New South Wales Court of Appeal CITATION : Dunn v Star City Pty Limited [2004] NSWCA 223 HEARING DATE(S) : 28 June 2004 JUDGMENT DATE : 9 July 2004 JUDGMENT OF : Giles JA at 1; Tobias JA at 2; Bryson JA at 68 DECISION : (a) Appeal allowed; (b) Set aside the verdict, judgment and order made by Naughton DJC on 4 August 2003; (c) In lieu thereof, judgment for the appellant on the issue of liability; (d) Order that the proceedings be remitted to the District Court of New South Wales for the assessment of damages only; (e) Order that the respondent pay the costs of the appellant in the court below and the costs of the appeal and, with respect to the latter, to have a certificate under the Suitors Fund Act 1951 if otherwise qualified CATCHWORDS : TORTS - Negligence - Hidden Danger - Mat in foyer - Obscured - Distractions - Whether mat ought to have been anticipated - Magnitude of risk - Probability of occurrence - TORTS - Contributory negligence - Whether foreseeable - EVIDENCE - Jones v Dunkel inference - Whether explanation warranted - No explanation provided - Witness available LEGISLATION CITED : (No legislation cited) Bardsley v Batemans Bay Bowling Club Limited, NSWCA, 25 November 1996 (unreported) Daily v Spot-On Investments Pty Ltd (1995) Aust Torts Reports 81-363 Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Gorman v Williams (1985) 2 NSWLR 662 Jaenka v Hinton (1995) Aust Torts Reports 81-368 Jones v Dunkel (1959) 101 CLR 298 Joslyn v Berryman (2003) 77 ALJR 1233 CASES CITED : Payne v Parker [1976] 1 NSWLR 191 Phillis v Daly (1988) 15 NSWLR 65 Romeo v Conservation Commission (Northern Territory) (1998) 192 CLR 431 Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 Stannus v Graham (1994) Aust Torts Reports 81-293 Van Der Sluice v Display Craft Pty Limited [2002] NSWCA 204 Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 Wyong Shire Council v Shirt (1981) 146 CLR 41 PARTIES : Janice Dunn Star City Pty Limited FILE NUMBER(S) : CA 40747/03 COUNSEL : A: A Blacket SC/ J Butcher R: G Graham SOLICITORS : A: Marsdens Law Group, Sydney R: Cutler Hughes & Harris Lawyers, Sydney LOWER COURT District Court JURISDICTION : LOWER COURT DC 3711/02 FILE NUMBER(S) : LOWER COURT Naughton DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40747/03 DC 3711/02 GILES JA TOBIAS JA BRYSON JA Friday 9 July 2004 JANICE DUNN v STAR CITY PTY LIMITED Judgment 1 GILES JA: I agree with Tobias JA. 2 TOBIAS JA: For some years the appellant, Ms Janice Dunn, had been living with her friend and companion, Ms Eva Spellacy, on a hobby farm 25km west of Grafton. They decided to visit Sydney. On the evening of 30 June 1999 they had dinner together at a city hotel. They then decided to visit the Star City Casino (the Casino) operated by the respondent. They entered the foyer of the Casino through the main entrance doors off Pyrmont Road and headed left towards the cloakroom. The next thing the appellant knew she had tripped on two mats, which had been left on the granite floor of the foyer in the path of her direction of travel. She fell heavily on her left side and was injured. She sued the respondent in the District Court for damages for negligence. 3 The proceedings were heard by Naughton DCJ who, on 4 August 2003, rejected the appellant's claim and entered judgment for the respondent. The appellant appeals to this Court against that decision. The facts 4 According to the primary judge the appellant, who was aged 55 at the time of the accident, was a large and heavy woman suffering from diabetes, arthritis and other disabilities. Because of her pre-existing physical condition, his Honour found that at the date of the accident the appellant was "peculiarly susceptible to falling over and injuring herself". He further considered that her mobility was somewhat impaired. 5 The appellant and Ms Spellacy arrived at the Casino by taxi at approximately 10.30pm. They entered through the main doors off Pyrmont Road and headed left towards the cloakroom. Exhibit 4 was a video of part of the surveillance tape from one of the Casino's security cameras located in the foyer. It provided the best evidence of what occurred. 6 The video commenced with a view of that part of the foyer where the appellant's accident occurred. However, at that point the appellant had not entered the frame. It depicted a portion of the foyer just inside and to the left of the door through which the appellant entered. Within a few metres of the door was a large vertical sign that appears to be approximately 1m wide and which stands approximately 1.5m-2m high. Immediately behind the sign is a structural column. It would appear that an identical sign is located on the other side of the column. 7 Photographs annexed to a report dated 1 July 2001 of an ergonomic expert, Dr B N Emerson, and tendered on behalf of the appellant assisted the primary judge. According to the report, the photographs were taken on 28 June 2001, some two years after the accident. However, it was not suggested that the relevant part of the foyer had changed in the intervening period. 8 Photograph 1 annexed to the report shows the location of the appellant's fall. It depicts a well-lit foyer consisting of a glossy, smooth, well-buffed granite floor. The granite was of two tones, black and white. These tones were used to create an irregular pattern on the floor. In particular, there were large sections of white granite twisting and curling in the manner of French curves through sections of black granite. Relevant for present purposes is the fact that a section of white granite with black granite on either side commenced at the entrance door through which the appellant accessed the foyer which then curled to the left around the sign and column to which I have referred. 