Hinton v Jaenke[1995] QDC 43

CIVIL JURISDICTION

CHIEF JUDGE SHANAHAN

and

BRISBANE

DATE 17/02/95

JUDGMENT

HIS HONOUR: I give judgment for the plaintiff against the defendants for $36,001.50.

I order the defendants to pay the plaintiff's costs of the action to be taxed on the scale applicable where less than $50,000 is recovered.

HINTON v JAENKE

District Court at Brisbane, Queensland

His Honour Judge Maxwell Morley QC

368/92

24, 25, 27 January, 8 February 1995

Damages - personal injury - female 50 years - ankle fracture - lower leg disability 10%

Damages - personal injury - gratuitous services rendered to plaintiff - general damage - interest thereon as if general damage - Van Gervan v Fenton 1992 175 CLR 327 - MBP(SA) Pty v Ltd v Gogic 1991 171 CLR 657

Damages - personal injury - partner - impaired income earning capacity - relevance of partnership expenditure or loss - Seymour v Gough (unreported, 239/93, 14 December 1994, SCt(Q) CA)

Evidence - in not admissible form - relevant - not objected to - how treated - Gilbert v Endean 1876 9 ChD 259 - Jones v Sutherland Shire Council 1979 2 NSWLR 206 - Miller v Cameron 1936 54 CLR 572, 577, 582

Evidence - negligence - prove duty of care - reasonable foreseeability of risk of harm - defendant asked if risk had been foreseeable - not objected to - treatment of that evidence - Wyong Shire Council v Shirt 1980 146 CLR 40, 47 - The Commonwealth v Introvigne 1982 150 CLR 258, 267 - Australian Safevay Stores Pty Ltd v Zaluzna 1987 162 CLR 479, 488 - Magle v Rottnest Island Authority 1993 177 CLR 423, 430-431 - Jones v Dunkel 1959 101 CLR 298 - G v H 1994 68 ALJR 860, 861 - Malec v J C Hutton Pty Ltd 1990 169 CLR 638, 639-40, 643

Negligence - occupiers of residence - milk vendor delivering milk - hose on lawn not on established pathways - darkness hours - milk vendor slipped on hose - general duty of care - whether risk foreseeable - breach? - Wyong Shire Council v Shirt 1980 146 CLR 40, 47 - The Commonwealth v Introvigne 1982 150 CLR 258, 267 - Australian Safeway Stores Pty Ltd v Zaluzna 1987 162 CLR 479, 488 - Magle v Rottnest Island Authority 1993 177 CLR 423, 430-431

Negligence - contributing fault - what constitutes - causation? - apportionment legislation - apportionment assessment - Bennett v The Minister 1992 176 CLR 408 - March v Stramere (E&MH) Pty Ltd 1991 171 CLR 506, 513 - Bankstown Foundry Pty Ltd v Braistina 1986 160 CLR 301 - Pennington v Norris 1956 96 CLR 10, 15-16

8 February 1995

JUDGE MORLEY QC: The pleadings read disclose that the plaintiff claims damages for negligence or for breach of contract and statutory interest. The alleged damage is the plaintiff's 20 February 1989 injury and its consequences. The relevant relationship alleged is the defendants' occupancy of land entered by the plaintiff. The contract alleged is for the plaintiff's regular deliveries of bottled milk to the defendants' residence. The defendants deny damage. They deny negligence. They deny any breach of contract. They deny causation. They allege, alternatively, that the plaintiff's fault contributed to any proved damage. During submissions the plaintiff abandoned the pleaded cause based on contract, and the defendants conceded that the plaintiff had proved that she had sustained an injury on 20 February 1989.

The plaintiff has proved that her injury has caused her pain, suffering, discomfort and loss of amenity. She has proved facts supporting a confident prediction that she will incur some pain, suffering, discomfort and loss of amenity caused by that injury.

