front and to the right of the plaintiff. He described the slope as "fairly steep" and being more steep towards the top than the bottom. He gave evidence that there was an area of woodchips about three feet wide and four or five yards long about two or three yards from an area of asphalt at the top of the embankment. I take the reference to the asphalt to be a reference to the pathway in front of the clubhouse.

18 At no time did Mr Brown step onto the area covered by woodchips. It is clear on the evidence that the area covered by the woodchips was slightly to the left of the line on which Mr Brown was walking down the grassed slope. Mr Brown gave evidence that as he was walking down the grassed slope he slipped slightly and thinks that he turned to his left to tell the plaintiff to look out because it was a bit dangerous and that as he did so the plaintiff fell and landed on the woodchips. Mr Brown said that he slipped slightly because the grassed section he stepped on was very soggy under foot. He said that the ground he walked on before he slipped slightly was alright. He thought that the particular section where he slipped had become soggy because of run off from the men's tee.

19 Mr Brown continued to play golf at the golf course after the day of the accident. Some time after the day of the accident he noticed that the woodchips where the plaintiff had fallen had been taken away and that a gutter had been positioned near the asphalt to stop water running down the track on the slope where they had both walked on the day of the accident.

20 When Exhibit 1, the photograph showing the grassed embankment and sloped area on the eastern side of the men's tee and in front of the clubhouse, was shown to Mr Brown he accepted that they could have taken a different line when they walked down the slope. However, Mr Brown added that they took the line they did on the day of the accident because it was a well worn track. He gave evidence that there was no designated track as such. It is clear from Mr Brown's evidence that when he referred to a track he was referring to a line that had become apparent simply as a result of usage by golfers. Mr Brown gave evidence that he and the plaintiff took this track before the accident and that subsequently they have more or less used another track on the right or western side of the men's tee.

21 Mr Brown accepted that woodchips were used on some tracks around the golf course from greens to tees. He said that he had not noticed woodchips on the eastern side of the men's tee of the 10th hole before the date of the accident.

22 Mr Parker has been the supervisor of the golf course for the last 13 years. His residence is in the grounds of the golf course. During Mr Parker's time as supervisor his duties have included the maintenance of the golf course and at any one time he has had about 10 staff under his control to carry out the necessary maintenance.

23 Mr Parker gave evidence that for about the last three years and at the time of the accident woodchips have been used in the maintenance of the golf course. He said that the areas of woodchips were not made up of woodchips as "loose, independent bits". When asked whether they were the ones generally used he said, "No". He said that the woodchip material used in the maintenance of the golf course was a woodchip mulch which was an organic mulch "like a heavy material that actually binds to the soil". He gave evidence that in the old days holes were filled with sand which was abrasive and not ideal for grass to grow into. Sand was also subject to erosion. He said that the woodchip mulch tends not to erode and is a good medium for grass to grow into. He indicated that he has had success using the woodchip mulch to repair holes and reinstate grass on the gold course.

24 Mr Parker said that there has been a problem with water erosion in parts of the golf course. He has used two main methods to repair areas damaged by water erosion. They are first, re-turfing: he said that sometimes re-turfed areas are not stable if people walk on them. Secondly, filling the eroded areas with the woodchip mulch for the grass to grow back over. He said that erosion usually happens around pathways and that the woodchip mulch provides some stability and medium for the grass to grow into. He also said that he uses the woodchip mulch material on all of the pathways.

25 Mr Parker gave evidence that in wet conditions a woodchip surface, which I take to mean a woodchip mulch surface, would be better to walk on than a grass surface. He said that even a flat area of grass in wet or dewy conditions is a hazard. He agreed that slopes are the most hazardous locations and that water on a sloping grass surface can be hazardous. Mr Parker also said that if he had a choice of walking down a woodchip path or a grassed dewy path in the morning that he would rather walk down on the woodchips. Mr Parker also gave evidence that even an artificial or synthetic pathway down a slope can be slippery when wet.

26 Mr Parker works seven days a week and was working during all of July 1997 when the accident occurred. He completed an accident report form in relation to the accident on 23 July 1997. He made no mention of woodchips or woodchip mulch in the accident report and gave evidence that he cannot recall a one metre wide by about five metres in length area of woodchips at the location of the accident. He said that he would re-turf rather than fill a depression of this size with woodchip mulch because it would take too long for the grass to grow over such a large area. He also said that there has not been a depression of this size in the location of the accident site since he has been at the golf course. Mr Parker gave evidence that by the way the area of woodchips had been described it could be that the woodchip mulch was used to fill a series depressions with some untidy overflow or some sprinkled here and there between the depressions which from a distance may have looked like a little trail.