9 The first frames of the video also depict a rectangular black flat object located almost directly opposite the column and between the two fixed signs on either side of it. It appears to be generally parallel to the white section of the granite floor which curls past the column. It was established in the evidence that the object comprised two mats placed one on top of the other (the mats). Approximately one half of the mats were on the black granite nearest the signs and column and the remainder on the white. It is apparent that a person entering the Casino where the white section of granite commenced, and following the curl of that section to the left, would not see the mats, even assuming they were watching the floor, until they were within approximately 1m-2m of them. This was due to the fact that the nearest leading edge was approximately 1m past the point where the white section of granite commenced to curl to the left around the sign and column, thus obscuring their presence. 10 At this point the appellant and Ms Spellacy enter the frame of the video. One can see them following the line of the white section of the granite floor as they move to their left around the sign and column. It is apparent that the appellant does not appear to be moving with any difficulty although it appears that she is looking ahead rather than at her feet. She confirmed this in her oral evidence. Although the foyer was not crowded at this time, there was a steady stream of pedestrian traffic including people walking towards the appellant and Ms Spellacy whom, no doubt, they wished to avoid. According to the evidence of Ms Spellacy, they moved to the left after entering the Casino as she had been informed that that was the direction of the cloakroom where she wished to deposit the bag she was carrying. 11 The video then depicts the appellant's left foot coming into contact with leading edge of the mats located on the white granite portion of the floor. She fell forward onto her left side. At least one casino employee, who was recognisable by his uniform and the fact that he wore what appeared to be a nametag, immediately went to her aid. He assisted the appellant to her feet and is depicted in the video speaking into his 2-way radio. Shortly thereafter a gentleman in an aqua-coloured blazer (with nametag) arrived. The appellant described him as a "medic". He was, no doubt, a paramedic employed by, or under the direction of, the respondent. 12 In the meantime, and before the arrival of the paramedic, the Casino employee who had been assisting the appellant moved to the mats, picked them up and removed them. However, before he did so, and whilst the appellant was still on the floor of the foyer, a young man holding the hand of his female companion moved towards and through the gap between the column and where the appellant was lying and, in so doing, also tripped on the leading edges of the mats. He stumbled but was able to recover his balance and, fortunately, did not fall. 13 It was accepted by the parties as a consequence of the findings in Dr Emerson's report that the purpose of the mats was to provide the Casino security staff with a comfortable surface upon which to stand during foyer surveillance duties given the hard and unforgiving nature of its granite floor. Each mat was 7mm-8mm thick, 915mm long and 455mm wide. Each weighed 4kg. The surface of the mat consisted of dimpled rubber and its edges were straight and not feathered. They obviously sat flat on the surface of the granite floor. 14 An issue before the primary judge was whether the appellant tripped on one or both mats. The evidence established, and his Honour found, that there were two mats, one placed on top of the other. However, he also found that they were not sitting squarely on each other; rather, the bottom mat protruded from beneath the top mat so that the two leading edges were off-set. The primary judge then found that the appellant tripped when her foot came into contact with the straight leading edge of what must have been the bottom mat. He described the mats in the following terms (page 5): "One of them was overlayed on top of the other one but was set back from the leading edge of the underneath one. Therefore, as the plaintiff approached them the leading edges, i.e. the edges closest to her, presented two separate edges, not a single combined one. I find that the plaintiff tripped against the leading edge of one of the mats and not against both of them, as wrongly assumed by … Dr Emerson. The plaintiff subsequently told many doctors that she had tripped against 'a' mat (not two mats) and I have accepted that that was so." The primary judge's reasoning 15 The primary judge made the following further findings relevant to his decision: (a) The mats were clearly visible to anyone keeping a reasonable lookout for his or her own safety: this was so because the foyer was well-lit and the mats, apart from a small corner of the lower mat, were wholly on that part of the floor which was white. (b) The appellant tripped on the leading edge of one mat, away from the corner, which was located on that part of the floor which