Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sibraa v Brown [2012] NSWCA 328 Hearing dates: 17 September 2012 Decision date: 12 October 2012 Before: Campbell JA at [1] Hoeben JA at [77] Tobias AJA at [78] Decision: (1) Appeal allowed. (2) Set aside the verdict for the Respondent in the court below. (3) In lieu thereof, order that the proceedings below be dismissed with costs. (4) Respondent to pay the costs of the Appellant of the appeal. (5) Respondent to have a certificate under the Suitors Fund Act 1951. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - occupier's liability - negligence - where plaintiff tripped in the darkness on a piece of wire mesh situated on the front lawn of defendant - whether risk of injury foreseeable - whether duty of care breached - usual case that lawns have upon them various objects and obstacles - ordinary homeowner would not be expected to remove or illuminate all potential obstacles to free progress on his or her lawn - s 5B(1)(c) Civil Liability Act not satisfied - defendant not negligent Legislation Cited: Civil Liability Act 2002 Suitors Fund Act 1951 Wrongs Act 1936 (SA) Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Halliday v Neville (1984) 155 CLR 1 Jaenke v Hinton [1995] QCA 484; Aust Torts Reports ¶81-368 Laresu Pty Ltd v Clark [2010] NSWCA 180 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631 Phillis v Daly (1988) 15 NSWLR 65 Shaw v Thomas [2010] NSWCA 169 Waverley Council v Ferreira [2005] NSWCA 418; [2005] Aust Torts Reports ¶81-818 Woolworths Limited v Strong [2010] NSWCA 282 Category: Principal judgment Parties: Noel Sibraa (Appellant) Dorothy Brown (Respondent) Representation: Counsel: J Sexton SC; D Priestley (Appellant) I D Roberts SC; K Oldfield (Respondent) Solicitors: Riley, Gray-Spencer Lawyers (Appellant) Riordan Legal Pty Ltd (Respondent) File Number(s): 2011/330143 Decision under appeal Date of Decision: 2011-06-08 00:00:00 Before: Neilson DCJ File Number(s): 2010/11608 Judgment 1CAMPBELL JA: Nature of the Case 2The Appellant and the Respondent were next-door neighbours. The Respondent injured herself on 8 May 2007 when, in the dark and barefooted, she tripped over some welded wire mesh that was lying on the front lawn of the Appellant's house. Following a trial in the District Court at Albury, his Honour Judge Neilson held that the Respondent's injuries arose from the negligence of the Appellant. He awarded damages. 3The Appellant appeals against the finding of negligence. Appeals against two elements of the judge's assessment of quantum, and against the judge's assessment of contributory negligence, were abandoned at the hearing of the appeal. 4Mr J Sexton SC and Mr D Priestley appeared for the Appellant. Mr RD Roberts SC and Ms K Oldfield appeared for the Respondent. Facts 5The Appellant and the Respondent lived in Finley, near Albury in New South Wales. At the time of the accident, the Respondent was a widow aged sixty who lived alone. In the street in which they lived the Appellant's house was number 11, and the Respondent's house was number 13. By 2007, they had been neighbours for many years. 6The Appellant was the father of three children. In December 2006 the Appellant's partner left him, and went to live in Deniliquin. The three children went with her. In the early part of 2007, two of the children, Joel (then aged fourteen) and Shaylee (then aged thirteen) moved back to the Appellant's premises. About that time, a great niece of the Appellant, Brooke (then aged fourteen), also began to live in his premises. Brooke was the granddaughter of the Appellant's sister, Ms Norma Gowan. By April 2007, another of the Appellant's sons would stay at the house on Friday nights. 7The Appellant at that time worked for the RTA based in Narrandera, but working in West Wyalong. In the early part of 2007 it was his practice to leave Finley early on a Monday morning and return on the following Saturday afternoon. This meant that the children, including Brooke and Shaylee, were living alone in the premises during the week. After the children had moved back to live in the Appellant's house, Ms Gowan asked the Respondent if she could "keep an eye open for the children to make sure 'that there was nobody hanging around at night when they were there by themselves". The Respondent agreed to do this. 8In late March or early April 2007, two police officers came to the house in the evening. Ms Gowan also came there, and asked the Respondent to attend. Thereafter, the level of supervision that the Respondent gave to the children increased. She slept at the Respondent's house from either the Sunday or the Monday night until the Appellant returned on the succeeding Saturday. While she was there she carried out some domestic tasks, and supervised the children in their carrying out of other domestic tasks. On those occasions when she was sleeping at her own home on the Sunday evening, the Respondent would knock on her bedroom window around 4.30am as he was going to work, so that the Respondent could go to his house to commence the supervision of the children. 9On Saturday 5 May 2007, Shaylee told the Respondent, after they had had some differences of opinion, that they, meaning the children, did not wish the Respondent to come back to stay in their house. 10On the following Monday, the Respondent did not receive any knock at her bedroom window, and did not go next door. 11On Tuesday 8 May 2007, the Respondent heard Shaylee crying. She could not attract Shaylee's attention from her own yard, so went next door. 12At the entrance to the Appellant's house is both a glass door, and a security door. When the Appellant went to work each week it was his practice to lock the security door, and take the key with him. Thus, the only way of entering the Appellant's house was through the back door. When the Respondent heard Shaylee crying, she went to the back door of the Appellant's house and spoke to her. Shaylee said that Brooke was going to run away from home and was hiding from her mother. Shaylee asked the Respondent to go with her to pick Brooke up. 13The Respondent and Shaylee drove away in the Respondent's car, located Brooke, and brought her back to the Appellant's house. The judge found that during the trip back, "... there was a conversation between the plaintiff, Shaylee and Brooke about the two young teenage girls' running away. They proposed hitchhiking to Deniliquin. The plaintiff advised them not to do so because that was a very dangerous thing to do for two young teenage girls. The girls, when they arrived at number 13, told the plaintiff that they would let her know later what they intended to do. They suggested to the plaintiff that she went into her house and watched the 'soaps', of which she was a fond audience member, and that after that they would let the plaintiff know what their intention was. The plaintiff went into her home at number 13 from her car and Shaylee and Brooke went next door to number 11. At the end of watching 'Home and Away', at 7.30pm, the plaintiff went to number 11 and it is on that visit that she fell and sustained personal injury." 