27 Mr Parker was shown Exhibit 1, the photograph of the grassed slopes on the eastern side of the 10th tee, and said that the area was structurally the same but perhaps aesthetically nicer as depicted in the photograph compared to the time of the accident. When the photograph was shown to Mr Parker it had the markings put on it by the plaintiff showing the line that the plaintiff walked down the slope on the day of the accident. Mr Parker gave evidence that golfers have been given the choice of "choosing their most easy access down" the sloped area and that this can been seen from the photograph. He added that if a designated pathway was constructed down the slope it could be just as slippery on a wet day as the grassed slope. He said that on a wet day he would have chosen to walk down the slope on a line further to the east of the line taken by the plaintiff. He agreed that a lot of golfers, although not all, took the line taken by the plaintiff and that it was not a short cut. He also said that the women's tee of the 10th hole could be accessed by a pathway on the western side of the men's tee.

28 Mr Parker was cross-examined about walking on the woodchips when wearing spiked golf shoes. He disagreed with the suggestion that spikes would not grip on the woodchip material used at the golf course. He thought that spikes would grip and indicated that the woodchip material was placed on pathways. When questioned about woodchips moving when they were stepped on he indicated that it had to be realised that the chips were not loose and were part of an organic mulch. When it was put to him that if someone walked on the woodchips the spikes on their golf shoes would not contact the ground underneath he pointed out that such would also be the case if the area was grassed.

29 Mr Parker was also cross-examined about the effects of water running down the slope and onto the woodchip mulch material. He said that water runs off the clubhouse building and onto a concrete concourse in front of the building and down the grassed sloped area in front of the clubhouse on the eastern side of the 10th tee. He said that the water "dissipates over the whole golf course gradually". He was not sure whether the concrete gutter was put in front of the clubhouse before or after the plaintiff's accident but indicated that it had not been as effective as hoped.

30 Mr Parker said that the water which ran off the clubhouse and concrete concourse would cause the grass on the slope to get wet but not squelchy. He said slopes get rid of water and that it would be the bottom of the slope that would get squelchy. He also indicated that while a woodchipped area on the slope would soak up water it would not get saturated because of the angle of the slope and the water running off the top of the woodchips. He also said that once woodchips had been used to fill up a depression it could no longer be said that there was a depression and so it was not a case of run-off filling a depression or hole with water. He also indicated that filling depressions with the woodchip mulch removed the danger of golfers losing their footing by stepping into a hole. Mr Parker said that the soil in the sloped area in question had a sand profile and was very firm.

31 Mr Parker also gave evidence that he does not know of any accident involving a slip or fall having been reported prior to the plaintiff's accident other than one which involved a golfer falling over a reticulation valve box. He indicated that traffic at the golf course is about 200,000 annually. The busiest days are Saturday, Sunday, Monday and Wednesday and "the heaviest traffic day" would be about 1,000. I am not sure whether these figures on traffic relate to the number of games or people but either way the number of people using the course would be relatively high.

32 Mr Parker gave evidence that at 6.45 am in July it would be dark. He added, "I thought that's near the shortest day of the year".

33 During examination-in-chief Mr Parker was asked and said:

"What's the regime of maintenance for detecting and preventing erosion at the club generally, in general terms? --- It would be as it arises or just before a - let's say winter, when you know that the weather is coming or a particular seasonal change. We try and get some jobs done, like helping for drainage and opening up the soil so the water doesn't cause any erosions, but during - usually directly after say heavy rainfall or something we can't prevent everything, so we will go out after a very heavy stormy weather, check the most severe areas, either cordon them off or fill with mulch, depending on what our priorities are."

34 Paragraph 6 of the statement of claim sets out the following particulars of negligence:

6.1 failed to ensure that the premises were safe for invitees to the premises;

6.2 provided a pathway with wood chips which had a tendency to slip and move whilst being walked on which was unsafe in all the circumstances;

6.3 failed to replace the woodchips with a safe walkway leading from the tenth tee;

6.4 failed to warn the Plaintiff of the danger of slipping on the pathway whilst on the premises;

6.5 failed to modify the pathway to ensure that it was a non-slip surface;

6.6 the premises exposed the Plaintiff to the risk and hazard of injury or damage."

35 The question of liability of the defendant is to be determined according to the Occupiers Liability Act 1985 ("the Act"). In Westralian Caterers Pty Ltd v Eastmet Limited (1992) 8 WAR 139, Malcolm CJ referred to the duty of care owed by an occupier to a person entering upon property at common law and the nature and effect of the Act. At p 145 his Honour said:

"The purpose of the Occupiers Liability Act was to achieve by statute what was achieved by the development of the common law by the decisions of the High Court. The statutory provisions did not create a new cause of action for breach of statutory duty. What they did was to replace the former common law rules regulating the standard of care owed by occupiers to persons entering the premises in given situations by a single standard of care in terms of the general duty of care referred to in Donoghue v Stevenson.