was white. (c) The appellant accepted that she did not see the mats before she tripped and fell: she conceded in cross-examination that she should have been keeping a lookout as to where she was walking but, in her own words, she " just didn't' ". (d) The fact that the mats were taken away shortly after the incident was not " legally significant " but was " possibly a sympathetic reaction to an unfortunate accident rather than admissions by the defendant of negligence ". (e) The fact that, according to the video, shortly after the appellant fell another man tripped against one of the mats, but did not fall, did not assist the appellant's case. Instead, it merely emphasised "that the plaintiff was peculiarly susceptible to falling over and hurting herself having regard to her excessive weight and pre-existing osteoarthritic knees and ankles." (f) There was no evidence of any other accident at the Casino by which I assume his Honour intended to say that there was no evidence of other people tripping on these mats in the Casino foyer. (g) There was no evidence as to how long the mats had been at their location, who put them there or even who owned them. However, his Honour accepted that their purpose was to afford foot and/or leg relief for standing security staff in the entrance foyer of the Casino as the granite floor was very hard and lacking in "spring" or "give". (h) There was no evidence as to the security staffing arrangements including whether they were employees of the respondent or whether they were independent contractors. 16 The respondent called no evidence with respect to (g) and (h) above. The appellant therefore relied upon the principle of Jones v Dunkel (1959) 101 CLR 298. The primary judge's response was that that principle could not be used to fill a gap in the appellant's case so as to relieve her of the prime burden of proof. His Honour then said this (page 9): "In any event, this has nothing to do with what I see as the main problem in the plaintiff's case. That is that the plaintiff, as I have found, failed to keep a reasonable lookout for her own safety and that if she had kept a proper lookout she would not have had the accident." 17 Dr Emerson in his report stated, and his Honour accepted, that the mats had a useful and legitimate purpose. However, Dr Emerson was of the view that the location of the mats where the appellant fell was inappropriate. His Honour quoted the following passage from the report: "The underfoot surface in the main section of the casino is laid with a hard ornamental granite surface, as this surface is extremely hard, rubber or soft matting is necessary for the under foot comfort of security staff at the walkway approach to the main door. I agree with this provision, with the obvious proviso that any mat used for this purpose must be located correctly and when not in use it must be stored in a proper location and not improperly located, as it was at the time of the plaintiff's injury, in the direct pathway of oncoming pedestrians." 18 The primary judge rejected Dr Emerson's proviso as set forth in the last sentence of the above cited paragraph of his report. His Honour said (page 10): "I have not been persuaded that the mats were not 'located correctly'. They were close to a construction column, inside and to the left of the main doors near those doors for persons entering the foyer." 19 The primary judge then accepted that the respondent, as occupier of the Casino, owed to entrants to it, including the appellant, a duty to take reasonable care to avoid foreseeable risk of injury. He further accepted that there was a foreseeable risk that an entrant to the Casino foyer would suffer injury by tripping against one of the mats and falling over. The issue in the case was whether the respondent had breached its duty of care. He said: "It must be asked what, if anything, the defendant was obliged to do in fulfilling its duty to take reasonable care to avoid the risk of injury." 20 His Honour then quoted the well-known passage from the judgment of Mason J in Wyong Shire Council v Shirt (1981) 146 CLR 41 at 48 emphasising the following part of that passage: "The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence…" 21 His Honour then said this (page 11-12): "The assessment of what, if anything, the reasonable man in the position of the defendant would do by way of response to the subject risk calls for an investigation of what, if anything, was reasonable having regard to the knowledge, or lack of it, of entrants generally to the casino foyer which the defendant was entitled to expect." 22 He then held that an occupier was entitled to assume that most entrants take reasonable care for their own safety, citing Phillis v Daly (1988) 15 NSWLR 65 at 68 E-F per Samuels JA and at 74G-75C per Mahoney JA and Romeo v Conservation Commission (Northern Territory) (1998) 192 CLR 431. As to the former, his Honour said (at page 13) that it was held in that case "that no liability will fall on an occupier of premises for injuries received by a lawful entrant whilst on those premises where the magnitude of the risk of injury is so slight as to require no precaution omitted by the occupier or where the risk was both ordinary and obvious and was unreasonably ignored by the entrant. In my opinion that is applicable in the present case." Of course, the facts in Phillis v Daly that informed that decision were, I would suggest, far removed from those