14The Appellant's house is a single storey bungalow. The fence at the front of the property has a gate in its centre, from which a path leads to the front door. Another path runs parallel to the front of the house. It goes from the path that leads from the gate to the front door towards the right hand side of the dwelling as one looks at it from the street. That path is cluttered by pot plants, a water feature, and various other objects. A palm tree is immediately adjacent to it. Another path then leads down the right hand side of the house. The house has no driveway, and the path down the right hand side of the house provides the only means of gaining access both to the backyard and the backdoor. As the judge found, "... if one entered the house through the front gate and wanted to go to the back of the house, it would be the quickest route to cut across the lawn, to take the hypotenuse of the right-angle triangle formed by the pathway to the front door, the path from the front door to the side passage and the shortcut." 15The Appellant kept his lawn extremely well, and his garden well tended. The judge observed that, "one could almost think that the defendant kept his lawns somewhat in the fashion of a greenkeeper towards a bowling green". 16On the day of the accident, a piece of wire mesh lay on the ground in the front yard of the Appellant's house. It lay quite close to the beginning of the path that leads down the right hand side of the house. The judge found that the mesh in question: "... appears to be concrete reinforcing mesh. It is certainly made of iron or steel and appears to be much thicker and much more durable than, for example, chicken wire." 17There was no explicit finding about the size of the mesh. The Respondent gave evidence that a piece of mesh depicted in a photograph of the Appellant's front lawn appeared to be the same size as the wire mesh she saw on 8 May. Mr Sexton submits that the piece of mesh was 1m x 0.5m. Mr Roberts did not dispute that estimate. Examination of the photograph does not provide any ground for believing it is wrong. I will proceed on the basis that, at least approximately, that submission is correct. 18The Respondent had previously seen either that mesh or a similar mesh on other parts of the Appellant's lawn, or on his nature strip. When she entered number 11 on the afternoon of 8 May to talk to Shaylee, she saw the mesh on the lawn in the location in which it was when she tripped over it that evening. She also noticed it when she and Shaylee left to return to number 13 in order to get into the Respondent's car to go to look for Brooke. She noticed grass seed lying underneath the mesh. 19The judge inferred that: "... the defendant had laid grass seed in the area underneath the mesh in order to try to get the grass to grow back, which had been eroded away by people using the shortcut." 20By 7.30pm on the day of the accident it was dark. At the time, there was an exterior light, described as a brass carriage lamp, by the side of the front door. It was turned off when the Respondent entered the property. She went to the front door, intending to talk to the girls. She knocked at the front door. The girls opened the front door, and turned on the outside light. The judge found: "The plaintiff did not tell me of any conversation but, if a conversation started, it was soon interrupted. Lights were seen either by the girls or by both the girls and the plaintiff. Those lights were of a car entering [name] Street. One of the girls or both of them said, 'Quick, quick, that could be Paula,' told the plaintiff to go around to the back of the house, shut the front door and turned off the light. Paula is, of course, Brooke's mother. Brooke had run away from home. No doubt the girls perceived that Brooke's mother was on the lookout for her daughter and it would appear that the girls wished to 'lay low' from her mother: hence the need to shut the door, to turn off the light, to pretend that, for example, no-one was home or that there was nothing untoward going on at number 11." 21The judge's finding about the mechanism of the Respondent's injury was that, after the girls had told the Respondent to go around to the back of the house, and had shut the door and turned off the light, the Respondent: "... did not use the concrete pathway but walked around on the lawn and, when she did so, she had forgotten that the steel mesh was on the lawn. She placed her right foot on the mesh and realised it was there. She could feel the mesh with her bare right foot. However, before she could do anything further, she started to fall. She told me that her left foot was caught on the mesh and that caused her to fall. She told me that she felt that her toes were caught in the mesh. As she was falling forward, the plaintiff put her hands out in front of her to try to stop the extent of her fall, to try to brace herself from the fall. However, her left shoulder struck the downpipe ... near the right hand edge of the front of the defendant's residence." 