New South Wales Court of Appeal CITATION : Cook on Gas Products Pty Ltd v Kelly [1999] NSWCA 270 FILE NUMBER(S) : CA 41055/98 HEARING DATE(S) : 26 July 1999 JUDGMENT DATE : 26 July 1999 PARTIES : Cook on Gas Products Pty Ltd v Diane Kelly JUDGMENT OF : Mason P at 1; Stein JA at 1; Davies AJA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 7202/97 LOWER COURT JUDICIAL OFFICER : His Honour Judge Garling COUNSEL : Appellant - P. Webb QC / R. Royle Respondent - J. Waters SOLICITORS : Appellant - Steward Cuddy & Mockler Respondent - Marsdens CATCHWORDS : Use or operation of a motor vehicle; Duty of care; Negligence; Liability Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Bennett v Minister of Commmunity Welfare (1992) 176 CLR 408 Betts v Whittingslowe (1945) 71 CLR 637 CASES CITED: Chappell v Hart (1998) 72 ALJR 1344; [1998] HCA 55 Naxakis v Western General Hospital [1999] HCA 22 Sutherland Shire Council v Heyman (1985) 157 CLR 424 The Wagon Mound (No 2) [1967] 1 AC 617 Wyong Shire Council v Shirt (1980) 146 CLR 40 DECISION : Leave to appeal granted; Appeal dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41055/98 DC 105/95 MASON P STEIN JA DAVIES AJA Monday, 26 July 1999 COOK ON GAS PRODUCTS PTY LTD v KELLY JUDGMENT 1 THE COURT: This is an application for leave to appeal from the judgment of a judge of the District Court of New South Wales in which his Honour found that injuries suffered by the opponent, Diane Kelly, had resulted from an accident involving a motor vehicle for the operation of which the claimant, Cook on Gas Products Pty Ltd, was responsible. The trial Judge found that the opponent's own negligence contributed to the accident to the extent of 50%. 2 The claimant is one of a group of companies which trades under the name "Barbecues Galore". The opponent was not employed by the claimant but by a related company. She was the national credit manager of the Barbecue Galore business and had the task of overseeing credit facilities and collections throughout all branches in Australia. The plaintiff worked at the main premises of Barbecues Galore in Auburn. There were a number of buildings, including the main warehouse, situated around a yard. The yard was used for the storage of containers and for the parking of trucks. There was an area where trucks could be loaded. 3 On 21 October 1992, the opponent crossed the yard diagonally from a doorway or entry in one corner towards a doorway or entry in the diagonally opposite corner. There was a pedestrian walkway marked around the perimeter of the yard but it may not have been well marked and it covered areas where trucks might be parked and where there were car parking spaces. The opponent gave evidence that it was common for employees to walk across the yard as she did. The trial Judge found that "employees would cross the yard in all places and at all angles". As the opponent crossed the yard on the day in question, which was dull and overcast, a wind was blowing. When it commenced to rain she increased her gait. Presumably, the wind and the rain caused her to bend over a little and to hold her head down. Without her seeing the object, her head hit a platform or tailgate on the back of the claimant's truck which had been lowered. The bridge of her nose was broken and she lost consciousness. The truck in question was a large, covered van. The platform or tailgate at the rear of the truck had been lowered to a level with the floor of the truck and protruded out some eight feet six inches from the back of the truck. The platform was in a horizontal position. At the time of the accident, the truck was unattended and unguarded. 4 When the tailgate was lowered, two plastic yellow and black flags, which were attached at their top edge, fell downwards. However, the photographs in evidence do not suggest that they would have provided much of a warning. In the photographs the plastic flags did not fall vertically but fell on an angle away from the rear of the tailgate. They were unlikely to draw attention to the edges of the tailgate. 5 The trial Judge concluded that it was not negligent to have the tailgate down as a loading operation was in progress; but he held that the claimant was negligent in that there were steps that reasonably ought to have been taken to prevent the accident such as to put down warnings such as flags or cones to keep pedestrians clear. To have the truck attended would have been another. 