Did the primary judge err in finding that the respondent was not in breach of its duty of care to the appellant?
33 As I have already observed, the primary judge seems to have considered that the question of whether the respondent breached its duty of care to the appellant essentially depended upon whether she had taken reasonable care for her own safety. As her Honour found that she had not, it followed that there could be no breach of the respondent's duty of care. In this respect, her Honour appeared to have relied upon the remarks of Sheller JA in Holt to which I have referred but, with respect, has taken them out of context. Furthermore, her Honour's determination that the appellant's inadvertence or inattention in not seeing the rope was not reasonably foreseeable by the respondent also involved her asking herself the wrong question. In fact, with respect, there is a deal of confusion in her Honour's reasoning process which, in my view, has led her into error.
34 I am of that opinion for the following reasons. Firstly, her Honour was required by the Shirt balancing exercise to ask herself whether an occupier of the Park in the position of the respondent would have reasonably foreseen that its conduct in placing a low slung rope of similar colour to the ground over which it was suspended at a location which it knew would be used as an entranceway from the carpark to the playing field involved a material risk of injury to the appellant or to a class of persons including the appellant. To be relevantly foreseeable, that risk of injury may be remote in the sense that it was extremely unlikely to occur provided it was not a far-fetched or fanciful.
35 It was an irrelevant consideration to the question of foreseeability of the risk of harm in the Shirt sense for her Honour to ask whether the appellant's inadvertence in not seeing the rope was itself reasonably foreseeable by the respondent. That inadvertence or inattention may well enter into other aspects of the Shirt balancing exercise but it did not enter into the question of the reasonable foreseeability by the respondent of the risk of harm from the suspension of the rope across the only visible entranceway from the carpark to the playing field.
36 Secondly, her Honour failed to consider the magnitude of the risk of a person in the appellant's position failing to see the rope and tripping over it, and the probability of its occurrence. In the present case, the magnitude of that risk was high in the sense that a person who did not see the rope and tripped over it without anticipating its presence was likely to fall very heavily causing significant injury.
37 As to the degree of probability of its occurrence, that might be regarded as low depending upon whether a person in the position of the appellant knew or was aware that the respondent used a rope suspended between the two vertical posts marking the entranceway for the purpose of preventing the entry of vehicles to the playing area. It was however foreseeable that there would be persons who would be unaware of the existence of the rope who would use the carpark area and then proceed to the playing field.
38 Thirdly, there could be no issue as to the modest expense, difficulty or inconvenience of taking alleviating action to mark the presence of the rope in precisely the same manner as occurred a few days after the accident. Even if that action by the respondent did not amount to an admission of negligence, but was only "an additional precaution", it evidenced how easy it was to bring the existence of the rope to the notice of those approaching it, in a manner which was neither expensive, difficult nor inconvenient.
39 Fourthly, in my opinion, her Honour drew two inferences which were neither properly open to her nor based on factual observation where she had some special advantage. The first was in [19] of her judgment, which I have recorded in [28] above, when she found that it was difficult to accept the appellant's assertion that she did not see the rope as it was visible in the photographs in Exhibit A. For reasons to which I have already referred, in my opinion when one reproduces the circumstances in which the appellant found herself, where the unchallenged evidence was that the vertical posts to which the rope was attached were obstructed by parked vehicles and the rope was low-slung and the same colour as the ground over which it was suspended, no proper basis existed in the photographs to support her Honour's conclusion (at [19]) that it was difficult to accept the appellant's assertion that she was unable to see the rope as she approached it.
40 In this respect, the evidence of Dr Adams was of some significance insofar as he opined, without challenge, that people moving in a normal manner through the environment do not necessarily look closely at the ground immediately in front of their feet, an observation which in any event is a matter of common knowledge and common sense. So much was recently affirmed by Kirby J in Neindorf v Junkovic [2005] HCA 75 where, although in sole dissent, his Honour stated what is in truth the obvious (at [76]) in these terms:
"Most people do not normally walk, even on unfamiliar surfaces, looking constantly at their feet. The fact that there was a division in the slabs of concrete in the appellant's driveway was obvious. But the distinct unevenness in surface levels of the adjoining slabs may not have been obvious to a person, like the respondent, who had no warning of it and no reason to anticipate it."
41 Given the particular circumstances on the day in question, in terms of the obstruction of part of the vehicular entranceway by parked vehicles, I see nothing in the photographs of Exhibit A which would justify the conclusion that the existence of the rope to someone who was otherwise unfamiliar with the area would be obvious unless that person was looking constantly at the ground immediately in front of them.
42 In the present case, there was no reason for the appellant, for the purpose of exercising reasonable care for her own safety, to have been looking at where she was placing her feet or to have anticipated that there would be a rope suspended across the only visible entranceway from the carpark to the playing field which the respondent was clearly inviting her to use to gain access from one to the other.
