Erickson v Bagley [2015] VSCA 220

1 The applicant commenced proceedings in the County Court claiming damages for injuries that he sustained on 29 June 2010 while walking on the driveway of premises owned and occupied by the respondents on the Maroondah Highway, Healesville. He alleged that his injuries were caused by a breach of the duty owed to him by the respondents and also by a breach of contract between himself and the respondents. The case was heard by a judge sitting alone. In a reserved decision, the judge held that the applicant had failed to establish that the respondents had breached their duty of care to the applicant. His Honour also held that he was not satisfied that any alleged breach of duty by the respondents would have caused the injuries sustained by the applicant. Accordingly, the applicant's claim for damages was dismissed with costs. The applicant now seeks leave to appeal the whole of the judgment.

2 Before the hearing of the application, the Court informed the parties that it would hear and determine the appeal instanter if the application for leave was granted.

3 The respondents' property was described by the judge as a semi-rural property comprising some two acres. The respondents purchased the property in 1994. In addition to the house on the property, there was also a garage, with a loft above it. The respondents converted the loft to a residence. For some time, they operated the loft as a bed and breakfast facility providing overnight accommodation for tourists and other persons.

4 The respondents planned to depart the premises in June 2010 in order to undertake an extensive caravan holiday in a warmer climate. Ordinarily, they did not conduct the bed and breakfast facility at the loft while they were absent from the premises. However, they were contacted by another resident of Healesville, Murray Hardinge, who requested them to provide some accommodation to the applicant. After meeting with the applicant, the respondents agreed to allow him to reside in the loft.

5 There was some dispute in the evidence as to the date upon which that agreement was made. The applicant claimed that the relevant conversations took place in early June 2010, whereas the first respondent stated that the conversations did not occur until late June. There was also an issue at trial as to the terms upon which the applicant was to occupy the loft. According to the applicant, he was required to pay a rental of $300 per week, with a down payment of $1200. On the other hand, the first respondent stated that the applicant was not required to pay any rent, but that he paid some of the outgoings. Those issues were not resolved by the judge. It is common ground that those issues are not relevant to the matters which need to be determined on appeal. In particular, the resolution of those factual issues does not affect the nature and scope of the duty of care that the respondents owed to the applicant as occupiers of the premises.

6 The loft could be accessed from the Maroondah Highway by a driveway which extended some 30 metres on a gentle slope. On the left-hand side of the driveway was a pergola enclosing some garden furniture. Immediately adjacent and to the right of the pergola was the front door of the loft. The driveway was constructed of Lilydale toppings. The first respondent gave evidence that he regularly maintained the driveway by raking it.

7 On the right hand side of the driveway, and immediately before the loft, there was situated a fence consisting of approximately four panels. Each panel comprised two rails, supported by posts. At the base of the panel closest to the loft was a sleeper which was underneath and parallel with the lower rail.

8 On the evening of 29 June 2010, it had been raining. The applicant had parked his vehicle in the driveway so that there was approximately a one metre access between the driver's door and the fence that we have just described. The applicant prepared and ate a dinner of King prawns and salad. After dinner he cleaned up, and decided to take the prawn shells out to the main rubbish bin that was located some 15 metres up the driveway. Accordingly, he opened the blind to the front of the loft, and turned the lights on in the lounge room. He then walked around the front of his car and under the pergola area to obtain a plastic bag from a green rubbish bin that had been placed there. He emptied his food scraps, and other household garbage, into the bag, and then took that bag to the main wheelie bin. Having deposited the bag there, he then walked back down the driveway towards the house on the right-hand side of the drive.

9 In his evidence, the applicant stated that when he had come to the last panel in the fence on the right-hand side immediately before the loft, he placed his foot in a puddle of water. He reacted by removing his foot and moving it to the right. As a consequence, he placed his foot on the end of the sleeper that was on the ground. The surface of the sleeper was wet and slippery. As a result, his foot slipped forward and to the right. The applicant grabbed for the rail, and in doing so he caught his elbow on the top of the rail. He then fell and landed on his elbows. As a consequence, he claimed that he suffered injury to his shoulder.