in the present case. The same comment applies with respect to the well-known example given by Mahoney JA in the same case (at 74B-C) as to the obviousness of the danger of persons who slip and fall and hit their head on a desk or a table situated in a room. 23 The primary judge also relied upon the decision of this Court in Bardsley v Batemans Bay Bowling Club Limited, 25 November 1996 (unreported), a case involving a patron at the premises of the club who, when attempting to pass through a group of people tripped over the legs of another patron who was kneeling on the floor. Mahoney P observed that in the case of a club, which attracts people in numbers, it is foreseeable that where such persons have to squeeze through a crowd they may not look to see or be able to see what is on the floor and so may trip. A chair or table leg might be out of alignment; a person's foot or leg may be stretched out momentarily or for a brief time. However, it was held that it would be unreasonable to require the club in such circumstances to ensure that every chair and table leg was always in alignment and to supervise its patrons so that none of them put a foot or leg out of line even for a moment or two. The President said this: "In my respectful opinion, it cannot be the law that a club holding such a function is in breach of its duty to the persons in the club if it does not remove every such risk of one of them tripping over another in this way. As I suggested in Phillis v Daly , there are risks which are readily foreseeable which the law of negligence does not require to be removed. There are, for example, risks which are part of the ordinary course of living which, notwithstanding the terms in which the law of negligence is conventionally stated, that law does not require a defendant to remove" (emphasis supplied) 24 Again, in the same case, Waddell A-JA, with whom Cole JA agreed, observed: "While the room was unusually crowded, the evidence goes no further than that there was no way across the room which was 'totally clear'. The evidence supports a conclusion that the respondent was not negligent in failing to provide a way across the room which was totally clear of obvious obstacles." 25 I mention Bardsley in particular because the respondent relied heavily upon it submitting that the risk confronting the appellant of tripping over the mats was "part of the ordinary course of living" in that the existence of mats within the entrances to buildings, both residential and commercial, was an everyday occurrence which entrants to the building, exercising reasonable care for their own safety, should expect or anticipate. 26 Thus the primary judge observed that "The law of negligence is not intended to compensate people against their own careless disregard for the normal risks of every day living. If it was, then liability and negligence would be absolute not relative." 27 This observation of his Honour was prompted by his citation from the judgment of Handley JA in Stannus v Graham (1994) Aust Torts Reports 81-293 at 61, 566 where his Honour said that: "persons using steps may misjudge their footing and slip or trip but this is an every day risk which members of the public avoid by taking care for their own safety." The primary judge considered that the same "can be said about mats on floors in the foyers of large commercial and/or recreational premises. The otherwise injury-free record of the casino foyer supports this proposition." 28 It is pertinent to observe, as Handley JA pointed out in Stannus at 61,564, that the steps in question in that case was a flight of four which was neither steep nor narrow and appeared to be perfectly normal, common place steps such as might be seen in many suburban homes in Australia. 29 The primary judge's conclusion was expressed in the following passage (page 17): "In the present case it seems to me that the degree of probability of an accident such as occurred was low, and the magnitude of the risk slight. That is because of the obviousness of the mats and the entitlement of the defendant to assume that persons entering the casino foyer would keep a reasonable lookout for their own safety. Mats on floors in entrance areas are a common occurrence and most people watch where they are walking." The contentions of the parties 30 The appellant's submissions can be distilled into the following propositions: (a) His Honour erred with respect to his finding that although there were two mats, one on top of each other, the leading edge of the top mat was set off from that of the bottom mat and it was upon the latter that the appellant tripped; further, he erred in finding that the mats were largely upon the white granite of the floor surface and were, therefore, obvious to anyone who was looking where they were walking. (b) There was no evidence to support his Honour's finding that the Casino foyer had an " otherwise injury-free record " or that mats in entrance areas were a " common occurrence " in large commercial and/or recreational premises. (c) There was no evidence that the appellant was, at the time of her accident, unstable when she walked and was, therefore, " peculiarly susceptible to falling over and injuring herself "; his Honour erred in finding that she appellant failed to take reasonable care for her own safety, that the magnitude of the risk of injury was slight and that the probability of a person tripping over the mats was low due to the obviousness of the mats and the entitlement of the respondent to assume that persons entering the Casino foyer would keep a reasonable lookout for their own safety. (d) His Honour misstated the law insofar as he suggested that a defendant will succeed if he can establish that the injury could have been avoided by the plaintiff taking care for his or her own safety.; (e) His Honour erred in failing to apply the principle in Jones v Dunkel and otherwise failed to provide adequate reasons for his rejection of the application of that principle to the facts of the case (f) His Honour erred in rejecting the evidence of Dr Emerson and in criticising the manner in which he had presented his report. 