22The judge gave consideration to whether the medical evidence about some abrasions or scratches to the Respondent's feet cast any more light on the cause of the accident, but found they did not: "I do not know whether they were on the sole of a foot or the sole of each foot or whether they were on the dorsa of the feet or the dorsum of one of the feet, nor do I know if they were to the area of the foot between the metatarsal tarsal joints and the ankle or whether they were over the toes themselves. However, one would have thought that if the injury were only to a toe, the registered nurse who made the notes would have indicated the toe in question. The only finding I can positively make is that in some fashion the plaintiff's left foot, which was the trailing foot at the time, became caught on the mesh causing her to fall forward. Whether that was caused by her toes going between gaps in the mesh or by her left foot going under the mesh is extremely difficult to say. If one, for example, knew that there was a scratch or abrasion on the dorsum of her left foot, that would clearly indicate that her left foot went underneath the mesh. 23The judge also found: "... that the plaintiff was distracted by what occurred at the front door at 7.30pm on 8 May 2007. She had not put her shoes on and one therefore would infer it was only to be a short visit. She did not go around to the back as she normally did but knocked at the front door merely to speak to the girls through the front door and did not seek to enter the house. The girls and the plaintiff herself were then distracted by the lights of a car turning into [name] Street. The girls sought to lay low. They shut the door, turned out the light and told the plaintiff to go around to the back. She complied with their request, forgetting that the mesh was there. She herself told me that as she was heading towards the side passage, which would have been on her right as she traversed the lawn, she was looking to her left to look at the lights of the vehicle turning into [name] Street. She was distracted by what was occurring and failed to realise that the trap or danger was there." (The side passage was, in fact, on the plaintiff's left, and she was looking to her right, but nothing turns on this minor slip.) 24The plaintiff's evidence in chief about the mechanism of the fall was: "Q. As you cut across, did you feel something? A. I felt the wire under my right foot and the next thing I knew, I was falling. Q. Having felt the wire under your right foot, what, if anything, did you notice about your left foot? A. It was caught. Q. What was it caught on? A. The mesh. HIS HONOUR Q. You told me you didn't have shoes on-- A. Yes. Q. --did you have any socks on? A. No. Q. So you were barefooted? A. Yes. Q. When you said your foot was caught, what did you feel? Did you feel something underneath the sole of your foot or between your toes-- A. No, I felt-- Q. --or what did you feel? A. The - I felt the scratch, I felt the mesh between my toes. Q. This is of your left foot? A. Yes. Q. When you said your left foot was caught, you see, it had to catch some part of your foot. What part-- A. My toes. Q. --was it the sole, the top? A. My toes." 25That evidence was elaborated somewhat in cross-examination but not altered in substance: "Q. You stepped on it firstly with which foot? A. With my right foot. Q. Which foot do you say caught up? A. My left foot. Q. So when you placed your right foot on the mesh, you remembered that it was there then, is that right? A. Yes. Q. But you kept walking, correct? A. I was already in the process of falling. Q. And your toes caught up in it, is that right? A. I believe that's what happened because my feet were both scratched. ... Q. As you were walking in that area, were you looking down where you were walking or not? A. No, I was looking to see where the car was. Q. Could you even see the ground beneath your feet or was it too dark? A. It was too dark. ... Q. ... You're walking towards the path that goes down the side of the house, is that right? A. Walking across. Q. Right but you - if you - you're walking as if you're wanting to go to your left but you're looking as if you - to the right, is that right? A. I looked around to see where the car was. Q. So you looked to your right? A. Yes. Q. When you were intending to go left. A. Yes. Q. Were you looking for a car when you had your fall? A. No, I'd looked back around. Q. You don't seem too sure about it. A. I looked - as - I glanced around to see where the car was and then I looked back to go around the corner. Q. As you were walking in that area Ms Brown, you knew that you could trip on something at any minute because you couldn't see where you were walking. Isn't that right? A. I suppose it's right. I wasn't thinking." The Judge's Reasons for Liability 26The judge found: "Each piece of iron or steel in the mesh has an end which itself would provide a danger to persons seeking to traverse it. There is the easy possibility of stubbing a toe on the end of one strand of mesh. That was especially so if one was barefooted or, for example, wearing thongs or sandals. It does appear to me to provide an obvious tripping risk." 27He did not accept that it was "the usual sort of risk one would encounter on a suburban lawn." He accepted that in daylight the risk it constituted would be "fairly obvious" but at night it was not obvious. He found that it was an unusual trap or danger, and: "... especially so when one considers where it was placed. It was a danger for anybody seeking at night to enter the premises at [address]. One would have to traverse the mesh or go around it and that would imply that one knew it was there, or one would go perilously close to it in order to gain access to the passageway at the right hand side of the house." 28He inferred that it was the Appellant who placed the mesh on the ground on the Saturday or Sunday preceding the accident. That inference was drawn from the Appellant being houseproud, and from the mesh not having been observed by the Respondent during the preceding week. There is no challenge to that inference on the appeal. 