The injury was a painful tri-malleolar fracture to her left ankle accompanied by abrasions, bruising, and shock. Surgery at hospital on 20 February 1989 fixed the fracture by inserted metal pins. The plaintiff remained in hospital for about 3 days. She left hospital fitted with a short leg plaster cast on her lower left leg. Rehabilitation was slow and with complications. The plaster cast was removed and the plaintiff's left ankle area swelled, and was stiff in cold weather, in the morning, and after inactivity. She was unable to work for about 10 weeks, beyond which the symptoms just mentioned continued. On 31 January 1990, when the injury was not quite a year old, the inserted pins were removed by surgery. After one day in hospital, the plaintiff was unable to work for about 3 weeks.

It was a painful injury. Pain relieving medication has had to be and will have to be taken. The plaintiff continues to sustain intermittent pain and stiffness, particularly after inactivity such as sitting in one position. Some initial activity is required to remove that stiffness. Extensive use of the left leg causes pain and discomfort then needed to be eased by rest and painkilling medication.

But another consequence of the plaintiff's injury-caused disabilities was that she lost, for the mentioned intervals comprising 13 weeks, the ability to care for herself in her family environment. She received the benefit, of a market value of not less than $1000, from members of her family of extraordinary housekeeping assistance - extraordinary in the sense that if not incapacitated by this injury she would not have received it. No payment having been made for the services received, this is part of the plaintiff's general damage: Van Gervan v Fenton 1992 175 CLR 327. Statutory interest upon it, if awarded, should be at a rate consistent with MBP(SA) Pty Ltd v Gogic 1991 171 CLR 657.

She has a scar, seemingly caused by the surgery, on each side of the ankle. To understand the evidence of them they were viewed during the trial. The plaintiff has a permanent disability in extent about 10 per cent of the lower left leg. Post traumatic osteo-arthritis is present. That conclusion of fact that that degenerative condition is present is based on my preference for the expert evidence from the expert witness orthopaedic surgeon Dodsworth who, on my assessment, by both the manner of giving evidence and its clear detail, revealed a mastery of the difficult and highly subjective subject of X-rays interpretation particularly in respect of those indicia of osteo-arthritis in early development.

That acceptable expert evidence supports predictions of but limited strength that gradual deterioration of the plaintiff's present symptoms may occur, and that an arthrodesis, to stiffen the ankle to alleviate pain on active future use, or neurosurgery, to negative sensation for such pain, may become a reasonable measure to mitigate damage. The cost in contemporary currency of arthrodesis surgery is not less than $4000 and a recovery period of about 6 months together with needed extraordinary services would follow. In contemporary currency the value of the neuro-surgery is not less than $500 and a shorter recovery period together with needed extraordinary services would follow. In assessing damages the limited strength of these predictions should be heeded. See Malec v J C Hutton Pty Ltd 1990 169 CLR 368.

The plaintiff, a female, is rising 50 years of age. She is married. She resides with her husband in a Brisbane suburb. Their children, aged 27 and 31, are self supporting and reside no longer with their parents. The plaintiff pursued an active lifestyle, particularly in recreational boating and sailing with her husband. This has been and will be restricted by her ankle disability, by its symptoms, and by her understandable wish not to expose it to stress or further injury risk.

I have concluded that $35,000 is appropriate compensation for that already mentioned incurred and predictable damage, loss of amenity, pain, suffering, and discomfort - including the disability causing the need for extraordinary household assistance already mentioned and the possibility of further surgery and its consequences. An assessment of the loss of amenity and damage to be incurred must heed that this plaintiff's life expectancy is that of a female of 50 years. There should be added $2160 statutory interest in respect of that which has been instrength that gradual deterioration of the plaintiff's present symptoms may occur, and that an arthrodesis, to stiffen the ankle to alleviate pain on active future use, or neurosurgery, to negative sensation for such pain, may become a reasonable measure to mitigate damage. The cost in contemporary currency of arthrodesis surgery is not less than $4000 and a recovery period of about 6 months together with needed extraordinary services would follow. In contemporary currency the value of the neuro-surgery is not less than $500 and a shorter recovery period together with needed extraordinary services would follow. In assessing damages the limited strength of these predictions should be heeded. See Malec v J C Hutton Pty Ltd 1990 169 CLR 368.

