that statement was made in the context of pedestrians using an outdoor footpath where, as their Honours noted, " the ground may not be as even, flat or smooth as other surfaces . " (emphasis supplied).
48 In my opinion, the nature of the foyer and, in particular, the floor upon which the appellant entered, was not such as to justify a finding that she had failed to take reasonable care for her own safety because, at the critical moment, she was not looking at the floor immediately in front of her. The nature of that surface was such that it would not be reasonable for her to have either expected or anticipated that relatively small rectangular mats up 15mm thick would be obstructing her path of travel.
49 This is not to say that his Honour erred when, quite properly, he said that an occupier is entitled to assume that most entrants will take reasonable care for their own safety. Further, there are some situations where the risk of injury is so obvious that there can be no breach of the occupier's duty of care in failing to draw attention to what is a blatantly obvious danger. Thus in Van Der Sluice v Display Craft Pty Limited [2002] NSWCA 204, Hayden JA, with whom Meagher JA and Foster A-JA agreed, said this (at [74]):
"…The fact that the higher up a ladder one moves the more care one must take for one's own safety is one of those simple facts affecting human existence in the physical world which adults in industrialised societies have learned by the time, or indeed well before the time, they have become adults. It is a fact as fundamental, as elementary, as clear and as well known as, for example, the fact that it is dangerous to behave boisterously near pots cooking on stoves, the fact that broken glass needs to be carefully handled when picked up, the fact that rocks along the seashore can be slippery, the fact that shells in the sand of beaches can be sharp, and the fact that when moving about rubbish dumps one must bear in mind the possibility that rubbish may be lying there. These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks."
50 The types of situations exemplified by Heydon JA in the above passage are not dissimilar to the example given by Mahoney JA in Phillis v Daly of a person slipping or falling in a room containing desks or tables and hitting his or her head thereon. They are matters which, as Heydon JA points out, no adult need be told about and which any adult can be trusted to guard against as they are part of the equipment of all normal adult human beings; part of the normal risks of everyday living.
51 However, in the present case it cannot be said that the existence of these mats in the Casino foyer and around the corner from where the appellant entered, such that they were at least partially hidden by the vertical sign next to the column, was part of the normal risks of everyday living. The position may have been different had the weather been inclement and an appropriate mat had been placed immediately inside the entrance doors to the foyer to enable patrons to wipe their feet.
52 It is true that the primary judge considered that mats on floors in foyers of large commercial and/or recreational premises were a matter of common occurrence, but there was no evidence to support this generalisation and, with respect, it is not self-evident. It would depend upon the nature of the foyer and the location of the mat. The appellant was cross-examined to suggest that it was her general experience of life to find on occasions mats on the floor of various sorts of office and other types of buildings, which she denied.
53 As I have indicated, as a matter of common occurrence one might expect a mat immediately inside the entry doors to a foyer in wet weather; one might even anticipate a large decorative mat in the middle of a reception area of an office building or the like. But in my opinion, no proper evidentiary basis existed to justify his Honour's finding in the present case that the mats upon which the appellant tripped should have been anticipated by her so that her failure to perceive their existence was a result of her "own careless disregard for the normal risks of everyday living". In my opinion, his Honour clearly erred in so finding.
54 The primary judge disagreed with Dr Emerson that the mats were not "located correctly". As I recorded in [17] above, Dr Emerson considered that the mats were in the direct pathway of oncoming pedestrians including the appellant so that when not in use they ought to have been stored in a proper location.
55 It is clear from the video that in respect of persons entering the foyer through the entrance door utilised by the appellant and who, like the appellant, then moved to the left around the fixed notice board behind which was the column, that such a person even if looking at the floor would not have seen the mats until they were within a metre or two of them. While one can accept, as the primary judge did, that the respondent used the mats for a useful and legitimate purpose, they were not being used for that purpose at the time of the appellant's accident. Further, there was no evidence, because the respondent did not call any, as to when or if they had been used for that purpose on that evening, how long before the accident they had been used for that purpose and whether or not the Casino employee who had last utilised them had done so only a short time prior to the accident or as to why he had left his post (as it were).
56 The evidence of the appellant and that of Dr Emerson was, in my opinion, such as to entitle a tribunal of fact to draw an inference that the mats had been left in the location where the appellant tripped on them for no good or apparent reason even if, at some point of time prior to the accident, they had been utilised by a security officer. In these circumstances, the primary judge was in error in failing to apply the principle of Jones v Dunkel: It was not a question of utilising that principle to fill a gap in the appellant's case: rather, the absence of any evidence from the respondent enabled the inference to which I have referred to be more confidently drawn: see Payne v Parker [1976] 1 NSWLR 191 at 200-202 per Glass JA; Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 at 143.
57 In Schellenberg, Gleeson CJ and McHugh J, citing Cross on Evidence, 6th Aust Ed (2000) [1215] noted that the rule in Jones v Dunkel only applied where a party is "required to explain or contradict" something. In the present case, the appellant's evidence in chief was such that the respondent was required to explain the presence of the unattended mats in the particular location in question. The video makes clear that the appellant was attended by at least one member of the Casino staff who called the Casino paramedic who is seen taking notes and escorting the appellant and Ms Spellacy up the escalators. Common sense would indicate that an incident report was prepared. The identity of those on duty in the foyer on the evening in question would, no doubt, be available from the respondent's records relating to staff rosters. There was no explanation as to why the relevant personnel were not called thus enabling the inference to be drawn that they would not have been able to assist the respondent's case as to the justification, if any, for locating the unattended mats in what was, according to the video, a busy pedestrian thoroughfare within the foyer.
58 Although it is true that there was no evidence of other accidents with respect to mats in the foyer prior to the appellant's accident, it is noteworthy that, shortly after her accident, another patron tripped on the same mats but fortunately was able to recover his balance and to proceed uninjured. No doubt, seeing the appellant on the floor distracted that person, but he had no reason to expect or anticipate that the granite surface of the foyer would be obstructed by mats of the dimensions of those the subject of this case. This evidence, in my opinion, simply confirms the danger of leaving such mats unattended in such a location where their presence would be neither expected nor anticipated given the nature of the surface of the foyer floor.
59 It is true that, as McHugh JA observed in Gorman v Williams (1985) 2 NSWLR 662 at 681 (cited by Kirby P in Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 at 516), that not every real risk must always be avoided. This is because the risk's occurrence may be so unlikely, or its likely consequences so trivial, that a reasonable person in the circumstances may not consider it to be worth either the trouble or expense to remove or avoid it. However, in the present case, the magnitude of the risk to a patron of the Casino tripping on the mats was not only real but also anything but slight - serious injuries could well result. Furthermore, the probability of the risk materialising was anything but low as the video demonstrates. In my opinion, there was no justifiable basis for his Honour's findings to the contrary.
60 For the foregoing reasons I am of the opinion that the primary judge erred in finding that the respondent had not breached its duty of care to the appellant. In my view it clearly did. There should be judgment for the appellant on liability and, subject to the question of contributory negligence, the matter should be remitted to the District Court for the assessment of damages only.