29He found that a reasonable man in the defendant's position would have foreseen that his conduct in placing the mesh on the front lawn involved a risk of injury to a class of persons that included the plaintiff. He identified the class of persons who might be exposed to the risk as: "... any person who had any lawful reason to enter the property and, in particular, seek to enter the house or interview the residents of the house when the defendant himself was absent. The danger was posed not only to the teenagers who were the occupiers but to any who went to the house to care for them such as the plaintiff herself, Brooke's mother Paula, Brooke's grandmother Norma Gowan, the police who had previously been called, one would have thought any officers of the Department of Community Services who might be called there by the police or other neighbours, by the friends of the teenagers living in the house, by other relatives calling at the house and by any person who might have any lawful reason to approach the house including canvassers for charities or the pious young persons doing missionary work." 30The primary judge then considered what a reasonable man in the defendant's position would do in response to the risk. He recognised that, in considering that question, he should consider: "... the magnitude of the risk and the degree of probability of a risk occurring, along with the expense, difficulty and inconvenience of taking any alleviating action and conflicting responsibilities which the defendant might have." 31He found that no need had been established for the mesh to be there. He found that if its purpose was to protect the grass seed that the plaintiff had seen underneath it "it was of very small social utility compared with the risk offered to persons who sought to use the passageway", but as the Appellant gave no evidence he ultimately made no finding about the purpose for which the mesh was there. He found that the defendant should have removed it at night, perhaps by instructing Joel to remove it, and: "If he could not remove it at night, he should have removed it during his absence from the property, or in the alternative, he ought to have illuminated it at night." Civil Liability Act Provisions 32The primary judge made no mention in his reasons for judgment of s 5B Civil Liability Act 2002. However, counsel addressed him by reference to s 5B and made copies of the section available to his Honour. Judgment was delivered on the day after the addresses. Mr Sexton does not submit that the method of reasoning that the judge employed did not in substance comply with s 5B. 33In Laresu Pty Ltd v Clark [2010] NSWCA 180, Macfarlan JA (Tobias JA and Handley AJA agreeing) said at [42]: "In cases to which the Civil Liability Act applies, it is in my view important that a trial judge refers to its provisions to ensure that he or she adheres to it in his or her reasoning and that such adherence is apparent to an appellate court. Nevertheless I do not consider that the absence of such a reference in a judge's decision is sufficient on its own to establish that such a decision is erroneous. It will suffice in my opinion if it is apparent that the judge has addressed and determined the issues that the Civil Liability Act requires be addressed and determined." 34I respectfully agree. While I would reiterate that it is an important discipline for a trial judge to make decisions about whether conduct is negligent by reference to the criteria laid down in ss 5B, 5C and any other relevant provisions of the Civil Liability Act, the outcome of the present appeal does not turn on the trial judge's omission of any reference to ss 5B or 5C. Rather, it turns on whether, applying the criteria in ss 5B and 5C, the primary judge's conclusion is correct. 35Section 5B Civil Liability Act 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." 36Section 5C provides: "In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." Section 5B(1)(b) 37Mr Sexton assumes for the purpose of his argument that the risk of someone injuring themselves by tripping on the mesh was foreseeable, in the particular sense of that word that s 5B(1)(a) requires. However, he submits that the risk was insignificant, and thus that s 5B(1)(b) has not been satisfied. The basis on which he makes that submission is: "(i) On the evidence, the only person who might have been in the area at any time whilst the Appellant was away was the Respondent. There is no evidence of any other persons coming to the house other than the children, let alone at night; (ii) There was no reason to anticipate that a person attending the premises at night and attempting to access the back door would not have the benefit of the external lighting that was present - in this case it had been turned on by the children but for an unusual reason then turned off; (iii) The Respondent was the Appellant's neighbour and was familiar with the area; (iv) The Respondent knew of the presence of the wire mesh prior to her accident; (v) The mesh was small and was sitting on the front lawn; (vi) The mesh did not present any risk or danger to anyone except a person walking without shoes in the area at night. There was no evidence that the mesh was raised above flush or bent at all - a photograph was tendered of wire mesh in situ, but the evidence did not establish that it was the same piece. The accident occurred because the Plaintiff's foot came in contact with the edge of the mesh and she was not wearing shoes." 38I do not accept that submission. 39The harm in the present case is not to be identified solely by reference to the risk that the Respondent might harm herself. The "risk" referred to in s 5B(1)(b) refers back to the expression "a risk of harm" in the chapeau of s 5B(1). That is to be understood in light of the definition in s 5: "harm means harm of any kind, including the following: (a) personal injury or death, (b) damage to property, (c) economic loss." 40It is to be contrasted with the "particular harm" referred to in s 5D(1), which is the harm that the particular plaintiff has sustained: Woolworths Limited v Strong [2010] NSWCA 282 at [50] (an aspect of that decision not affected by its subsequent reversal in the High Court); Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [236]. 41Section 5B requires risks to be assessed prospectively. As a matter of ordinary language a "risk of harm" relates to harm that has not yet happened. That is consistent with the requirement in s 5B(1)(a) that the risk of harm be "foreseeable", which happens when a person knows or ought to know that there is a risk that harm might arise in the future. The "risk of harm" to which s 5B(1) refers is harm that might be suffered by anyone to whom the defendant owes a duty of care, as a consequence of the failure to take the precautions referred to in s 5B(1). 