The plaintiff, a female, is rising 50 years of age. She is married. She resides with her husband in a Brisbane suburb. Their children, aged 27 and 31, are self supporting and reside no longe with their parents. The plaintiff pursued an active lifestyle, particularly in recreational boating and sailing with her husband. This has been and will be restricted by her ankle disability, by its symptoms, and by her understandable wish not to expose it to stress or further injury risk.

I have concluded that $35,000 is appropriate compensation for that already mentioned incurred and predictable damage, loss of amenity, pain, suffering, and discomfort - including the disability causing the need for extraordinary household assistance already mentioned and the possibility of further surgery and its consequences. An assessment of the loss of amenity and damage to be incurred must heed that this plaintiff's life expectancy is that of a female of 50 years. There should be added $2160 statutory interest in respect of that which has been incurred. This injury is now almost exactly 6 years old. I decline to uphold a submission that statutory interest should be computed upon a limited term. The defendants have not paid or sustained any liability to pay damages, and the plaintiff has sustained the damage accruing from February 1989.

The plaintiff has proved incurred economic loss caused by the injury. This loss is alleged to have been in part special damage the value of which is agreed, in part impairment and loss of capacity to earn income, and in part the need for substitute personal services in support of the plaintiff's partnership undertaking.

That part of the special damage value which has been admitted refers, it seems, to incurred hospital fees and medical and pharmaceutical expenses. That admitted value is $1573.78. No issue was taken that, upon that part of that which the plaintiff has paid, $119 statutory interest should be added.

A further claim in the nature of special damage is in issue. When injured the plaintiff was a partner in an equal partnership with her husband. The business was that of milk vending delivering bottled milk to suburban households. The plaintiff was an active partner. She delivered milk. She was doing so when she was injured. For the 13 weeks' disability intervals already mentioned her personal exertion in support of the partnership business was substituted by the services of the witness Mitchell who was not then but is now the plaintiff's son-in-law. Mitchell has not been paid for these services. The plaintiff has undertaken to pay, if and when she can do so, Mitchell $3150 for his work in undertaking her duties to make deliveries for the partnership. My conclusion is that this is a liability which the plaintiff has incurred but not paid and is a special damage which she has proved to have been a consequence of the injury she sustained. Some submissions asserted that this part of this plaintiff's claim depends upon proof of what detriment the plaintiff had sustained as a partner in this action in which not all of the partners were plaintiffs and in which the plaintiff had not pleaded any partnership claim. My attention was drawn to, and to the decided cases mentioned in, Seymour v Gough (unreported, 239/93, 14 December 1994, SCt(Q) CA - Fitzgerald P, Davies, Pincus JJA). It may be that Seymour, supra, when analysed for its ratio, accepts that an injured plaintiff must prove the value of her or his alleged loss or impairment of capacity to earn income; and that such a plaintiff who happens to be a partner or a company shareholder may fail to establish the basis for an inference or conclusion what that value is by proving primary facts merely demonstrating the value of a detriment sustained by the partnership or the company. The plaintiff in this instant case is seeking to prove but her own loss incurred - that she should pay Mitchell for his services to make good her performance of part of her partnership duties.

Thus the plaintiff has proved special damage of $4723.78 ($3150 - $1573.78) to which the mentioned $119 statutory interest should be added.

The plaintiff's case on economic damage caused by her injury includes her assertions that she has sustained damage in the form of her lost and impaired earning capacity and that she has proved facts to support predictions that she will sustain an impairment and temporary loss of that capacity caused by the injury. She has succeeded in proving such facts and she has proved the alleged incurred loss.

The plaintiff, prior to and to the February 1989 injury, derived income from employment and as a partner in the partnership. With Mitchell's services to replace her partner's personal exertion she did not seek to allege or prove that she had sustained any injury caused diminution of her partner's income or capital. While but not as a partner, the plaintiff was employed by a retail store proprietor. It was not contested that she, due to the injury, had proved that she was unable to continue that employment for 104 weeks from the injury date. Arithmetical calculations, based on a premise that the uninjured plaintiff would have been able to continue that 104 weeks employment uninterrupted by any other adversity and deducting the plaintiff's actual earnings during that period, disclose that the plaintiff's notional net after income tax income diminished by $11,433. That sum is not the value of the damage incurred - for its computation assumes that the uninjured plaintiff's employee's earning capacity was without risk of adversity or interruption.