10 The claim made by the applicant was based on two principal grounds. First, the applicant claimed that the driveway was slippery, uneven and in an unsafe condition. The judge accepted that the respondents had taken all reasonable steps with respect to maintaining the state of the driveway. His Honour rejected the applicant's evidence as to the dimensions of the depression in which the puddle, in which he stood, had formed. The applicant does not challenge that finding on this application.

11 The second basis of the applicant's claim was that the respondents had failed to provide any or any adequate lighting to the area in which he fell. The applicant's submission in relation to that aspect of the case focussed, substantially, on evidence that the first respondent had disconnected a sensor light, which would otherwise have provided illumination to the area on the driveway on which the applicant fell.

12 In particular, it was contended on behalf of the applicant that the respondents were negligent in disconnecting the sensor light, before they departed on holiday, or alternatively in failing to advise the applicant of the existence of the sensor light, and of how he might reconnect it.

13 The judge noted that the plaintiff's claim was based on a breach by the respondents of the duty of care that they owed to the applicant as occupiers of the premises pursuant to s 14B(3) of the Wrongs Act 1958 ('the Act'). His Honour referred to s 48(1) of the Act, and observed that it was necessary to identify the risk of harm, against which the applicant alleged the respondents had failed to take reasonable precautions. The judge defined that risk as follows:[1]

It seems to me that the risk to be assessed by a reasonable defendant would have to involve an assessment, at the time of the commencement of the plaintiff's residence, [of] the probability of the following risk eventuating:

After a period of rain there may be an accumulation of water in a depression such as a wheel mark from a motor car or even a water caused erosion, which although not creating a slipping hazard per se, may result in an entrant to the premises placing his or her foot in a water-filled depression and then stepping sideways onto a sleeper which marked the boundary of the driveway, and which may be, itself, slippery when wet, in circumstances where the entrant has chosen not to utilise any artificial light source.

14 The judge further noted that counsel for the applicant had submitted that the risk of harm in the present case 'was the risk of a person, such as the plaintiff, walking over the driveway at night and stumbling or falling because of the state of the surface of the driveway in complete darkness.' His Honour considered that that formulation cast the risk of harm '... in too broad a fashion'. His Honour further held that, in any event, even if the risk was as broad as that postulated by the applicant's counsel, he considered that the probability of that risk materialising was so low that a reasonable occupier would not have been required to take any further steps than those taken by the respondents, which was to place a sensor light in an obvious position with an electrical power source readily accessible. The judge stated that, indeed, in a rural area, where the entrant to the premises was either a tenant or an invitee, the state of the driveway was not such that any permanent light source was required to be provided by the occupier. His Honour considered that an occupier, looking prospectively at any risk identifiable with respect to the driveway, would expect that the applicant would either provide his own artificial light source or connect the sensor light to the electricity supply, both of which were readily ascertainable.

15 By the first ground on which the applicant seeks leave to appeal, it is contended that the trial judge erred by failing to properly apply s 48 of the Act. In particular, it is submitted on behalf of the applicant that the judge erred in his identification of the risk of harm referred to in s 48(1). For that purpose, it is necessary to refer, briefly, to the evidence given relating to the state of the lighting pertinent to the driveway.

16 The applicant, in his evidence, stated that when he spoke with the first respondent about occupying the loft, the first respondent did not say anything to him about lights that were available at the front of the premises and near the driveway. The applicant said that there was a set of garden lights, but only a couple of them worked. When he went outside, he would open the vertical blinds at the front of the loft, and turn the light on inside the loft. He said that he had looked for lights outside, but there were not any lights at the front of the loft that would come on automatically. When he went under the pergola area, there was sufficient light from inside the loft. However, it was very dark on the section of the driveway on which he fell. The top of the driveway was quite visible because of the glow of the town lights. However, it was very dark at the point at which the accident occurred. He said that he did not see the puddle in which he placed his foot.