42There was a risk, at the time the Appellant drove away to work early on the Monday morning, leaving the mesh on his lawn, that people besides the Respondent might come to harm from encountering it. While the particular invitation for the Respondent to stay at his premises had been withdrawn, it was still foreseeable, particularly in light of children being left in the house to fend for themselves, that the Respondent might have occasion to go there, possibly at night. There was an evidentiary basis for it to be foreseeable that people other than the Respondent might come to the Appellant's premises at night, and encounter the mesh. Concerning the request by Ms Gowan to keep an eye on the children in the house, the Respondent's evidence was: "Q. What did that involve? A. Just making sure that there was nobody hanging around of a night when they were there by themselves." The Respondent's evidence was that, on the occasion the police called at the premises, it was "between 7 and half past at night time". 43Quite apart from this evidentiary basis, as a matter of common knowledge it is foreseeable that domestic premises in a town could be visited by a variety of people. There was nothing to stop anyone who might be so inclined from opening the front gate of the premises and walking in to the front lawn. 44In my view, the judge was right to identify the class of persons who might be exposed to the risk in the way he did ([29] above). 45There is no evidentiary basis to conclude that, even if such external lighting as there was at the front door was turned on, it would illuminate the area where the mesh lay. There was uncontested evidence from the Respondent that the lamp near the door had "just an ordinary light bulb in it", and did not throw out a lot of light. The judge stated: "how much illumination it threw is unknown to me." As well, the clutter between the front door and the place where the mesh lay might have created shadows at the spot where the mesh lay, and the evidence does not eliminate that possibility. For that reason, it is not possible to draw the conclusion that Mr Sexton puts forward, that a person attempting to access the back door at night would "have the benefit of the external lighting that was present". However, it was for the Respondent to show that "the risk was not insignificant". She has not established that the mesh would not have been illuminated by the lamp at the front door. Thus, consideration of whether the risk was not insignificant must be made other than by reference to that aspect of the lighting. 46While it is correct to say that the photographed piece of mesh was not established by evidence to be the same piece of mesh that the Respondent tripped over, the case below proceeded on the basis that the photograph indicated what the mesh that the Respondent tripped over was like. The photograph was received into evidence without objection. The Respondent gave unchallenged evidence that the mesh appearing in the photograph "appears to be the same size as the wire mesh you saw on 8 May", and that she was present when the photograph was taken. 47It is correct that the Respondent knew of the presence of the wire mesh prior to her accident. However, that does not have the consequence that the risk of leaving it there was insignificant. Whether the risk of leaving the mesh there was "not insignificant" is to be judged as at the time it was left there. At that time, the Respondent did not know of the presence of the mesh, and the Appellant took no steps, beyond leaving it in open view, to inform her about its presence. Further, it is not as though the Respondent was the only potential visitor to the premises. 48The judge's observation that each piece of iron or steel in the mesh had an end against which a person might stub a toe is not relevant to causation of the Respondent's injuries, because that is not the way in which her particular injury arose. However, notwithstanding that, it is still a relevant matter to take into consideration in deciding whether the risk of harm was "not insignificant", and whether a reasonable man in the defendant's position would have left the mesh there. The risk of harm that arises from a failure to take a precaution is the risk of all the harm that might be caused to a person who is owed a duty of care by the failure to take that precaution. It is not just the risk of the particular type of harm that befell a plaintiff. 49The standard for a risk being "not insignificant" is not particularly high. In Shaw v Thomas [2010] NSWCA 169 at [44], Macfarlan JA (Beazley and Tobias JJA agreeing) said: "In Wyong Shire Council v Shirt, Mason J referred to a risk 'which is not far-fetched or fanciful' as being 'real and therefore foreseeable' (at 48). The requirement in s 5B(1)(b) that the risk be 'not insignificant' imposes a more demanding standard but in my view not by very much." 50In my view it was foreseeable that a visitor might encounter the mesh, might trip on it, and thereby there was a risk that injuries that were more than insignificant might result. It should be observed that the mesh was positioned such that it was possible for a person tripping on it to fall not only on the lawn, but against the house, garden statuary, or the concrete path. The significance of the possible injuries is one part of assessing whether the risk itself is not insignificant, but not the whole of that assessment. As well, the likelihood of the harm arising enters into that question. I would accept that the Respondent had established that the risk of harm arising from the presence of the mesh was not insignificant. Section 5B(1)(c) 51In my view the judge was mistaken in holding that a reasonable person in the Appellant's position would have taken the precautions that he identified. Previous Cases Re Householders Reasonable Care 52Other superior courts have given consideration to what is required for a householder to take reasonable care to avoid injury to someone attending his or her premises. A court's decision about whether reasonable care has been taken in a particular situation is a question of fact, which does not constitute a precedent that binds other judges. Even so, it is instructive to consider the way in which other courts have decided whether reasonable care has been exercised in a particular situation. Other cases can illuminate the factors that might bear upon the question of whether reasonable care has been taken. The manner in which those factors have been weighed against each other provides part (but by no means all) of the exemplification of community standards that a judge, filling the role of a jury in deciding whether reasonable care has been taken in a particular situation, draws on in making his or her own decision with respect to that issue. 