That the plaintiff's earning capacity from now will be impaired by the consequences of the injury is a confident prediction supported by historical facts and expert opinions proved. Part of that prediction is the earlier mentioned prediction of limited strength that surgery, as mentioned, will be a reasonable need - as already mentioned. The plaintiff's earning capacity from now, were she uninjured, is limited by her age which, in turn, limits, within the predictions to be made and assessed for their strengths, the plaintiff's notionally uninjured earning life expectancy.

Facts proved support a strong prediction that, during her life expectancy, the plaintiff will continue to incur expense for necessary painkilling medications. The present yearly rate is not less than $405, and the present value of that, assuming but a decade hence as the term, is about $3220. This is another part of this plaintiff's general damage.

I have concluded that $25,000 is appropriate compensation for these aspects of the plaintiff's incurred and yet to be incurred damage, and, in respect of but that of that damage incurred, statutory interest of $5000 should be added.

In the manner by now revealed I have concluded that the value of the plaintiff's damage caused by the injury together with statutory interest should be assessed at $72003 (the relevant sums being $35000 + $2160 + $4723.78 + $119 + $25000 + $5000). I consider, after reflection, that that evaluation is not disproportionate to the entire of the plaintiff's proved damage.

Final addresses by Counsel isolated issues for determination to be first, whether the plaintiff had proved any owed duty of care, second, whether the plaintiff had proved any breach of any proved duty, and, third, whether the defendants had proved the plaintiff's fault was the or a cause of her injury. Further, a vigorously contested issue of fact was whether the plaintiff had proved that her injury was caused by her fall on the defendants' land and upon a garden hose on that land. The plaintiff's case was that her injury was caused by a hose, a garden hose, lying upon the lawn on the defendants' land; and submissions included the plaintiff's concession that if that manner of injury be held not proved the plaintiff must be held to have failed to prove her case on negligence.

The plaintiff's case on the facts includes that she was injured while upon the land occupied by the defendants. This was disputed vigorously. The defendants' case is that the injury occurred on the neighbour's land. This is an issue of but fact. My conclusion is that the injury occurred on the defendants' land not far from an umbrella tree mentioned in evidence and over a garden hose lying on the lawn surface. The injury place to which I am referring is, generally described, to the east of an extended front alignment of the defendants' residence and between their cement driveway and their allotment's northern boundary. I have assessed to be accurate and reliable the evidence related to this issue from witnesses Mitchell, the plaintiff, and the male witness Hinton. The effect of that evidence, much summarised, is that the plaintiff was upon the defendants' land when she fell and injured herself and remained there until she was picked up and carried away for treatment. This conclusion of fact is made after an assessment of both how the whole of the evidence upon this issue was given and the probabilities of the conflicting accounts within the entire of that evidence. I add but an observation that one possible explanation for the evidence from both defendants that the injured plaintiff was upon and was carried away from a place on the neighbour's land is that, from the defendant's respective observation positions, the two different places where the injury was asserted to have occurred would have been in the or substantially the same line of sight had in a state of light during darkness hours along which perceptions of space and distance could have been uncertain.

My further conclusion is that the plaintiff has proved facts which dictate a conclusion that the defendants owed a duty of care to remove or to have removed the hose from that lawn surface. The question to be determined is one of hypothetic past fact. The hypothesis is that a notional reasonable person be substituted for the defendants in their proved circumstances prior to and to the plaintiff's injury. The question is whether that reasonable person would have foreseen the possibility, not including the farfetched or fanciful but including the most unusual, that the hose in that position and circumstances could have caused injury to any one of a class of persons which included the plaintiff and who may or may not be taking proper care for his or her own safety. See Wyong Shire Council v Shirt 1980 146 CLR 40, 47; The Commonwealth v Introvigne 1982 150 CLR 258, 267; Australian Safeway Stores Pty Ltd v Zaluzna 1987 162 CLR 479, 488; and Nagle v Rottnest Island Authority 1993 177 CLR 423, 430-431.

