High Court of Australia Gibbs C.J. Mason, Wilson, Brennan and Dawson JJ. McLean v Tedman [1984] HCA 60 ORDER Appeal allowed with costs. Judgment of the Full Court of the Supreme Court of Queensland set aside, and in lieu thereof order that the appeals to that Court by the first respondent and the second respondent be dismissed with costs. Cur. adv. vult. The following written judgments were delivered:— Oct. 16 Gibbs C.J. The facts of this case are set out in the judgment of the other members of the Court, which I have had the advantage of reading. I would join them in holding that the second respondent, Brambles Holdings Ltd., was negligent in failing to provide a safe system of work for the appellant, and am in general agreement with the reasons which they have given for reaching that conclusion. I need add nothing on that aspect of the appeal. I am, however, unable to share the view that the conduct of the appellant did not amount to contributory negligence. The appellant came out on to the roadway from behind the stationary garbage collection truck and had run for about 5 metres before he was struck by the first respondent's vehicle, which was travelling on its correct side of the road. It was dark and there was evidence that the headlights of the first respondent's vehicle could have been observed by a person in the position of the appellant from a distance of about 200 yards away. There was nothing else on the roadway that might have distracted the appellant's attention. The appellant apparently failed to see the first respondent's vehicle until he was almost in front of its headlights; had he seen it earlier, he could have stopped or slowed his pace and allowed it to pass in front of him. In my opinion the only possible conclusion is that the appellant failed to keep a proper look out when crossing the roadway. The fact that the appellant was carrying a humper, a garbage collection bin, on his right shoulder, does not, in my respectful opinion, affect this conclusion. The vehicle was coming from his left and the humper would not have interfered with his vision. In any case, if the humper had impeded his vision, there was all the more reason for him to take care before he crossed the road. Nor did the fact that the garbage collection vehicle had flashing lights designed to act as a warning to approaching vehicles mean that the appellant could reasonably refrain from keeping a proper look out. The case is not, in my opinion, one of the kind of which Commissioner of Railways v. Ruprecht [1] provides an example, where inadvertence or inattention which has resulted from familiarity and repetition, or preoccupation with matters in hand and the need for concentration upon those matters, does not amount to contributory negligence. The only matter upon which the appellant had to concentrate when running upon the road was whether traffic on the road itself presented any danger. The task which he was performing at that time — carrying the humper — was not so engrossing or difficult as to cause him to be either preoccupied or confused. He was not performing an operation which required constant repetition, since after each occasion when he ran across the road there would be a movement of the truck, and on each occasion the conditions were necessarily somewhat different. It does not seem right to say that familiarity with a particular roadway excuses a lack of care in crossing it, since the possible danger that calls for the exercise of care comes from traffic which will be unlikely to be uniform in its behaviour. In any case, the appellant had not developed a familiarity with crossing that particular roadway, since it was his first experience of that route. The omission of the appellant to look for approaching traffic before he crossed the road was, in my opinion, incompatible with the conduct of a prudent and reasonable man. 1. (1979) 142 C.L.R. 563. For these reasons I would allow the appeal of the appellant against the judgment given by the Full Court in favour of the second respondent and dismiss his appeal against the judgment given in favour of the first respondent. Mason, Wilson, Brennan and Dawson JJ. This appeal by the appellant (plaintiff) is brought from an order of the Full Court of the Supreme Court of Queensland allowing appeals by the respondents (defendants) from a judgment of Derrington J. against both respondents in favour of the appellant in the sum of $89,909.22. In lieu of this judgment the Full Court ordered that judgment be entered against the first respondent for $53,945.05. The appellant, a garbage collector, sued to recover damages for personal injuries which he sustained when he was hit by a motor vehicle as he was running across Albany Creek Road, Brisbane, carrying on his right shoulder what was described as a humper. The primary judge found negligence on the part of both the first respondent, the driver of the motor vehicle, and the second respondent ("Brambles"), the appellant's employer. He found that the appellant was not guilty of contributory negligence and apportioned responsibility equally between the respondents. The negligence of the first respondent, which is not in issue in this Court, consisted of driving too fast