31 The respondent's submissions can be summarised thus: (a) As it was not contested that the mats had a useful and legitimate purpose, there was simply no need for the respondent to call any evidence as to that purpose or as to where and why they were located in the position in the foyer where the appellant tripped over them. (b) There was no basis for the appellant's assertion that the mats were located at the last place one would expect to find them, the assertion not being based on any evidence. (c) The fact that there was no evidence that these mats had been tripped over by other patrons was indicative of, and supported his Honour's finding, that the mats upon which the appellant tripped were not inappropriately located. (d) It was impossible for the appellant to assert that the mats constituted a danger and should have been removed when not in use given that it was commonplace for mats to be upon floors and their existence in entrance areas of buildings was an everyday incident of day to day life. (e) The finding by his Honour that the appellant was not looking where she was going was conceded by her and, given her mobility and stability difficulties, it became more necessary for her to take care for her own safety by watching where she walking; (f) The present case was, by analogy, on all fours with the example given by Mahoney JA in Phillis v Daly at 74B-C: the appellant's submission being, in effect, that the absurdity expressed by the example was that all tables in rooms should have rounded corners and rubber edges and that when not in use they should be folded up and put away in a cupboard. Did the primary judge err? 32 In my opinion, there are two critical issues for determination. The first is whether the primary judge was correct when he found that although there were two mats, one overlaid on the other, the top mat was set back from the leading edge of the lower mat and that the appellant tripped on the leading edge of the latter. I say this is critical because if the leading edge of the top mat were not set off from the leading edge of the bottom mat, the mats would have presented the appellant with a leading edge of approximately 15mm in thickness and with a total weight of 8kg. This was the assumption made by Dr Emerson, which his Honour criticised as being other than in accordance with the facts. This evidence is important because if his Honour was wrong and the combined leading edge of the mats upon which the appellant tripped had a total thickness of 15mm, then Dr Emerson's uncontradicted evidence was as follows: "The Plaintiff upon walking through the entrance doorway tripped on these mats, which were raised 15mm above the floor, well in excess of the 6mm above the flat walkway surface generally regarded as sufficient to promote a trip. Since the height of the rubber mats is in excess of the generally accepted value of 6mm with a maximum variation permitted on a walkway surface, it is hazardous to pedestrians to have such a walkway surface." 33 The second critical issue is whether the primary judge was correct in finding that the existence of the mats in the location in question was obvious to the appellant in that firstly, they were clearly visible to her and, secondly, she should have expected or anticipated their presence as mats on floors in the foyers of large commercial and/or recreational premises were a common occurrence and, therefore, constituted one of the normal risks of everyday living. It would appear that in the context of the application of the Shirt calculus, those findings led his Honour to the conclusion that the probability of the risk of tripping on the mats occurring was low and that the magnitude of the risk was slight. The first issue 34 The basis upon which the primary judge found that the leading edge of the top mat was set back from the leading edge of the lower mat was because the appellant had told some of her doctors that she had tripped against "a" mat (not two mats). 35 In support of the primary judge's reasoning on this issue, the respondent referred to two medical reports. The first was a report of Dr John Ashwell of 11 August 1999, which was some six weeks after the accident, in which he recorded the relevant part of the history told to him by the appellant in these terms: "She apparently tripped on a mat edge and fell directly onto her left side." It was conceded that the appellant was not cross-examined on this statement of Dr Ashwell. 