Prior to the injury the defendants had resided in their residence at 126 Fegen Drive, Moorooka. Their house faced east. The front yard, slightly wider than the house, allowed access to the rear by either side. The bottom of the front steps giving access to the defendants' house was at the front alignment of the house slightly south of the southern edge of a cement driveway from which to the bottom step there was a short cement pathway. The straight cement driveway was designed to admit vehicles and pedestrians from the bitumen and sealed carriageway of, and from the footpath of, Fegen Drive up the driveway's ascending gradient to the garage under the north eastern corner of the residence. Along the northern side of that driveway was lawn from within which a large umbrella tree grew in a position slightly to the east of the produced front alignment of the house. Adjoining the allotment on its northern side was another residence on an allotment of similar area at 128 Fegen Drive which was occupied by the witness Currie, an elderly lady. The two residences were set back from Fegen Drive, the defendants' slightly more so. Mrs Currie's cement driveway was of somewhat similar construction leading to a garage at the south eastern corner of her residence. A fence of pipe-like steel railings and posts with wire mesh was between the houses along the common boundary but it did not extend at all or to any substantial extent beyond the houses' front alignments. Along the common boundary between the two driveways was a low stone edging. On either side of that part of the common boundary there was lawn in each of the front yards. From the Currie's driveway near the house a set of 4 stone steps had been built as part of the Currie's front garden landscaping. Those steps extended between the lower level of the driveway surface up to the higher lawn surface in Currie's front yard near to the boundary line marked with the mentioned stone edging.

The topography above described was proved by photographs adduced in evidence. My endeavour to clarify the description so far given is to introduce a notional pedestrian intent on a traverse of the area. Walking towards the north along the western footpath of Fegen Drive, the pedestrian would see a street light on a pole on the other side of Fegen Drive as the pedestrian drew level, on the left, with the southern boundary of the defendant's allotment at 126; would walk then along its front for more than half the width of allotment 126; would turn 90 degrees to the left to walk up the ascending gradient of the defendant's cement driveway; would meet (after walking along and up that driveway for a distance which seems from the two dimensional photographs to be about 6 to 8 car-lengths) the garage door; would walk then, after turning 90 degrees to the left at but just before that door, a short distance along a cement path to the foot of the front steps giving access to the house; would walk, after making a 180 degrees or about turn, back along that short path; would walk, upon veering in direction slightly (perhaps 10 to 15 degrees) to the right, across the top of the cement drive, then on a slight down gradient across some lawn, then past the umbrella tree on the left hand, then on a slight down gradient over a little more of the lawn to where the plaintiff was injured, then over more lawn, then with the end of the wire boundary fence away on the left hand, over the low stone edging on to Currie's allotment at 128 Fegen Drive, then on a slight down grade over more lawn to the top of the four stone steps, then down those steps to the surface of Currie's cement drive with the southeastern corner of Currie's house by then on the left hand and the front alignment of Currie's house to the left front, and then to the right down Currie's cement driveway (with the defendants' front yard then to the right) back to the western footpath of Fegen Street at a point outside Currie's residential allotment where the pedestrian would see to the left front another street light on the other (or eastern) side of Fegen Drive; then to close the notional traverse from there, the pedestrian from there would be required to turn to the right and walk south along the eastern side of Fegen Drive past the front of 126 Fegen Drive to the commencement point.

The lawn areas were mown and neat. The garden hose was lying upon the lawn in the vicinity of the umbrella tree and at the place of the plaintiff's injury. Green in colour, it was not a reinforced hose but of a softer plastic like composition. One of the defendants had left it there after watering the garden.

The defendants had engaged the plaintiff's partnership to deliver regularly bottled milk to be left at a place at or very near the foot of the defendant's front stairs. The defendants knew that that milk vendor delivered bottled to the front of Mrs Currie's residence. The defendants knew that they and Mrs Currie often walked from one of the residences to the other by a route past the umbrella tree and down the 4 stone steps.

My conclusion, already stated, is that the notional reasonable person in the defendant's' position and circumstances would have foreseen that the person to deliver bottled milk on the night of 19-20 February 1989 may have sustained injury caused by the hose lying on the lawn at or near the place of the plaintiff's injury.