53In Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631, the High Court held that a householder was not liable when a visitor to the premises tripped on an uneven surface in the driveway of his home while attending a garage sale. That accident occurred in daylight, and arose from a static condition of the premises. The accident occurred in South Australia, where the liability of an occupier is the common law standard adopted in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488, as modified by s 17C(2) Wrongs Act 1936 (SA). Gleeson CJ explained at [11] that s 17C(2): "... gave directions to courts as to what was to be taken into account in determining the standard of care to be exercised by an occupier of premises. Section 17C(2) listed a series of matters, all of which go to questions of reasonable response to risk, and concluded by referring to 'any other matter that the court thinks relevant'. The matters listed in paras (a) to (g) of s 17C(2) included factors that, in one way or another, were taken into account in the old common law categories, but the inflexibility of the old approach was not revived. Section 17C(3) then provided: (3) The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.'" 54Gleeson CJ observed, at [4]: "Very few occupiers keep their land in perfect repair. People are permitted to occupy, and some people can only afford to occupy, premises that are in a state of some disrepair. Legislative and regulatory incursions upon the general proposition that a landowner may use land as the landowner sees fit, extensive as they have been, have never gone to the point of requiring people to remove all potential hazards from their land. It would not be possible to comply with such a requirement." 55He observed, at [7]: "Ordinary dwelling houses contain many hazards which give rise to a real risk of injury. Most householders do not attempt to eliminate, or warn against, all such hazards." 56After referring to the formulation in Zaluzna of the duty of care of an occupier being to do what a reasonable person would, in the circumstances, do by way of response to a foreseeable risk, he continued, at [8]: "The same problems of everyday living that were sought to be addressed by the old, categorical approach to liability still had to be accommodated by the new approach. Those practical realities include the following. Not all people live, or can afford to live, in premises that are completely free of hazards. In fact, nobody lives in premises that are risk-free. Concrete pathways crack. Unpaved surfaces become slippery, or uneven. Many objects in dwelling houses could be a cause of injury. People enter dwelling houses for a variety of purposes, and in many different circumstances. Entrants may have differing capacities to observe and appreciate risks, and to take care for their own safety. An ordinary kitchen might be reasonably safe for an adult, and hazardous to a small child. The expression 'reasonable response in the circumstances' raises a question of normative judgment which has to grapple with all the practical problems that the law had earlier attempted to solve ... The problems did not disappear. They now require consideration under a somewhat different rubric. The fundamental problem remains the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises. That problem is no longer addressed by prescriptive legal rules which attempt to establish precise and different standards of care for different classes of entrant. Yet the problem remains." 57He said, at [12]: "If doing nothing about a hazard were of itself sufficient to constitute negligence, there would probably not be an occupier of land in South Australia who could pass that test. It is, however, a useful reminder to decision-makers. The kind of hazard involved in the present case illustrates why that is so. The hazard was an unevenness in the surface of land which could cause a person to trip and fall. There would be few, if any, suburban houses that do not contain hazards of that kind." 58And at [14]: "The response of most people to many hazards in and around their premises is to do nothing. The legislature has recognised, and has reminded courts, that, often, that may be a reasonable response." 59Similarly, Hayne J at [96]-[97] said: "Any suburban house presents many features that can lead to injury: Jones v Bartlett (2000) 205 CLR 166 at 177 [23] per Gleeson CJ; Thompson v Woolworths (Q'Land) Pty Ltd (2005) 79 ALJR 904 at 911 [36]. 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 by telling them: 'Be careful, the driveway upon which you are to walk is no different from most other driveways.' The fact that the appellant had invited the public to attend a garage sale, and displayed the goods for sale as she did, requires no different conclusion. It is only when the particular event of the respondent's stumble is known to have happened that it appears reasonable to take steps to reduce or eliminate the danger presented by unevenness in the driveway surface. Only with that knowledge does it appear reasonable to point out or cover that irregularity. But that is to look at the problem with hindsight. That is not the question the statute (or the common law Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422) presents. That question is what would have been the reasonable response of the occupier before the accident happened." 60In Jaenke v Hinton [1995] QCA 484; Aust Torts Reports ¶81-368, a decision of the Queensland Court of Appeal, Williams J (Pincus JA and Thomas J agreeing) held that a householder had not breached a common law duty of care when a milk deliverer injured herself when, at night, she tripped on a hose on the householder's lawn. The plaintiff in that case was familiar with the premises, had observed the hose in the yard previously, and had a torch. Williams J said, at 62,810: "An ordinary garden hose is a common feature found in most suburban yards of Brisbane. So much was virtually conceded by the respondent in her evidence. The presence of a hose running across a mown lawn is not ordinarily considered to constitute a danger to persons walking across the yard either in day time or at night time. If a hose running across the lawn constitutes a danger to a person traversing the yard at night time with the aid of a torch, and knowing of the likelihood of a hose being there, it is logically difficult to conclude that it does not constitute a similar danger during daylight hours. Further the risk of injury to a person from merely stepping on a hose in those circumstances is very slight; indeed it is so slight that it would not ordinarily be regarded as foreseeable." 