Department of Housing and Works v Smith [No. 2]  WASCA 25
The Plaintiff leased a unit in block of 16 residential units from the Defendant. The Plaintiff, who was 72 years of age, fell on an area of lawn at the block of the units and sustained personal injuries.
The Plaintiff’s evidence was that there was some washing lines on this small area of lawn just near her unit. She used to walk around the lawn on a pathway to get to her washing line about 3 times a week.
Another tenant had previously placed a bird bath on the lawn and put plants around it. When that tenant moved out, the bird bath and plants were taken away. Where the base of the bird bath had been, there remained a depression in the lawn which was about an inch deep in the centre and tapering off to ground level around the edges. The depression was variously said to be about the size of a cup and saucer up to 2 feet across. The evidence was that the Plaintiff was generally familiar with the area and was aware that the bird bath had been on the lawn and subsequently taken away but strangely neither Counsel had asked the Plaintiff whether she had seen or knew of the existence of the depression before the incident.
A nearby neighbour of the Plaintiff gave evidence that she noticed the depression in the lawn because she walked over the lawn to the washing lines. The depression contained sand and lawn.
On one day the Plaintiff was ‘hurrying or practically running across the lawn’ when her foot went into the hole causing her to fall.
A lawn mowing contractor employed by the owner was called to give evidence. He said he used to mow or whipper snip the lawn. His contracted obliged him to notify the appellant of any problem requiring work or attention outside the terms of his contract. He described the lawn as having brown patches and weeds. Again he was apparently not asked by either Counsel whether he saw the depression in the lawn.
The Plaintiff’s case against the owner was essentially that it failed to ensure the depression was filled in so it did not constitute a danger to persons walking on the grassed area. The defence of course was that the Plaintiff caused or contributed to her own injuries by failing to keep a proper look out and failing to observe and take steps to avoid known hazards.
The Trial Judge had found that the risk was not insignificant and that it would have been a simple process to remove the risk by filling the depression with sand. He said that the depression was a sort of thing that could be easily overlooked by momentary inadvertence. The evidence of the neighbour that she was aware of the hole and took steps to avoid it was no significance given that she generally walked straight across that position to get to the washing line from her property and that was not the Plaintiff’s position.
The Court said regardless of whether you would apply the Civil Liability Act or the common law it was necessary to look forward and identify what a reasonable person would have done not backward to identify what would have avoided the particular injury or damage. Reasonableness may require no response to a foreseeable risk.
In that regard, the Court determined at paragraph 35 that “a reasonably person in the position of the [owner] would have done nothing by way of remedial work to deal with the risk of injury which might be caused by the slight depression in the lawn, the existence of which was obvious to a person choosing to look where they were going when they were crossing the lawn … there was no evidence to show that there was any significant risk of injury for a person exercising sufficient care for their own safety by looking where they were going and perceiving and avoiding obvious hazards”.
What to Take Away
The relatively simple facts of this case invoked a lengthy discussion in the Western Australian Court of Appeal as to whether the respective Civil Liability Acts of the states, after the High Court decision in Adeels Palace Pty Ltd v Moubarak  HCA 48 simply modified or entirely supplanted the common law relating to duty, standard of care and causation. Justice Pullin with whom Justice Newnes agreed, stated that “the impression I gained from the reasons is the High Court regarded the relevant provisions of the [CLA] as supplanting the common law.”
Justice Buss, whilst agreeing with the other two Justices as to the appropriate outcome of the appeal, felt that the Civil Liability Act did not define when a duty of care was owed and that determination remained subject to the common law. The Civil Liability Act only entered the fray on the area of breach. It seems therefore that this must go for further clarification to the High Court. The short term lesson for practitioners is to attempt to deal with both. Certainly it is without question that the requirements of section 9 of our Act must be dealt by the Plaintiff in attempting to prove their case on breach.
It might also be heartening for the Defendants to note that the Western Australian Court of Appeal in 2010 was still quoting the decision of Callinan J in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council  HCA 29 where His Honour said “there is no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this.”