More of my reasoning upon this issue I should expose. The conclusion just repeated is a conclusion of past hypothetic fact. Extended opposing submissions produced for me much fluctuation of opinion. The submissions arguing for the conclusion reached emphasised a contention that such an injury was not far fetched or fanciful and heed should be accorded to the contention that the person to deliver the bottled milk should be regarded as one who may not be acting with due care for her or his own safety. The contrary submissions emphasised the nature and location of the driveway and pathway at 126 Fegen Drive; the limited invitation which their format and location extended to the deliverer of the bottled milk - an invitation which did not include, it was argued, an invitation to move over the area at and near to where the plaintiff was injured; and that a milk deliverer would have expected objects to have been left by others using the residential land. My conclusion is a conclusion of fact (as distinct from a determination of primary fact from direct evidence). It is past and hypothetic in the sense that no proof is offered that a being, shown to be the required notional reasonable person, assessed, before the events, the foreseeability of the risk of injury caused by the hose. While forming the conclusion that foreseeability has been established, I considered the discussions about past hypothetic facts and the drawing of factual conclusions and inferences mentioned in Jones v Dunkel 1959 101 CLR 298, G v H 1994 68 ALJR 860, 861, and Malec v J C Hutton Pty Ltd 1990 169 CLR 638, 639-40, 643.

The treatment accorded by me to certain evidence relevant to the issue of foreseeability of harm should be exposed. Answering questions to which no objection was taken, each of the defendants gave evidence which I describe in general terms as being of or to the effect that, while they had not adverted at all to any risk of any possible injury caused by the hose, he and she now thought that that risk then was foreseeable. That is but a brief but sufficient identification of the body of evidence being referred to now. That body of evidence is relevant to (in the sense that it can be seen to relate to) the issue of foreseeability, but it is not in an admissible form. It is evidence not of a past or historical fact within a non-expert witness's knowledge. It is not expert evidence directed to any issue beyond empirical knowledge. It is evidence of a non-expert witness's opinion upon what conclusion of fact should be drawn. That conclusion ought to be made or declined to be made in the exercise of the fact-finding or “jury” function. The “jury” must identify and apply the standards of the notional reasonable person. If there were a jury sitting at this trial, the summing up would have had to have included the necessary directions and comment, inter alia, to instruct the jury upon the concept of the reasonable person's standards. Evidence of the description mentioned usurps the “jury” function. It seems that this evidence was directed to negativing the existence of any fact known to either defendant which might be thought by the defendant witness to rebut or tend to rebut the alleged foreseeability. That, too, would be adducing, in an indirect format, the opinions of each of the defendants deposing to non-expert subject matter. Not having been made the subject of objection, the evidence, relevant as it is in the sense mentioned, ought to receive from the fact finding function only such weight as its fairly assessed cogency affords. See Gilbert v Endean 1876 9 ChD 259, Jones v Sutherland Shire Council 1979 2 NSWLR 206, and Miller v Cameron 1936 54 CLR 572, 577, 582. I concluded that the body of evidence to which I am referring is not probative of the objective standard represented by the past hypothetically substituted notional reasonable person. I accorded that evidence no probative value upon the foreseeability issue.

I have concluded, too, that the plaintiff has proved that the defendants failed to discharge the duty which they owed. The question to be decided is what would have been the response by the notional reasonable person already mentioned to the mentioned foreseeable risk of damage. To determine that response is to determine another hypothetic past fact while heeding the magnitude of the risk, the degree of its probability of its occurrence, any difficulty or expense or inconvenience of alleviating it, and any other conflicting responsibilities to which the defendants may have been subject. See, eg, Wyong, supra, at 47, 48. The storing of the hose after use would not have been a complicated undertaking.

I have concluded that the plaintiff's injury was caused by the failure to discharge the duty mentioned. Whether causation has been proved by the plaintiff is a conclusion of fact to be made consistently with the principles discussed in Bennett v The Minister 1992 176 CLR 408. The evidence assessed by me to be reliable and accurate proves that the plaintiff, walking towards Currie's residence and in the vicinity of the umbrella tree, stood on the hose and fell sustaining the injury already described. Causation has been proved.