61He did not decide the case on the basis of absence of duty of care, but on the basis of there being no breach of a duty of care. He concluded, at 62,812: "But it must be reconsidered that hoses are often used for hours at a time, both during the day and at night. Further, even when the hose is in use there could be a considerable length of it on the ground between the tap and the watering point. If the breach be in not rolling up the hose after use, it must follow that the mere presence of an ordinary garden hose running across mown lawn whilst the hose was in use constituted a danger which a reasonable householder failed to remove at his peril. As I have already noted, it is not uncommon for Brisbane householders, who would ordinarily be regarded as people taking all reasonable care to avoid creating risk of injury to persons using their yards, to leave an ordinary garden hose lying across the lawn. Further, as already noted, this particular respondent had regularly encountered hoses in such a position whilst she was delivering milk. When the balancing test favoured by the High Court is applied to the facts of this case there can, in my view, be no doubt but that the appellants were not guilty of negligence in leaving their hose across the lawn as they did. That is not to say that a garden hose may never ever constitute such a potential danger to an entrant upon land as would provide a basis for a finding of negligence. It is sufficient for present purposes to say that more would be required before a garden hose lying across lawn could constitute such a danger as to make the landowner liable in negligence of a person injured as a result of stepping on it." 62In the course of reaching that conclusion, he quoted with approval remarks of Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74: "There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed." 63In Jaenke, Pincus JA, in supplementary reasons at 62,808 said: "... the law is not that the reasonable person, for the purposes of the relevant test, is one who is most unusually, or obsessively, apprehensive of harm to others. To apply this to the present case, it could not be denied that some householders might, to avoid the possibility of someone such as the respondent being injured by a hose lying across the lawn, move it out of the way at night; but it seems to me impossible sensibly to conclude that ... a reasonable person, as opposed to a remarkably cautious one, would not accept the continuance of the risk involved in the hose being left lying across the lawn." 64Thomas J, in supplementary reasons at 62,808 said: "If such a duty exists, as Williams J has pointed out, a householder would be potentially liable whenever a hose was not folded away after use, and indeed even when it was in use. I do not consider that a householder is generally at legal risk for mishaps that might arise from persons coming into contact with a garden-hose any more than he or she is liable for mishaps to persons coming into contact with a kitchen table (Phillis v Daly (1989) Aust Torts Reports ¶80-234 at p 68,474; (1988) 15 NSWLR 65 at p 74), with a pot-plant in a special place, or a car parked in a garage. Nor do I think that a householder is at risk with respect to a plastic-wrapped newspaper until such time as he or she removes if from the lawn. In the examples which I have given, the magnitude of the risk and the probability of its occurrence are in the absence of special circumstances too small to be regarded as foreseeable risks giving rise to a duty of care. I do not say that it would always be impossible for objects of these kinds, in the circumstances of a particular case, to be held to be the subject of a breach of a duty of care. But I am of the view that in the context of ordinary suburban living in 1995, such objects do not in general give rise to a duty of care to prevent persons from suffering mishap from coming into contact with them." Section 5B(2)(a) 65In determining whether a reasonable person would have taken precautions against a risk of harm, s 5B(2) requires the court to consider the four factors there listed. Concerning s 5B(2)(a), in the present case, while the risk of harm could not be dismissed as being insignificant, there was a fairly low probability that harm would result if the Appellant did not take care. 66A factor relevant to the probability of harm resulting from the presence of the mesh is that it was located on private property, and was not on the ordinary means of access from the front gate to the front door. People unfamiliar with the Appellant's habit of locking the security door and who visited the premises would, in the ordinary course, proceed from the front gate to the front door, a path which would not involve them encountering the mesh: cf Halliday v Neville (1984) 155 CLR 1 at 7. This would be the usual path adopted by such visitors, both by day and by night. Even if a visitor knew of the Appellant's habit of locking the security door, it would only be visitors who had an express or implied permission from the Appellant to go to the back door who would not be trespassers in going there. It is foreseeable that private property might be trespassed upon. However, an occupier of land, considering what reasonable care requires of himself or herself, is entitled to take into account that trespassers are the exception rather than the rule. The particular sequence of events that led to the Respondent's injury - of entering the premises at night, barefooted, going first to the front door, being directed to the back door, having the light turned out, being distracted to some extent by a passing car, momentarily forgetting the presence of the mesh that she already knew about, and getting her toes entangled in the mesh - is most unusual. 