36 The second was a statement in the report of Dr J Barnett of 24 August 1999 in which he recorded, relevantly, the following history: "She tells me as she walked into the Casino there were two mats on the floor and she tripped on one of those and fell largely on her left side." 37 In chief the appellant said that when she was on the floor, after she had fallen, she saw two mats on top of each other. She was cross-examined as to the statement attributed to her in the report of Dr Barnett, which I have recorded above. After it was read to her, the following exchange took place: "Q. Now thinking back, do you firstly recall that that's what you did tell Mr Barnett? A. That's what I thought I said. I thought I fell over on the mat, that's what I said. Q. One of the mats, not two of the mats? A. The mats are on top – it must have been the top one I caught as I come down. They were definitely on top of each other. Q. But your recollection is you told Dr Barnett that there were two of them there but you tripped on one of them? A. Well, there's two together. I thought after I'd come to my senses I must have tripped and took the first one with the fall." 38 The appellant was not cross-examined to suggest that she tripped on the bottom mat rather than the top mat; nor was she asked whether, when she first saw them after she had fallen, the top mat was off-set from the bottom mat. This notwithstanding, it is correct that in the reports of Dr J Novotny of 18 November 1999, Dr J Taylor of 11 February 2000, Dr R Wallace of 7 August 2001 and Mr A Weatherstone of 18 November 1999, the recorded history states that she "tripped over a mat". On the other hand, in a report of Dr P Isbister of 17 January 2000, he records that she "tripped on a square mat which had been placed upon another mat". However, she was not cross-examined on any of the foregoing reports. 39 In my opinion, the only reliable evidence of the positioning of the two mats on top of each other is the video. I have carefully considered the picture that it gives of the mats and, in particular, of their being picked up by a Casino employee and removed. In my opinion, the video is entirely consistent with the evidence of the appellant which I have recorded in [37] above that to all intents and purposes the two mats were on top of each other and that the leading edge of the top mat was not, as the primary judge found, set back from the leading edge of the lower mat. Although there may have been a slightly angled offset, the pictorial evidence contained in the video satisfies me that the leading edge of the mats upon which the appellant tripped presented her with the vertical thickness of the two mats, namely, some 15mm. The appellant said that she must have tripped on the top mat and I see nothing that would have justified the primary judge in rejecting that evidence. At no point in his judgment did his Honour criticise the appellant's evidence or suggest that she was exaggerating or not doing her best to tell the truth. If she did trip on the top mat then it would follow that in all probability she would not have tripped if there had only been a single mat. 40 In my opinion the primary judge's finding that the appellant tripped only on the bottom mat was both flimsy and unreliable when compared to a careful viewing of the video. It follows that in my view his Honour erred and that he should have found that the leading edge of the mats had a combined thickness of 15mm and that it was on that edge that the appellant tripped. Alternatively, he should have found that she tripped because there were two mats rather than one. The second issue 41 Critical to the second issue is the primary judge's findings firstly, that the appellant failed to keep a reasonable lookout for her own safety; secondly, that because most of the mats were on the white granite floor, their visibility was obvious; thirdly, that mats on floors in a foyer such as that of the Casino was a common occurrence; and fourthly, that as a consequence the appellant was the author of her own misfortune in that she carelessly disregarded the existence of the mats, the presence of which constituted a normal risk of everyday living. 42 In my opinion, the primary judge erred in respect of each of the above findings. His finding that the appellant failed to keep a reasonable lookout for her own safety was founded upon her agreement that it was "advisable to keep a lookout where you are walking" and her concession that she "just didn't". 43 In my opinion, the evidence upon which that finding was based was taken by his Honour out of context. The particular evidence upon which the primary judge relied was contained in the following exchange: "Q. The simple fact is you weren't looking in any respect where you were walking, were you? A. I wasn't looking at the floor. I was looking at the top of the staircase, the waterfall and all the environment of where I was going into. Q. We all look around as we walk but it's advisable, you know, to always just keep a quick eye on where you're walking? A. I suppose that's right but I just didn't. I was looking ahead of me. That's all I can tell you." 44 Further, in chief the appellant when asked where she was looking after she entered the foyer, said that she "was looking at all around me, looking to where I could go and the elevator and the vaudeville, I was just looking like a normal person would be looking". In cross-examination, as appears from the exchange that I have recorded in [43] above, she said she was looking at the top of the staircase, the waterfall and the environment that she was entering. In this respect, it was common ground that the foyer, understandably, was a brightly lit, glossy, bustling entry point to the Casino. It had stairs, escalators and a waterfall on the other side of the foyer to that where the appellant tripped. The photographs in evidence also revealed displays of new motor vehicles and the like which, apparently, could be won by fortunate entrants. 