I accede to a submission that the plaintiff's fault was a cause of her injury. Apportionment legislation applies - so that the issue is whether the plaintiff's fault caused or was a cause of her damage - see March v Stramere (E & M H) Pty Ltd 1991 171 CLR 506, 513. The defendants allege the fault, so that this issue becomes whether the defendants have proved first, the alleged fault of the plaintiff, and, second, that her fault was a cause of the damage. See March, supra, Bennett, supra, and Thompson v Palmer 1933 49 CLR 507. To determine whether the alleged fault has been proved, the inquiry is whether the defendants have proved that the plaintiff failed to take reasonable care and reasonable precautions in the interests of her own safety. This principle is explained (as it applied to a relevant relationship of employment) in Bankstown Foundry Pty Ltd v Braistina 1986 160 CLR 301, in which it was held, by Mason CJ, Wilson and Dawson JJ in joint judgment reasons not on this point dissented from by the other members of the Court participating in that decision, namely Brennan and Deane JJ, that a plaintiff, in that case the employee, will be guilty of contributory negligence constituting fault if he ought reasonably have foreseen that, if he did not act as a reasonable man, he would expose himself to a risk of injury; but that his conduct must be judged in the context of a conclusion that the employer had failed to use reasonable care to provide a safe system of work thereby exposing him to unnecessary risks; and that whether, in the circumstances and under the conditions in which he was required to work, the conduct of the employee amounted not to mere inadvertence, inattention, or misjudgment, but to negligence rendering him responsible in part for the damage.

The plaintiff delivered the bottled milk to the place at the foot of the defendants' front stairs. To do that she had entered the defendants' land by moving up the driveway and over the short pathway to the stairs. She was carrying in one hand a metal and plastic container in which the bottled milk was placed. Fastened to her belt by a cord was an electric torch which she carried for use in her other hand. In that manner she left the foot of the stairs and walked across the top of the cement driveway on to the lawn area, past the umbrella tree, stood on the hose, and fell. She had the torch alight with its beam directed to her front. Darkness prevailed. The two street lights were alight in their respective positions on the other side of Fegen Drive. Rain had fallen shortly before the injury. All surfaces were damp. The plaintiff did not see the hose until after she stood on it and lost control of her balance. She was aware of the topography, having delivered bottled milk in a similar manner many times before the injury. Her intended path was to move into Currie's property via, inter alia, the stone steps, to deliver bottled milk at the front of that residence, and to leave by Currie's driveway back to Fegen Drive.

The defendants have proved that the plaintiff failed to maintain a proper lookout to her front. The hose was green but of a colour which was in contrast with the colour of the lawn surface. The plaintiff was moving in part of a suburban residential area which she knew to have been occupied and used by others. Of the possibility of obstacles and things on her path she knew. In my judgment this is more than mere inadvertence or inattention or distraction of a momentary kind; it constituted a failure to take reasonable care in the interests of her own safety in hours of darkness upon a part of inhabited residential land not specifically designed for use as a pathway for pedestrians.

That failure I have concluded to have been a cause of the plaintiff's injury and its consequences. See Bennett, supra.

The applicable apportionment legislation enacts that the plaintiff's damages otherwise recoverable must be reduced to such extent as the Court considers just and equitable having regard to her share in the responsibility for the damage. The comparison identified by Pennington v Norris 1956 96 CLR 10, 15-16 must be made. It is a comparison between the respective proved degrees of the departures from that of the reasonable person and the relative importance of the parties' respective acts causing the damage. See, too, Braistina, supra, at 311. I have concluded that the plaintiff's departure from that which was reasonable and its operative causal importance identifies it as having been as gross as that of the defendants' having failed to stow the hose away from the lawn surface upon which the plaintiff fell. I have concluded that the damages which the plaintiff would otherwise have recovered should be reduced by one-half. That reflects an assessment that the degrees of the respective operative negligence and fault are equal, and I have concluded that to be an appropriate assessment. The plaintiff's damages recoverable amount to $36001.50.

There may be further submissions needed to conclude the due determination of this action. I direct -