...

... In any action in which the duty of care provided for in the Act is relied upon, the question will be whether the occupier has taken reasonable care in all the circumstances. This is, in effect, the same question as arises in any ordinary negligence case."

36 Before a court comes to a question of the degree of care which is reasonable in the circumstances of the case there must be a danger on the premises 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. See Schmitz v Pipel (1988) A Torts Rep 80-178 at 67,667 per Brinsden J.

37 By s 5(1) of the Act:

"... 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 the person will not suffer injury or damage by reason of any such danger."

38 And by s 5(4):

"Without restricting the generality of subs (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 to 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;

(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."

39 Under s 4, the provisions which I have set out -

"shall 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 dangers -

which are due to the state of the premises or to anything done or to omitted to be done on the premises and for which the occupier is by law responsible."

40 I find that all of the plaintiff, Mr Brown and Mr Parker were credible witnesses. In particular I find that both the plaintiff and Mr Brown did their honest best when they gave their evidence. While I find that both of them are good and honest people I am not satisfied of the reliability of some parts of their evidence to which I will now refer.

41 I do not accept the plaintiff's evidence that prior to the accident he had not walked down the slope on the eastern side of the men's tee of the 10th hole on the same line as he did on the day of the accident. It is clear from Mr Brown's evidence which I accept on this point that both he and the plaintiff had walked that way down the slope before the day of the accident.

42 The plaintiff's statement of claim provides that the plaintiff slipped and fell on a woodchip pathway. Both the plaintiff and Mr Brown referred to an area of woodchips. On Mr Parker's evidence the woodchips used to maintain the golf course were not loose independent bits. Further, as I understand Mr Parker's evidence, the woodchips were pieces of bark and they formed an integral part of and so they were supported within the organic mulch mixture. I note that on one occasion the plaintiff referred to the woodchips as bark chips.

43 The question arises whether the plaintiff slipped and fell when he slipped on an aggregation of single and loose solid woodchips or a woodchip mulch mixture as described by Mr Parker. I accept that the plaintiff observed the woodchip material from about the top of the slope when he commenced to walk down the slope. It was probably in his general field of view as he walked down the slope. However I'm not satisfied, whatever the amount of sunlight at the time, that the plaintiff made any real attempt to check out the woodchip material or the composition of it before or as he walked towards is down the slope. Further and regardless as to whether or not the plaintiff's buggy would have obscured his view of the woodchip material as he stepped onto it I am not satisfied that the plaintiff looked down to the ground to observe the woodchip material and check on his footing when he stepped into the area where the woodchip material was located. Further again I am not satisfied that the plaintiff or Mr Brown carried out any inspection of the area in which the woodchip material was located that could base a reliable conclusion on the composition of the woodchip material and how it was spread on the surface of the slope. Although Mr Parker could not recall inspecting the area in question I accept his evidence that woodchip mulch as he described it rather than loose single pieces of woodchips was used in the maintenance of the golf course at the time of the accident. I am not satisfied on balance of what amount of woodchips if any was actually removed from the slope after the accident but in any event I do not consider this point of crucial significance in this particular case.

44 On balance I find that the plaintiff stepped onto woodchip mulch as described by Mr Parker ie, a mixture of pieces of bark and mulch, rather than an aggregation of single and loose pieces of woodchips.

45 I accept Mr Parker's evidence that he directs his staff and sees "the consequence of every job". I accept that he would have repaired an area of about one metre wide by five metres in length by re-turfing it rather than filling it entirely with woodchip mulch. I also accept that there was an area on the slope of those dimensions in which woodchip mulch was located but I'm not satisfied that such area was totally under repair and covered with woodchip mulch. I am not satisfied that such area included anything other than a multiple number of relatively small depressions interspersed on the grass slope which had been filled with woodchip mulch and which were surrounded by grassed areas on which woodchip mulch had been untidily sprinkled when the depressions were filled with the woodchip mulch or on which woodchip mulch had spilled over from the depressions.

46 I accept the evidence of Mr Parker in relation to maintenance. I am satisfied that the defendant's employees namely Mr Parker and the staff under his control carried out adequate inspections and maintenance of the golf course generally and some areas in particular including the area in question. The defendant is not under an absolute liability.