in the circumstances, thereby allowing himself too little opportunity to stop in time, and in failing to keep a proper look out. Brambles was found negligent in failing to take suitable precautions against the foreseeable risk of injury which arose from the practice of garbage collectors running across busy streets, a practice of which Brambles was aware or ought to have been aware. The Full Court set aside the judgment against Brambles on the ground that the appellant had failed to demonstrate that there was a reasonable and practicable safe system of work which would have avoided the injuries sustained by him. The Full Court also found contributory negligence on the part of the appellant and apportioned responsibility between the appellant and the first respondent on the basis that the appellant should recover 60 per cent of the damages proved by him. In this Court the appellant contests the Full Court's findings in relation to Brambles' liability and contributory negligence. The circumstances in which the appellant was injured are conveniently stated in the judgment of Matthews J., with whom Campbell C.J. and Connolly J. agreed. On 22 May 1980 at about 5.20 a.m. when it was still dark the plaintiff was running across Albany Creek Road carrying a humper. He ran from behind the garbage collection vehicle which was standing about one metre to the side of the roadway and facing the direction from which the first respondent was driving his vehicle. The truck had its headlights on and its hazard amber lights were flashing. It was facing east along Albany Creek Road. The plaintiff had run some five metres when he was struck by the first respondent's vehicle coming from his left. That vehicle was travelling on its correct side of the roadway at about 60-70 kilometres per hour and down an incline. The headlights of the vehicle were on and could have been observed by a person in the appellant's position before he crossed the roadway for a distance of approximately 200 metres. The road was normally a busy road but at that time of day carried hardly any traffic. The appellant was dressed in a cotton cap, pale-coloured shorts, T-shirt and was wearing shoes with white stripes. In addition to finding the first respondent to have been negligent in the respects already mentioned, the primary judge found that the first respondent had had adequate warning of the presence of the truck which he knew to be a garbage truck, and that he appreciated or ought to have appreciated the danger that one of the garbage collectors might run across the road. His Honour's reasons for finding Brambles liable are sufficiently expressed in the following passage from his judgment: It knew or should have known of the universal work habit of its employees to run on the job, and it must have known of the real possibility that, without directions, they might do their work in such a way that they frequently had to cross the road. It should have known that the plaintiff was new to the particular route on which he was then engaged, and that he may have been preoccupied to some extent in learning the work, or for some other cause. Because of the method of loading garbage into the truck, it is obvious that a workman servicing houses across the road from the parked vehicle would, from the point of view of a driver of a vehicle approaching from the opposite direction emerge from behind the parked vehicle. Assuming that he was running as usual, the danger is obvious if the workman was careless or inadvertent. (It does not require an expert knowledge to see the danger or the remedies and I should not and have not had to rely on the evidence of the traffic engineer called.) As the danger was obvious and serious in its consequences, there was a duty on the employer to take suitable precautions to prevent such an accident. The Full Court took the view that the appellant's running across the street was "a matter of his and the other men's choice: it enabled them to work a 30-hour week: and the extent and effect of inadvertence or negligence on its men's part was again something over which the employer had no control". Matthews J. added that it was doubtful whether any system which would have lengthened the working week would have found favour with the men and that the particular run took place at a time of day when the lightest of traffic was on the road. In these circumstances the Full Court concluded (a) that the burden rested with the appellant of showing that some protection was reasonable and that the injury resulted from the absence of it; and that (b) there was a need for evidence, presumably of an expert kind, of a practicable system of work which should have been adopted by Brambles. Although Matthews J. conceded that evidence was called to establish that it was possible for the garbage collection truck to be driven up one side of Albany Creek Road and down the other, a practice which would have eliminated any need to run across the road, his Honour stated that there was no evidence that, if applied throughout the run, it would have found favour with the men, or that it was reasonable or practicable having regard to the extra time it would take. There are several points which need to be