45 It is self-evident that if the appellant had been looking at the floor immediately in front of her as she was walking, she would have seen the mats and would have avoided her injuries. But that is not to the point. Whether or not she was taking reasonable care for her own safety depends on the nature of the place where she happened to be. There is a mile of difference between the present case of members of the public entering the Casino foyer and encountering a smooth, well-buffed granite floor and entering other locations such as a room where the entrant would expect to find furniture around which he or she would be required to manoeuvre; a crowded club bar with patrons sitting at tables close together through the legs of which one might be required to manoeuvre; a shop where there are chairs at the counter or vertical display stands or racks as one would expect (Daily v Spot-On Investments Pty Ltd (1995) Aust Torts Reports 81-363 esp. at 62,709); crossing the front lawn of a suburban house on which there has been left an unwound hose where the entrant was in the habit of encountering such obstacles (Jaenka v Hinton (1995) Aust Torts Reports 81-368); and negotiating a council footpath in which the ordinary adult person would expect to find imperfections and variations. 46 In an environment such as the Casino foyer, an entrant might well expect, and thereby be required to keep a lookout for, rubbish containers notices and other forms of advertising. But by no stretch of the imagination could they be expected to anticipate one, let alone two, mats of the nature of those the subject of this litigation located in what was clearly an area of significant pedestrian movement and which were in the direct pathway of patrons moving from one part of the foyer to another. 47 Although it is accepted doctrine since the judgment of Gaudron, McHugh and Gummow JJ in Ghantous v Hawkesbury City Council (2001) 206 CLR 512 at 581 [163] that "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" 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. Was the appellant guilty of contributory negligence? 61 The primary judge did not need to deal with this issue given his finding in favour of the respondent on the issue of breach. This Court is therefore required to deal with the issue afresh. 62 In its defence the respondent pleaded contributory negligence on the part of the appellant and gave the following particulars: (a) failure to watch where she was walking; (b) failure to observe the mats on the floor; (c) failure to wear appropriate footwear. The last particular was not pressed. 63 Normally, contributory negligence is defined as a failure on the part of a plaintiff to take reasonable care for his or her own safety which, if taken, would have avoided the accident. Recently, it was more accurately stated by McHugh J in Joslyn v Berryman (2003) 77 ALJR 1233 at 1236 [16] in these terms: "In common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed." 64 The question in the present case, therefore, is whether the appellant by her conduct in failing to watch where she was walking exposed herself to a risk of injury that might reasonably have been foreseen by her and avoided. In my opinion, the question so posed should be answered in the negative. 65 I have already held that the primary judge erred in finding that the appellant failed to take reasonable care for her own safety by not watching the floor where she was walking. It was submitted by the respondent that in view of the appellant's disabilities and, in particular, in the light of the primary judge's finding that the appellant was "peculiarly susceptible to falling over and hurting herself", she ought to have taken particular care to ensure that the path in front of her was free of obstructions. With respect, I do not agree. There was no reason for her to suspect that the type of surface upon which she was walking, within an area the subject of significant pedestrian movement, would be obstructed by mats in the location where she tripped. I would therefore reject the respondent's contention that the appellant was guilty of contributory negligence. Other matters 66 It will be appreciated that the appellant raised a number of other alleged errors on the part of the primary judge that have not been dealt with. Given the conclusion to which I have come, it is unnecessary to do so. I have said sufficient, I hope, to demonstrate that his Honour erred in finding that the respondent had not breached its duty of care to the appellant. 67 I would therefore propose the following orders: (a) Appeal allowed. (b) Set aside the verdict, judgment and order made by Naughton DJC on 4 August 2003. (c) In lieu thereof, judgment for the appellant on the issue of liability. (d) Order that the proceedings be remitted to the District Court of New South Wales for the assessment of damages only. (e) Order that the respondent pay the costs of the appellant in the court below and the costs of the appeal and, with respect to the latter, to have a certificate under the Suitors Fund Act 1951 if otherwise qualified. 68 BRYSON JA: I agree with Tobias JA. ********** Last Modified: 07/16/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.