17 In cross-examination, the applicant agreed that there were a couple of motel lights out on the roadway, and there was also a street light, out the front, that illuminated the top of the driveway, where the wheelie bins were. He denied that for a semi-rural property, the respondent's premises were quite well lit. He agreed that he did not feel the need to use a torch when traversing the driveway. He was aware that there were some dark areas in the driveway.

18 The applicant's son, Trent Erickson, also gave evidence. He stated that he came to live at the loft after his father had suffered injury to his shoulder. He said that the area on the part of the driveway, at which the applicant's injury occurred, was dark at night. As a result, he looked for any external light, but was not able to find one. The garden lights did not produce sufficient illumination to provide any visibility. In cross-examination, Trent Erickson stated that he could not recall whether there was lighting at the top of the driveway. He agreed that he was not paying much attention to the state of the lighting when he stayed at the loft.

19 Murray Hardinge gave evidence about the circumstances in which he introduced the applicant to the first respondent. He said that after the applicant commenced to live in the loft, he visited the applicant about four times, including a couple of times at night. He said that when he did so he used a torch to illuminate the driveway. He could not see the ground surface clearly, because there were no other lights on, and the battery of the torch that he was using was nearly flat. Mr Hardinge did not see any artificial light illuminating the outside of the loft. He said that on the second occasion on which he visited the premises, he made sure that his torch had a good battery in it.

20 Mr Hardinge's wife, Julieanne Hardinge, gave evidence that she visited the applicant approximately six times while he was residing at the loft, and, with the exception of one occasion, each of those visits occurred in the evening after dark. She would park her vehicle at the top of the driveway and use the light in her telephone to see where she was going. Mrs Hardinge stated that the visibility outside the loft at night was 'pretty much pitch black', and that was why she used the light on her telephone so she could see where she was going.

21 The first respondent, William Bagley, gave evidence about the circumstances in which he agreed to permit the applicant to use the loft. He stated that he regularly maintained the driveway by raking it. He had never had any problems with water accumulating on the driveway. To his knowledge there had been no other incidents occurring on the driveway to the loft, and he had never received any complaints regarding the condition of the driveway. He agreed that there was no external light at the front door of the loft. However. the area of the driveway around the pergola was well lit when the lights inside the loft were switched on. He said that there was a sensor light attached to the wooden strut of the pergola. However, when he went away, he would unplug that light to avoid wasting electric power, because the light would be triggered by anything, such as an animal or bird, moving around outside.

22 The first respondent stated that the street lights, that were across the road, would illuminate the driveway to a point just past the pergola. He said that to that point it was well lit from the street light. He had walked the driveway many times at night and had never had any trouble. He himself did not use a torch while traversing that area.

23 In cross-examination, the first respondent stated that the sensor light had been operational, but that he may have disconnected it, because he would do so whenever the second respondent and he went away. He agreed that he did not tell the applicant about the sensor light and how it operated. He agreed that the sensor light created a very bright floodlight, and that it illuminated the driveway outside the loft well. The first respondent stated that the sensor light, when connected, provided very good lighting for people walking down the driveway to the loft.

24 The first respondent's daughter, Brooke Coleman, also gave evidence on behalf of the respondents. She stated that while her parents were away, she would look after the property, by collecting the mail and tending to any plants. She said that the premises were very well maintained. Mrs Coleman had previously lived in the loft for a period up to 2006. She said that the sensor light was not connected at that time. She did not need to use a torch when she was walking up or down the driveway. She was not aware of any previous incidents involving anyone tripping or falling or slipping on the driveway. In cross-examination, she agreed that the street light did not illuminate the point at which the applicant claimed to have sustained his injury.