made about this course of reasoning. Although running across the road was a means of doing the work which the appellant and other employees chose or preferred, it was nevertheless a system of work of which, as the primary judge found and the Full Court did not deny, Brambles was aware or ought to have been aware. And it was fraught with some degree of risk of injury to employees in some circumstances, especially when an employee was crossing Albany Creek Road when it was dark, as the appellant was doing on this occasion. The fact that the traffic was very light no doubt lessened the risk of injury, though it may have induced an employee to take less care for his own safety. However, there is simply no basis for saying that the risk of injury was fanciful (see Wyong Shire Council v. Shirt [2] ) or for brushing it aside because it was insignificant. It was a foreseeable and significant risk inherent in the way in which the garbage was collected in Albany Creek Road arising from the possibility of negligence on the part of motorists and negligence or inadvertence on the part of an employee. 1. (1980) 146 C.L.R. 40, at p. 47. In such a situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence: Wheare v. Clarke [3] ; Henwood v. Municipal Tramways Trust (S.A.) [4] . The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk. 1. (1937) 56 C.L.R. 715, at p. 723. 2. (1938) 60 C.L.R. 438, at p. 444. Many statements are to be found in the cases which give emphasis that in discharging his duty to take reasonable care to avoid injury to his employee an employer is bound to have regard to any risk of injury that may occur by reason of an employee's inadvertence, inattention or misjudgment in performing his allotted task. Thus, in Sungravure Pty. Ltd. v. Meani [5] , Windeyer J. said: "A safe system of work is one that is safe for an average workman taking reasonable care for his own safety." But his Honour immediately followed that comment with the observation: "It is not a system which is safe only for persons of superior skill whose attention never wanders." More recently, in Ferraloro v. Preston Timber Pty. Ltd. [6] , the Court in its unanimous judgment said: The employer's duty, to whomsoever it falls; to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task. See also Da Costa v. Cockburn Salvage and Trading Pty. Ltd. [7] ; Turner v. South Australia [8] . 1. (1964) 110 C.L.R. 24, at p. 36. 2. (1982) 56 A.L.J.R. 872, at p. 873. 3. (1970) 124 C.L.R. 192, at p. 218. 4. (1982) 56 A.L.J.R. 839, at p. 842. But these observations should not be regarded as exhaustive statements of the matters to which the employer must have regard. The qualified nature of some of the statements may be explained by the circumstances that contributory negligence was a defence at common law. But the occasion for the qualification disappeared when contributory negligence ceased to be a defence and became a matter of apportionment. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his duties then this is a factor which the employer must take into account. That this is so was implicitly acknowledged by Taylor J. in Smith v. Broken Hill Pty. Co. Ltd. [9] , when he referred to an employer contemplating "the possibility of thoughtlessness or inadvertence — or to use what is, perhaps, a stronger word, carelessness". 1. (1957) 97 C.L.R. 337, at p. 343. Of course in the present case the foreseeable risk of injury arose not merely from inadvertence or carelessness on the part of an employee, but more particularly from the possibility of negligence on the part of a motorist. It was the chosen method of performing the work that exposed the appellant to this risk of injury. The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed. (1983), pp. 480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands. The circumstance that the system of work in Albany Creek Road was not prescribed by the management of Brambles but seems to have evolved as a matter of choice by the men carrying out the work does not absolve the employer from what otherwise would amount to a breach of duty. It means either that Brambles failed to establish a system of work or that it was content to acquiesce in the system of work adopted by the employees. It is not in contest that, even in the absence of expert evidence, the driving of the truck up one side of the road and down the other was a safe alternative way of collecting the garbage in Albany Creek Road. However, it is argued that the appellant failed to establish that it was a practicable alternative, the onus being on it to do so. We disagree. The evidence of Mr. Steger, the driver of the truck on the morning in question, whose evidence was uncontradicted, makes the point. He gave this evidence: Dealing with that run, would it have been difficult to cross that street merely by stopping the vehicle in a position just about opposite where you were where there was room on the opposite side of the street? On the opposite side of the road you mean? Yes? It's possible, we have never done it that way. When you came to do the run did anybody instruct you how to do it? No. When you started? I learned through other ones that had been doing it. Did any supervisor give you