47 I do not accept that the plaintiff walked towards the area in which the woodchip mulch was located because he thought it was a pathway provided by the golf management for players to access the women's tee on the 10th hole or to exit the men's tee and walk to the 10th fairway. The plaintiff did not say that this was the case when he gave his evidence. He said that he followed "a slightly worn track where many people had walked down previously. It was still grass of course".

48 The plaintiff was walking the same line down the slope that he and Mr Brown had walked before. The photograph, Exhibit 1, shows that the plaintiff and Mr Brown had to walk much further beyond the area in which the woodchips were located to get to the women's tee of the 10th hole. The area in which the woodchips were located was surrounded by a vast area of grass on the sloping surface. Taking the plaintiff's line he would have had to have walked over grass, for six to seven metres on his evidence, to get to the area in which the woodchips were located and then, by reference to the photograph, after he had walked the length of the area in which the woodchips were located of about five metres he would have had to have walked over a grassed area for more than another six to seven metres to get to the women's tee of the 10th hole.

49 I find that the defendant did not provide any woodchip pathway or any pathway at all for golfers to walk down the slope on the eastern side of the men's tee of the 10th hole to get to the women's tee of the 10th hole or the 10th fairway. There was a track of some sort on the western side of the men's tee but so far as such access was concerned on the eastern side there was a vast sloping area and it was left to golfers to decide what route they took. I am not satisfied that the plaintiff went the way he did because he thought the area in which the woodchips were located was a pathway. I consider it likely that he went the way he did because he and Mr Brown had gone that way before. So also had lots of other but not all other golfers.

50 I am not satisfied that the plaintiff has established par 6.2 of the particulars of negligence namely that the defendant provided a pathway with woodchips which had a tendency to slip and move whilst being walked on which was unsafe in all the circumstances.

51 While I accept that the plaintiff slipped and fell I am not satisfied on balance on the evidence before me on why he did so. The plaintiff said that the spikes on his golf shoe must have hit on a piece of wood. In my opinion this was really speculation on the plaintiff's part. Mr Parker rejected the suggestion that spikes on golf shoes would not grip the mulch and bark mixture. I accept him as a reliable witness on this point.

52 There is no suggestion in the pleadings or in the evidence of the plaintiff that he lost his footing on the side of or in a hole. The suggestion was raised during the cross-examination of Mr Parker that a depression or hole on the slope filled with the woodchip mulch would have become saturated by water which had run down the slope and thereby rendered dangerous to golfers walking down the slope. I accept Mr Parker's evidence in relation to rain water running down the slope from the clubhouse and the concourse area. In particular I find that depressions filled with the woodchip mulch would not be any more saturated than the grassed areas around them. There is no doubt that Mr Parker gave evidence that water on a sloping grass surface was hazardous. His evidence that the bank at the time was slippery needs to be considered in the context of his evidence that a wet grass slope was hazardous and that he cannot recall a one metre wide by five metres in length area of woodchips or woodchip mulch in the location in question. At no stage did Mr Parker ever clearly say or clearly accept that water on the woodchip mulch on the slope was hazardous or slippery.

53 The plaintiff gave evidence that he walked very carefully down the hill. He was asked whether the fact that it had been raining the night before and may be several days before put him on guard in any way and he said "Not really". When asked whether the grass being wet and squelchy under foot was a warning to take a bit more care than usual he said "With spikes on your shoes and grass you don't slip". While I accept that the plaintiff believed this to be the case the evidence of Mr Brown that he slipped on the grass is enough to show that it is not necessarily correct. While I accept that the plaintiff exercised some degree of care when he walked down the slope it seems to me that he did not give proper and reasonable consideration to the wet conditions prevailing at the time.

54 I prefer and accept Mr Parker's evidence to that of the plaintiff and Mr Brown on visibility at about 6.45 am in July at the golf course. Mr Parker said that it would be dark at that time. This is the time that the plaintiff said the accident happened. He didn't say that it could have been later. Both the plaintiff and Mr Brown gave evidence about not teeing off until it was light enough to see the ball. They had not teed off before the accident happened. They were walking down the slope to take their position on the women's tee to do that.

55 I find that visibility would have been poor when the plaintiff and Mr Brown walked down the slope and that they would have had to have waited for sometime at the women's tee before it would have been light enough to tee off and see the ball land. This finding is clearly relevant to the degree of care exercised by the plaintiff for his own safety and his ability to make any detailed observation from a distance of the woodchips and how they were spread over the area in question.