25 In support of the first ground, counsel for the applicant submitted that, for the purposes of s 48(1) of the Act, the judge adopted a formulation of the risk of harm that was too narrow and excessively specific. In particular, it was submitted that the applicant was only required to demonstrate that it was reasonably foreseeable to a person in the position of the respondents that there was a risk of the class, kind or type of harm which the applicant suffered. The applicant was not required to prove reasonable foreseeability of the precise mechanism of harm by which the applicant suffered his injury. It was further submitted that the judge then confused and conflated the analysis as to foreseeability of the risk of harm, with the analysis as to the precautions which the respondents were required to take in respect of that risk pursuant to s 48(2) of the Act. Thus, it was contended, the judge's analysis of foreseeability was confused. The judge concluded that the state of the driveway was not such that any permanent light source was required to be provided by the occupier. Yet his Honour concluded that the occupier could expect that the applicant would have provided his own light source. It was contended that those two conclusions are inconsistent.

26 It was further contended that it was not open to the judge to hold that an occupier would have been entitled to expect that the applicant would provide his own artificial light source, such as a torch, if he chose to traverse the driveway in darkness, as the first respondent did not give evidence that he had any such expectation.

27 Counsel for the applicant further submitted that the evidence established that the risk of harm was in fact foreseen by the respondents. That evidence included the fact that the sensor light was ordinarily plugged in and working, and that it provided very good lighting for people walking down the driveway to the loft. Thus, the sensor light would have illuminated the area in which the applicant fell. When the light was not connected, parts of the driveway were in darkness at night. The premises were let out as short-term bed and breakfast accommodation. It must have been anticipated that persons, relatively unfamiliar with the premises, might need to traverse the driveway on foot at night.

28 It was further submitted on behalf of the applicant that the factors, relevant to the analysis required by s 48(2) of the Act, weighed in favour of the respondents providing an operating sensor light in order to illuminate the driveway. Alternatively, and at least, they required the respondents to inform the applicant of the location of the sensor light, and to advise him that it was unplugged. Those factors included that: there was a significant probability that an entrant to the property, walking on the driveway in darkness, might stumble or fall; in such an event serious harm might be suffered as a result of such a fall; and there was virtually no burden on the occupier involved in taking such a precaution.

29 In those circumstances, it was submitted that the trial judge erred in holding that, pursuant to s 48(1) of the Act, the respondents were not negligent in failing to take precautions against the risk of injury to the applicant.

30 In response, counsel for the respondent submitted that the characterisation of the risk, for the purposes of s 48(1), required attention to the particular circumstances of the injury that occurred. In Roads and Traffic Authority of NSW v Dederer,[2] the High Court held that the characterisation of the risk must not be so wide, or so unrelated to the harm that eventuated, as to obscure the true source of the potential injury. On the case made on behalf of the applicant, the source of the relevant risk was the accumulation of water in a depression created by a tyre track, in which the applicant put his foot, which caused him to react by then placing his foot on the sleeper, thereby resulting in him slipping. The applicant had pleaded the case as one in which his foot fell into a hole. In those circumstances, it was submitted that the characterisation of the relevant risk, formulated by the trial judge, was correct. On the other hand, if the risk, against which the respondents were required to take precautions, was that a person could stumble or fall on the surface of the driveway in darkness, the consequence would be that every owner would be required to have a permanent source of illumination for the entrance to his or her property at night. Such a requirement would not be reasonable in the circumstances.

31 It was submitted that if the risk could be defined in the wider manner contended for by the applicant, reasonable care did not require the respondents to provide a permanent sensor light to illuminate the whole of the driveway. The property was situated in a typical semi-rural area, the applicant was familiar with the driveway, and there was no particular or unusual hazard associated with the surface of the driveway of which the respondents were aware. The evidence, accepted by the trial judge, was that there were no potholes or any other hazards in or on the driveway. Rather his Honour was satisfied that the driveway had been kept in a very tidy condition by the respondents. It was open to the judge to conclude that an occupier of such premises, in the position of the respondents, would have been entitled to expect that the applicant would provide his own artificial light if he were to seek to traverse the driveway at night-time. It was not to the point that the first respondent did not give evidence that he expected the applicant to use a torch. The question whether the risk was foreseeable, and the precautions that would have been taken by a reasonable person in the position of the respondents, requires an objective analysis from the viewpoint of the reasonable person. His Honour's conclusions were supported by the fact that there was no history of any previous reported incidents associated with the use of the driveway, and no complaints had been made to the respondents regarding the lack of lighting on the driveway.