6 It was submitted on behalf of the claimant that the platform or tailgate had presented no real risk and that what occurred was a simple accident. It was submitted that, if there was any negligence, the negligence was entirely that of the opponent who failed to watch where she was going. However, a platform projecting behind a truck does present a risk to pedestrians who may expect the space behind the truck to be clear. The truck was not an inactive element in the accident. The tailgate, at least, protruded into the course which the opponent took when crossing the yard. That created a risk, similar to that which would be created if, in a car park, the driver of a truck or utility let down a rear door so that it protruded into the space where pedestrians passed. The risk may have been a small one but it was reasonably foreseeable and was one in respect of which simple precautions should have been taken. 7 The principle to be applied is that laid down by Lord Atkin when delivering the opinion of the Judicial Committee in "The Wagon Mound" (No 2) [1967] 1 AC 617 where his Lordship said at 642-3: " In their Lordships' judgment Bolton v Stone [1951] AC 850 did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it. " That principle was applied by the High Court of Australia in Wyong Shire Council v Shirt (1980) 146 CLR 40. At 47-8 Mason J said: " A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [1951] AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors. " 8 In our opinion, the trial Judge was correct in concluding that the tailgate or platform when lowered constituted a real risk to the pedestrians who passed to and fro across the yard. Pedestrians may not expect platforms to be protruding behind trucks and may be caught by surprise. The trial Judge was correct in concluding that there were simple means such as the provision of a barrier or cones which, if put into place, would have kept pedestrians away from the rear of the truck. The trial Judge was correct in concluding that a reasonable person, turning his or her mind to the risk, would have taken such precautions. Perhaps the most important element of the negligence was that the truck was left with its tailgate down, unattended and unguarded, when there was no actual activity of loading being undertaken which might have drawn attention to the tailgate. 9 It was submitted that the trial Judge treated the matter as if the claim was one of a breach of an occupier's duty to take care in relation to those on its land or one in which there was a breach of an employer's duty to take reasonable care for the safety of its employees. In our opinion, the trial Judge did not approach the matter in that way. Elements entered the case which might seem to impact upon occupier's liability or employer's liability. In the course of the trial, the claimant put the point both in submissions and in cross-examination that the opponent should have walked along the marked walkway rather than diagonally across the yard and that the employees had been instructed to do so. The trial Judge necessarily took into account the fact that the marked walkway was provided, that the staff were asked to walk on the marked walkway and that the opponent was not complying at the time of her accident. Nevertheless, in making his findings of liability, the trial Judge did so in accordance with the pleadings and the particulars of negligence which were before him. 10 It was finally put that the plaintiff failed to establish that, even if there had been warnings as indicated by the trial Judge, those warnings would have been effective to avert the accident. It was submitted that, if barriers or cones had been erected, the plaintiff would not have seen them. However, the trial Judge considered that if a warning such as cones had been used, the plaintiff would have been alerted. This view was well founded. The plaintiff was not at the time acting in a rash manner. She was simply walking across the yard, albeit with her head down. 11 We should add, moreover, that in Betts v Whittingslowe (1945) 71 CLR 637 at 649, Dixon J referred to the principle that: " [T]he breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of sufficient reason to the contrary , that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty. " (emphasis added) 12 That principle is not confined to breach of statutory duty. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 467; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-21; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 315-6; Chappel v Hart (1998) 72 ALJR 1344; [1998] HCA 55 at 10 per Gaudron J, 34(6) per McHugh J, 68 per Gummow J, 93(8) per Kirby J; Naxakis v Western General Hospital [1999] HCA 22 at 31, 76, 127. The inference of causation does not have to be drawn, but it may. In our view the trial Judge was entitled to draw it on the facts of this case. 13 We would grant leave to appeal and would order that the appeal be dismissed with costs. *********** 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.