43 The second inference drawn by the primary judge which had no sufficient basis was that, because the appellant had driven past the vehicular entranceway, common sense dictated that she must have looked into this open space to assess whether she could have parked there and, therefore, must have seen the rope. No questions were put to the appellant which could in any way justify this inference and there was no other evidence to support it.
44 Fifthly, in [20] of her judgment her Honour found that, as the vehicular entranceway was in fact a roadway, the appellant needed to use reasonable care to ensure that she had regard to the safety of herself and her son when "walking along a dirt road intended for vehicles". This statement may be correct insofar as the appellant, not seeing the rope, should have been on the lookout for any other vehicles which were proceeding towards her with a view to using the entranceway. But the finding is, with respect, irrelevant to the issue as to whether the appellant failed to exercise reasonable care for her own safety in not seeing the rope which, according to her Honour, was intended by the respondent (but not to the knowledge of the appellant) to prevent vehicles from using the entranceway.
45 Sixthly, the primary judge also found (in [20]) that it should not have come as a surprise to the appellant that the entranceway was roped off to prevent vehicles from entering the playing field in circumstances where there was a full carpark and there would be members of the public looking for somewhere to park their vehicles. Again, it is to be noted that not one question was directed to the appellant in cross-examination to justify this finding. Although it was submitted by the respondent that this finding was not an unreasonable normative decision on the part of the primary judge, I cannot, with respect, agree. I can see no rational basis why, even though finding a parking space in the carpark may have been difficult, the appellant should have anticipated or expected that the vehicular entranceway would have been roped off to prevent vehicles entering the playing field where that entranceway was as far as the appellant was concerned and to the knowledge of the respondent, the only unobstructed pedestrian access from the carpark to the playing field.
46 Finally, her Honour dismissed the similarity in colour between the rope and the ground over which it was suspended upon the basis that ropes, which are generally brown in colour and which are strung across an entry point, should normally be apparent to anyone exercising reasonable care for his or her own safety. In my opinion, as I have already remarked, the very fact of the presence of the rope, which was both low slung and of similar colour to the ground over which it was suspended and which was neither anticipated nor should have been anticipated by the appellant given that the entranceway appeared to be the only pedestrian access point from the carpark to the playing field, is hardly an adequate basis for a finding that the appellant, exercising reasonable care for her own safety, should have been aware of it.
47 Although her Honour placed much reliance upon the alleged failure of the appellant to exercise reasonable care for her own safety, it is to be remembered that the source of that concept is, as she noted in [11] of her judgment, the joint judgment of Gaudron, McHugh and Gummow JJ in Ghantous where their Honours expressed the concept in the following terms (at 581 [163]):
"As Callinan J points out in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia ) or the surrounding area … In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it 'of a kind calling for some protection or warning'. "
48 In my opinion, it was not obvious in the relevant sense to persons in the appellant's position seeking to access the playing field from the carpark through a space which was partially obstructed by parked vehicles, that there would be a low slung rope suspended across that space of a similar colour to the ground over which it was suspended. In my opinion, the rope constituted a hazard or trap created by the respondent which was not obvious in the sense in which that expression was used in Ghantous and the many cases which have followed and applied it. It was therefore an obstruction of a kind that called for some warning of its presence.
49 The present was not a case of uneven paving stones or holes or the other kinds of hazards which a pedestrian should expect in the course of walking along a public street in an urban area. There was nothing associated with the natural state or condition of the ground upon which the appellant was walking which would constitute an obvious hazard of the nature of those referred to in the pedestrian cases. In the present case, the respondent had erected a rope barrier which, to any person who did not anticipate its presence, clearly constituted a trap for pedestrians who were, in effect, invited by the respondent to use the entranceway as a pedestrian route from the carpark to the playing field.
50 As Ipp JA remarked in Consolidated Broken Hill Limited v Edwards [2005] NSWCA 380 at [53]:
"Obviousness of risk is … merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of duty of care… The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be of such significance and importance to be effectively conclusive."
51 In Timberland Property Holdings Pty Limited v Bundy [2005] NSWCA 419 at [25], Basten JA, with whom Handley JA and Hunt AJA agreed, observed:
"… obviousness depends to a significant extent on the circumstances and the position of the perceiver. That which is obvious from one position or at one time of day or in some circumstances, may not be obvious where those factors change. To determine what is obvious in a particular case, it may be useful to take the specific circumstances of the plaintiff into account and then to inquire whether there was some aspect of her circumstances which was not reasonably foreseeable by the occupier. So long as there was no such unforeseeable circumstance, the question of obviousness must be answered by reference to her particular circumstances."
52 After citing from the judgment of the High Court in Thompson v Woolworths (Qld) Pty Limited (2005) 79 ALJR 904 at 911 [37] that
"[i]f 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,"