32 As occupiers of the premises, the respondents owed the applicant a duty, pursuant to s 14B(3) of the Act, to take such care as in all the circumstances was reasonable to see that any person on the premises would not be injured by reason of the state of the premises, or by reason of things that had been done, or omitted to be done, in relation to the state of the premises. That duty was qualified by s 48 and s 49 of the Act. Section 48 provides:

(1) A person is not negligent in failing to take precautions against a risk of harm unless -

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

(3) For the purposes of subsection (1)(b) -

(a) insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and

(b) risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.

33 As with the common law[3], in defining the content of the duty of care, the section focuses on the identification of the risk, its foreseeability, the probability of the risk, and the reasonableness of precautions which are alleged to be required to address that risk. Thus, the first step in the analysis requires the appropriate identification of the risk against which it is alleged that a particular defendant failed to exercise reasonable care. Commonly, the proper identification of the risk can be difficult, if not problematic.[4] Necessarily, the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred.[5] However, the risk, referred to in s 48, is not to be confined to the precise set of circumstances in which the plaintiff was injured. It is well established that, in order that a defendant be held to be negligent, it is not necessary that that defendant should have reasonably foreseen that the particular circumstances, in which the plaintiff was injured, might occur. Rather, what must be reasonably foreseeable is the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred.[6]

34 The decision of the Court of Appeal of New South Wales in Port Macquarie Hastings Council v Mooney[7] is a useful illustration of the foregoing point. In that case, the respondent had set out to walk home at sunset from a supermarket. She proceeded along an unlit gravel footpath, that had been recently completed by the appellant council as a temporary measure, pending construction of a new well-lit path. After the respondent had walked for some distance, it became very dark. As she approached a sharp deviation in the path, she strayed from the path, walked for a short distance, and then slipped into a nearby stormwater drain, thereby suffering injury. In identifying the relevant risk, for the purpose of s 5B of the Civil Liability Act 2002 (which is identical to s 48 of the Act), Sackville AJA (with whom Emmett JA and Simpson J agreed) stated:[8]

The risk of harm that materialised in this case was not, as the primary judge's formulation perhaps implies, that a pedestrian might become disoriented in complete darkness and fall directly from the edge of the footpath into the stormwater drain. Nor was the risk of harm simply that a pedestrian unable to follow the path would inadvertently leave the footpath as it deviated sharply near the particular crossover traversing the stormwater drain and suffer injury as a consequence. The relevant risk of harm created by the construction or completion of a footpath was that in complete darkness a pedestrian might fall and sustain injury by reason of an unexpected hazard on the path itself (such as an unsafe surface or variation in height) or by unwittingly deviating from the path and encountering an unseen hazard (such as loose gravel, sloping surface or a sudden drop in ground level). The risk of harm created by the construction of the footpath no doubt included the risk that a pedestrian would deviate from the footpath near the crossover and slip on loose gravel on the edge of the stormwater drain. But the risk of harm created by the construction of the footpath was not confined to the particular hazard that caused the respondent to suffer an injury.

35 For the purpose of each of the sub-paragraphs of s 48(1), the Court must consider the question of the foreseeability of the risk, its probability, and the reasonableness of precautions to protect against it, from the viewpoint of the defendant in the circumstances that were known, or ought to have been known, to the defendant. Such an analysis must be prospective, and not retrospective.[9]

36 Section 48(1)(b) requires a plaintiff to establish that the risk was 'not insignificant', as defined by s 48(3). By selecting the phrase 'not insignificant', the legislature has postulated a test that is more demanding, for a plaintiff, than the common law test, although '... not by very much'.[10] In that way, the statute has sought to ensure that liability is not imposed on a defendant too readily.[11]