56 I have already referred to Mr Parker's evidence that he would prefer to walk down a woodchip mulch path than a grassed dewy path in the morning. A key question in this case is not whether the wet grass slope constitutes a danger within the meaning of danger in the Act but whether woodchip mulch on the slope constitutes a danger under the Act. I say that because it was not until the plaintiff stepped onto the woodchip mulch that he slipped and fell. Having said that I wish to add that even if the plaintiff slipped and fell on the grass slope then my ultimate decision in this case would be the same.

57 On the evidence before me I am not satisfied that in wet conditions the woodchip mulch located on the slope on the eastern side of the men's tee of the 10th hole was a danger under the Act or gave rise to a foreseeable risk. If I am wrong about that then in my opinion it was no more than an everyday risk or danger which users of golf courses or other facilities with the same type of sloping ground must deal with in wet conditions by taking care of their own safety.

58 If the wet woodchip mulch in a section of the sloping area on the eastern side of the men's tee amounted to a danger under the Act then I am of the view that on the evidence in this case it amounted to less or at least no more of a danger than wet grass on the slope.

59 Pursuant to s 5(4)(a) of the Act the gravity and likelihood of the probable injury is a relevant consideration. In the 10 years before the accident Mr Parker did not receive any report at all of anyone slipping on the slope in question or anywhere else on the golf course.

60 Pursuant to s 5(4)(c) of the Act the nature of the premises is also a relevant factor. Golf courses are well known to have sloping grassed areas. It is also often the case as Mr Parker pointed out in his evidence that a clubhouse on a golf course is built on a high point of the grounds of the golf course.

61 Further to s 5(4)(f) of the Act the ability of the person entering the premises to appreciate the danger is also a relevant factor. In this particular case the photograph, Exhibit 1, shows that the slope in question was a relatively long and consistent slope and that its gradient was not excessive at all. It was readily visible with no hidden dangers. It was obvious that the ground was wet although it was not raining at the time of the accident.

62 Pursuant to s 5(4)(g) of the Act another factor to be taken into account is 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. In Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208 at 235 Kirby J said:

"Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be 'balanced out' before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that will put a brake on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law. Thus, under the consideration of the magnitude of the risk, an occupier would be entitled, in a proper case, to accept that the risk of a mishap such as occurred was so remote that a 'reasonable man, careful of the safety of his neighbour, would think it right to neglect it'. It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded again. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness."

63 Given my view of the evidence in this case that if the wet woodchip mulch on the slope was a danger then it was less or at least no more of a danger than the wet grass on the slope, if the wet woodchip mulch area should have been cordoned off or a warning sign erected in relation to it then the same should have been done for all of the wet grassed area on the slope. This would have likely required the 10th hole to be closed. If this approach was necessary then it being highly likely that there were other sloping areas on the golf course a decision would then need to be made on the closure of another hole or holes or perhaps even the whole golf course.

64 In winter there are lengthy time periods when it is not raining but the ground is wet from when it has rained earlier. To close a hole or holes on a golf course or even the whole golf course in such a situation or even if it was threatening to rain or raining at the time would in the vast majority of cases at least be an extreme solution when compared to the risk of the danger to the person. I accept Mr Parker's evidence that even a synthetic pathway may be slippery. Stairways are obviously out of the question given that nearly all golfers push or pull golf buggies.

65 Many of the considerations I have just mentioned would apply equally to a lot of public parks and ovals as they do to golf courses. There are no doubt many public facilities with grassed slopes. There are no doubt many public sporting facilities with at least two ovals or other shaped fields at different levels with sloping grassed areas connecting them. Grassed embankments may be incorporated into an open air sporting facility to provide spectators with a good view of the playing surface. To require these facilities to be decorated with signs or perhaps be partially or wholly closed when it had rained, is threatening to rain or is raining would be extreme and burdensome when compared to the risk of the danger to the person not to mention the likely widespread public dissatisfaction with such an approach.

66 The combination of all of these factors in this case far outweighs the combination of the other factors set out in s 5(4) of the Act namely, (1) that the plaintiff paid a fee to play golf on the course, see s 5(4)(b) of the Act, (2) that the defendant knew that the plaintiff was on the golf course, see s 5(4)(d) of the Act and (3) that the plaintiff was 79 years of age at the time of the accident and that the defendant would have known that the plaintiff was elderly, see s 5 (4)(e) of the Act. In relation to the plaintiff's age it is also relevant to note, and I hasten to add to the plaintiff's credit, that he had been playing golf regularly at the golf course for about 10 years without mishap before the accident.

67 For all of these reasons I am not satisfied that the plaintiff's slip and fall when he stepped onto some woodchip mulch when walking down the slope on the eastern side of the men's tee of the 10th hole of the golf course involved any breach by the defendant of any duty of care owed by it as an occupier of the land.