67The Respondent gave no evidence that the mesh in question was bent or twisted or anything other than flat. She gave no evidence that its upper surface was raised above the surface of the ground to any extent greater than the thickness of the mesh itself. The judge made no finding about the thickness of the mesh, beyond his finding that it was "much thicker than chicken wire". A photograph in evidence shows that the mesh comprises a set of wires or thin rods spaced equidistant from each other and lying parallel to each other, with another set of wires or thin rods, also parallel to each other and spaced equidistant from each other, aligned perpendicular to the first set of wires or rods and fixed to the top of the first set of wires or rods. From that one can conclude that the upper surface of the mesh would lie at least the thickness of two wires or rods above the surface of the ground. When one does not know the thickness of the wires or rods themselves, that conclusion does not go very far to establishing that by reason of its height above the ground the mesh posed a significant tripping hazard. 68The mesh has gaps, each approximately square, between the wires or rods. The size of those gaps is not established with any precision. The photograph shows a mesh that has about forty rods abutting its longer edge. If that edge measures about one metre, the gaps would be, very approximately, 25 mm square. On the basis of the evidence, any risk of someone who was wearing fully enclosed footwear tripping by being caught up in one of the gaps could not be concluded to be other than very slight. The risk of someone wearing sandals or thongs tripping by being caught up in one of the gaps is also slight. In inland New South Wales, on an evening in early May, it would be foreseeable that people might go outdoors barefooted or with open footwear, but it would be expected that many people would prefer footwear of a warmer kind. 69By day or night, someone would be likely to encounter the mesh only if they already had permission (whether a standing permission, or an ad hoc one) to proceed to the back door. During daylight hours such risk of tripping as might arise from the mesh lying on the ground was one which would be encountered only by a highly inattentive visitor. Even at night, there was a fairly low risk of harm resulting from its presence. Section 5B(2)(b) 70Concerning s 5B(2)(b), if harm were to arise from the presence of the mesh, it could be harm of quite variable degrees of seriousness. The harm that the Respondent suffered in the present case was fairly serious - in broad terms, her left shoulder has been seriously compromised, and she suffered an aggravation of a pre-existing but symptomatic degenerative disease in her lumbar spine. The judge assessed her non-economic loss at thirty percent of a most extreme case. However, it could not be said that it was likely that anyone who suffered injury as a consequence of encountering the mesh would suffer harm as serious as that. Section 5B(2)(c) 71Concerning s 5B(2)(c), the burden of taking precautions to avoid the risk of harm is fairly slight. Consistently with s 5C(a), that burden needs to be assessed bearing in mind not only the very small burden that would have been involved in picking the mesh up, or lighting it, but also the burden of taking precautions to avoid any similar risks of harm that there are in the Appellant's yard. Section 5B(2)(d) 72Concerning s 5B(2)(d), the social utility of the activity that created the risk of harm was quite slight. I say "quite slight" rather than non-existent because aesthetic factors such as presenting a well maintained lawn to the street are not to be ignored in assessing negligence: cf Phillis v Daly at 68-69 per Samuels JA. However, Ipp JA (Spigelman CJ and Tobias JA agreeing) said in Waverley Council v Ferreira [2005] NSWCA 418; [2005] Aust Torts Reports ¶81-818 at [50] that s 5B(2)(d) "simply gives expression to the idea that some activities are more worth taking risks for than others". Ipp JA gave an example of an occasion when precautions that would normally be thought reasonable need not be taken. It was when an emergency vehicle is speeding an injured or sick person to hospital. The social utility of the mesh hardly bears comparison with that example. Other Matters 73The four factors listed in s 5B(2) are not necessarily exhaustive of the matters which might enter into the question of whether a reasonable person would have taken precautions against a risk of harm. The subsection itself recognises this, by the parenthetical phrase "amongst other relevant things". However, no factors that do not fit within the four listed ones are said to be applicable in the present case. 74Even when the four factors, and any other ones that might be relevant, have been taken into account, there remains an evaluative task of weighing up the relevant factors to conclude whether in the circumstances, a reasonable person in the Appellant's position would have taken the precautions against a risk of harm that he has in fact failed to take. 75As the authorities to which reference has been made illustrate, it is not uncommon for householders to leave lying on their lawn objects like a hose, a gardening tool or a child's toy. It is not unusual for a lawn to have a potential obstruction like a tap or birdbath protruding from it, to have obstacles to free passage like garden furniture on it, or to have potential hazards like watering system outlets sunk in it. A reasonable householder would often not feel any need to take precautions against harm arising from the presence of such objects. In daylight they will be visible, and many a reasonable householder would take no precautions concerning such objects in case people came to be on his or her lawn (as opposed to front path or driveway) at night. It would be quite a surprise to many householders to be told that reasonable behaviour requires them to clear all obstacles from their lawns before each nightfall. Many a town or suburban house lacks lighting that permanently illuminates at night obstacles to free progress over the entire front yard. The Appellant in the present case did not fail to take reasonable care by leaving the mesh where it was, and unlit. Orders 76I propose the following orders: (1) Appeal allowed. (2) Set aside the verdict for the Respondent in the court below. (3) In lieu thereof, order that the proceedings below be dismissed with costs. (4) Respondent to pay the costs of the Appellant of the appeal. (5) Respondent to have a certificate under the Suitors Fund Act 1951. 77HOEBEN JA: I agree with Campbell JA and the orders which he proposes. 78TOBIAS AJA: I agree with Campbell JA. ********** 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. Decision last updated: 18 October 2012