37 It is important that the Court not adopt a mechanical or formulaic approach in applying the three prerequisites specified in s 48(1). Ultimately, the content of the standard of care, required of an alleged tortfeasor, is an issue of fact, which is to be resolved by an exercise of common sense, taking into account the jury's (or, in the relevant case, the judge's) worldly experience. Where, as in this case, the alleged risk attaches to a domestic premises, it is important to bear in mind the observations of members of the High Court in Neindorf v Junkovic,[12] that few people live in premises that are completely free of hazards. In that case, the respondent was injured when she tripped on an unevenness in the driveway of the appellant's home when she attended the appellant's premises for the purposes of participating in a garage sale. Hayne J stated:

In the present case, the relevant danger was presented by the uneven surface of the appellant's driveway. Neither the fact that the driveway paving was uneven nor the degree of unevenness ... is or was at all uncommon in the driveways of suburban housing. Would it have been reasonable for the occupier to eliminate or reduce the risk of tripping or stumbling on or over the unevenness, or to warn all entrants to watch their step?

It may be that some means of reducing the danger could readily have been found. ... But would it have been reasonable for an occupier embarking upon a garage sale to take any of these measures?

When that question is examined from the proper perspective, without knowing what in fact happened to the respondent, the answer is No. Any suburban house presents many features that can lead to injury. In that sense, any suburban house presents many dangers. The appellant, as occupier, was not required to reduce or eliminate the danger presented by an unevenness in the driveway that was no larger than, and no different from, unevenness found in any but the most recently installed suburban concrete driveway. Nor was the occupier required to give some warning to entrants ... The fact that the appellant had invited the public to attend a garage sale, and display the goods for sale as she did, requires no different conclusion.[13]

38 Similarly, in Thompson v Woolworths (Qld) Pty Ltd[14] the High Court, in its joint judgment, stated:

The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community's standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all the dangers that await them if they fail to take care for their own safety. ...

The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.[15]

39 Those observations are important when considering each of the three issues posited by s 48(1) of the Act, namely, whether the postulated risk was foreseeable, whether it was not insignificant, and whether in the circumstances a reasonable person in the defendant's position would have taken the precautions postulated by the injured plaintiff.

40 Taking those principles into account, in our view the judge did adopt an approach that was too narrow in defining the risk for the purposes of s 48(1)(a). The risk, as defined by the judge, was confined to the specific concatenation of circumstances in which the plaintiff was injured. However, as we have stated, what must be reasonably foreseeable is not the precise set of circumstances in which the harm occurred, but, rather, the type or nature of the event, or harm, that eventuated. Consistent with that principle, insofar as the case made on behalf of the applicant focused on the state of the lighting at the point at which he fell, the relevant risk was that a person might fall due to an unseen hazard or irregularity in the surface of the driveway.

41 However, that analysis of the risk is problematic for the applicant. In our view, the judge was correct in observing that if the risk was that postulated on behalf of the applicant, the probability of that risk materialising was so low that a reasonable occupier would not be required to take any further steps than those taken by the first respondent.

42 In the present case, the judge rejected the evidence of the applicant as to the state of the driveway. He accepted that the overall state of the premises (including the driveway) was very tidy, that there was no evidence the driveway was slippery, even when wet, and that there were no irregularities such as potholes in it. Further his Honour did not accept the evidence of the applicant as to the dimensions of the depression in which he placed his foot, and in which the puddle had formed. The applicant does not seek to impugn those findings. Thus, on this application, the applicant's case is confined to the failure of the respondents to provide artificial lighting for the whole of the driveway, in circumstances in which the driveway had been well maintained by the respondents.

43 Further, there was uncontradicted evidence by the first respondent, and by his daughter, Brooke Coleman, that there had been no previous reported incidents in relation to the driveway, and that no-one had made any previous complaint as to the state of the lighting, or the state of the driveway. The first respondent, and Brooke Coleman, had each traversed the driveway without incident in complete darkness in the past. Ultimately, the risk postulated by the applicant is that he could not see any unexpected unevenness in the surface of the driveway because it was in darkness. However, the state of the lighting, at the time of the incident, was plainly obvious to the applicant. So, too, was the risk that he might stumble or fall over any unexpected unevenness, if he did not use an artificial light such as a torch.