any instructions on how to do the run? No. You just followed suit with the person who showed you? Yes. Did it ever occur to you to cross the street and do them on the other side? We have since, we go down one side and come up the other side for safety reasons. Because it is a busy street? Yes. Would it have been better to do it that way in this street? As the situation occurred, I would say so. Would it have added much time to the task or would it have just been of no consequence, or what? The way we did it it was easier at the time, you have to go back down again. We have a set run to do, we go down Malvern Street, you go down Letch's Road and you have to leave it to a later hour in the day. If someone said to you, "Look, instead of running across the road, stop on that side of the road, pick up all and drive across to the left-hand side and do that side." It is possible. Would you have complained — would you have carried out the direction? Yes, if someone directed me, yes. It is said, nevertheless, that the alternative system was not practicable because the employees would have refused to accept it or to have carried it out, notwithstanding that its object and effect was to protect them from injury. We would reject the suggestion that the appellant bore the onus of proving specifically that the alternative system was acceptable to the employees and that they would have carried it into effect. In our view, once the appellant was able to point to an alternative and safe system which was practicable in other respects and would have obviated the relevant risk of injury, it was for Brambles to establish that in the circumstances of the case it would have been unable to enforce compliance with the suggested system because its implementation would have been resisted by employees on the ground that the increase in the time taken to do the work would have damaged the men's prospects of taking a second job. In fact, Brambles called no evidence on this issue. The only evidence on which the suggestion that the men would not have accepted the alternative system is based is that of the appellant who spoke of working a 30-hour week at the most and of undertaking other employment concurrently, a practice which seems to have been favoured by other employees in the industry. Although the appellant's evidence supported the view that the men were anxious to finish their work as quickly as possible, it fell far short of providing an acceptable foundation for an inference that they would resist the introduction of the alternative system of work. Indeed, Mr. Steger's evidence indicates that it was introduced in Albany Creek Road at least, after the accident. For these reasons we would allow the appellant's appeal to the extent to which it relates to the issue of Brambles' liability. The issue of contributory negligence presents a little more difficulty, as the primary judge acknowledged. However, we are inclined to think that the difference between the approach adopted by the Full Court and that adopted by the primary judge largely reflected the difference in attitude to Brambles' responsibility in providing a safe system of work. The issue of contributory negligence has now to be approached on the footing that Brambles failed to discharge its obligation to provide a safe system, that is, to take appropriate precautions against the risk of injury arising from the motorist's negligence and the employee's failure to observe an oncoming vehicle as he carried out his allotted task. The question is whether that failure should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact. As Windeyer J. observed in Sungravure [10] , when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to "inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions". It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man". His Honour went on to reject the suggestion that the approach applicable in the case of injury sustained in a factory was inapplicable to activities elsewhere, specifically referring to activities upon a highway. 1. (1964) 110 C.L.R., at p. 37. In concluding that the appellant's conduct amounted to mere inadvertence, inattention or misjudgment, the following factors have impressed us as being significant: (a) the prevailing condition of poor light unquestionably diminished his ability to pick out the vehicle and locate its speed and position accurately; (b) performance of his task necessarily involved preoccupation with the matter in hand; (c) at the relevant time he was carrying on his right shoulder a humper whose capacity ranged between four and eight household garbage deposits; (d) the carrying of this humper on his right shoulder when running across the road would very considerably restrict his capacity to observe an oncoming vehicle and assess its speed accurately; and (e) in order to retain his employment as a garbage collector he was expected to run across the road and keep up with the truck as it moved forward. In these circumstances the primary judge was correct in concluding that the appellant was not guilty of contributory negligence. In the result we would allow the appeal, set aside the order of the Full Court and restore the orders made by the primary judge.