44 In that context, the trial judge was correct to conclude that an occupier in the position of the respondent, would have been entitled to expect or assume that a person, walking along the driveway in darkness, would, if necessary, use an artificial source of light, such as a torch. If the duty of care, imposed on the respondents, required them to provide lighting, where the applicant had chosen not to use any artificial lighting himself, such a proposition would have required the respondents to take a precaution for the applicant's own safety that the applicant himself did not see fit to take.

45 In that respect, it is not to the point that the first respondent did not give evidence that he expected or assumed that if the applicant had been minded to traverse the driveway in darkness, he would have used a torch or some other similar form of illumination. For the purposes of s 48(1)(a), the applicant must establish that the risk was foreseeable, in the sense that it was a risk of which the respondents knew or ought to have known. There is no evidence that the respondents knew that there was a risk of the applicant, or any other entrant, falling or coming to grief on the driveway when it was in darkness. Indeed, to the contrary, the evidence of the first respondent and his daughter was that they had each traversed the driveway in darkness without incident. Neither of them had heard or knew of any previous incident arising out of the condition of the driveway, or any complaint of any such incident.

46 Thus, the question, whether the risk posited by the applicant was foreseeable, involved the question as to whether the risk, of a person stumbling or falling on the driveway in darkness, was a risk of which the respondents ought to have known. That question is to be determined objectively, taking into account the particular facts and circumstances subjective to the respondents. Similarly, the issues as to whether such a risk was not insignificant, and whether a reasonable person in the respondents' position would have taken the precautions alleged by the applicant, are to be determined objectively, again taking into account the particular subjective position of the respondents. For the reasons we have stated, we consider that the judge was correct in concluding that a reasonable occupier, looking objectively at the risk with respect to the driveway, would have expected that the applicant would have at least used his own artificial light source, such as a torch.

47 It is a matter of abundant common sense that any person, who chooses to traverse a gravel driveway in darkness, without using artificial lighting, does take a risk that he or she might fall or trip over some unexpected obstruction, object, or unevenness in the surface of the driveway. The duty to take reasonable care imposed on an occupier such as the respondents, in the circumstances of this case, did not, in our view, require the respondents to take precautions for the applicant against any such obvious risk, where the applicant himself had chosen not to do so.

48 The above analysis does not ignore the fact that the respondents did have in place a sensor light, and that the first respondent had disconnected that light, before the respondents departed on their holiday. Clearly, in hindsight, it would have been preferable if the respondents had left the light connected. However, that observation does not detract from the matters to which we have referred. As we stated, there was nothing unusual or concealed in the type of hazard described by the applicant, and which caused him to fall on the driveway. It was obvious to the applicant that the driveway was in darkness. It was within his power to take appropriate precautions to prevent the type of accident that occurred. As the High Court observed in Neindorf[16], no residential premises (whether semi-rural or suburban) are without hazards. The respondents, as occupiers, could not have been required to protect the applicant against all such hazards, particularly of the type of which the applicant has complained in the present case.

49 In that context, the following observations, by Harper JA (with whom Warren CJ and Kyrou AJA agreed) in Bainbridge v James[17], are apposite:

There is a risk attached to almost every human endeavour. It may be the case on occasion that protection is afforded [by a defendant] even against risk that is not reasonably foreseeable. But while that risk remains one properly so described, there can be no duty of care to avoid it, even in circumstances where unnecessary steps have been taken to do so. It would be wrong were the subjective concerns of the risk-averse person to set the standard of care by which other persons are bound.

50 In terms of the analysis required by s 48(1), insofar as any risk of harm was comprised in the lack of lighting on the driveway, the applicant failed to establish that that risk was not insignificant. As we have stated, the driveway was in good repair. The respondents had not experienced, and had no knowledge of, any prior incident or complaint concerning the state of the driveway, or the lack of lighting on it at night. They were entitled to assume that the applicant would exercise common sense, and reasonable care, when traversing the driveway at night. For the same reasons, the applicant failed to establish that, in the circumstances of the case, a reasonable person in the respondents' position would have taken the precautions postulated by the applicant, namely, by connecting the light sensor that was attached to the pergola, or advising the applicant of the position of the light sensor.

51 For those reasons, while we would grant the applicant leave to appeal in respect of ground 1 of the application, we would dismiss that appeal.

52 The second ground of the application concerns the conclusion by the judge that, if the respondents breached their duty of care to the applicant, his Honour was not satisfied that that breach caused the injury sustained by the applicant. In view of the conclusion, that we have reached concerning ground 1 of the application, it is not necessary for us to express any views concerning ground 2. However, in deference to the arguments that were made in relation to it, we will deal shortly with it.

53 The judge held that he was not satisfied that the applicant had proven causation in accordance with s 51(1)(a) of the Act, because the applicant had not satisfied him that, if the respondents had told him that they had disconnected the sensor light, he would have plugged it in in any event.

54 The judge's conclusion, to that effect, disregarded the evidence given by the applicant that he had looked for an outside source of illumination, but was unable to find one. That evidence was not challenged in cross-examination. While the judge did have the benefit of a view, and his Honour did express some reservations concerning a number of aspects of the applicant's evidence, nevertheless the fact remains that the applicant's evidence, that he did try to locate a source of outside light, was not subject to challenge. In those circumstances, in our view, it was not open to the judge to find that he was not satisfied that, if the respondents had told the applicant that they had disconnected the sensor light, he would have reconnected it.

55 The claim by the applicant was also based on the proposition that the respondents had breached their duty of care by failing to leave the sensor light connected and operating. The uncontested evidence of the applicant was that, at the point at which he fell, the driveway was not illuminated by the lighting from within the loft. The applicant stated that he did not observe the puddle in which he placed his foot, and it is a ready inference that, had he observed it, he would not have placed his foot there, and the ensuing accident would not have occurred.

56 In those circumstances, if, contrary to our above conclusions, the applicant had established error on ground 1, we would have also have upheld ground 2 of the proposed grounds of appeal.

57 For the foregoing reasons, the applicant's application for leave to appeal should be granted, the appeal should be heard instanter, and the appeal dismissed.

[1] Erickson v Bagley [2014] VCC 2126, [28] ('Reasons').

[2] (2007) 234 CLR 330.

[3] Cf Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47-48 (Mason J).

[4] Cf Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330, 351 [60] (Gummow J).

[5] Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330, 351 [60]; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; (2014) 201 LGERA 314, [53] (Sackville AJA); Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151, [7] (Basten JA), [24] (Meagher JA).

[6] See Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112, 120-121 (Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ); Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202, 220-222 (Dixon CJ, McTiernan, Kitto and Taylor JJ); Thompson v Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619, 630; Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd's, London [2011] VSC 589, [284] (J Forrest J).

[7] [2014] NSWCA 156.

[8] Port Macquarie Holdings Council v Mooney [2014] NSWCA 156; (2014) 201 LGERA 314, [67].

[9] Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631, 655 [93]; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 461-3 [126]-[129] (Hayne J), 443 [60]-[61] (Gummow J); Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd's, London [2011] VSC 589, [284] (J Forrest J); Benic v New South Wales [2010] NSWSC 1039, [93] (Garling J).

[10] Shaw v Thomas [2010] NSWCA 169, [44].

[11] Benic v New South Wales [2010] NSWSC 1039, [101] (Garling J); Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd's, London [2011] VSC 589, [285]; Zraika v Walsh [2015] NSWSC 485, [78] (Campbell J).

[13] Ibid [94]-[96]; see also [8] (Gleeson CJ).

[14] [2005] HCA 19; (2005) 221 CLR 234.

[15] Ibid, 246-7 [36]-[37] (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ).

[16] Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631.

[17] [2013] VSCA 12, [27].