New South Wales Court of Appeal CITATION : Kelly's (Coleambally) Pty Ltd v Malone [2001] NSWCA 146 FILE NUMBER(S) : CA 40149/00 HEARING DATE(S) : 21/05/01 JUDGMENT DATE : 21 May 2001 PARTIES : Kelly's (Coleambally) Pty Ltd v Kaylene Michelle Malone JUDGMENT OF : Mason P at 28; Stein JA at 29; Ipp AJA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT 183/98 FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER : COUNSEL : J D Hislop QC/G Seib (Appellant) G R Petty SC/A J Black (Respondent) SOLICITORS : McCulloch & Buggy (Appellant) Commins Hendriks (Respondent) CATCHWORDS : TORT - Personal Injury - appeal against liability - respondent injured when she tripped over a dog whilst carrying a box in the course of her employment with the appellant supermarket - failure to warn or instruct of dangers - failure to tether/chain dog - lack of evidence - the dog was known to wander in the area and respondent was aware of this - appellant entitled to have regard to the fact that prudent employees take reasonable care for their own safety - lack of evidence that carrying box obscured her vison to the extent that she could not see the dog move - negligence not established - appeal upheld. ND CASES CITED: Liftronic Pty Limitedv Unver (2001) HCA 24 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 DECISION : Appeal upheld; Verdict set aside; Verdict be entered in favour of the appellant; Respondent's claim be dismissed with costs; Respondent to receive a Suitors Fund certificate if otherwise entitled; Respondent to repay the money that has been paid to the appellant, with interest at Court judgment rates from the date of payment to the date of repayment, the appellant to have liberty to apply. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40149/00 DC 183/98 MASON P STEIN JA IPP AJA Monday 21 May 2001 KELLY'S (COLEAMBALLY) PTY LTD v KAYLENE MICHELLE MALONE JUDGMENT 1 IPP AJA: In 1980 the respondent was employed by the appellant in its supermarket business in the main street in Coleambally, a country town in this State. She worked at the checkout, packed shelves, and sometimes helped customers carry the groceries that they had purchased to their cars. 2 The supermarket was described as being in the middle of the Coleambally shops. Next door was a pharmacy and the owner of the pharmacy kept a labrador type dog. The dog was accustomed to lie between the supermarket and the pharmacy, but from time to time would wander off, as dogs are wont to do. 3 One afternoon in late 1980 the respondent served a woman customer and filled a fruit box with groceries. The box was approximately eight to nine inches in height, two feet in length and approximately sixteen inches in width. As the respondent walked out the door of the supermarket she turned her head and saw the dog lying close to the wall of the supermarket. It was about three to five metres away. She turned and continued walking in a line which would have taken her across the position the dog was in, if he had not moved. The line in which she was walking was about five feet away from the wall of the pharmacy, against which the dog was lying. The dog moved from the position in which he was in and crossed the respondent's line of travel. She fell over the dog and injured her wrist. Complications arose as to her injuries, and she sustained a severe disability. 4 The respondent sued the appellant on various bases, but the only cause of action relevant to this appeal is that her injuries were caused by the negligence of the appellant. The trial Judge, Judge Puckeridge, held that the appellant had been negligent, and that its negligence had caused the respondent loss. He awarded the respondent damages of $635,056. 5 The appellant appeals against the decision on liability, as well as that relating to the quantum of damages. 6 Judge Puckeridge held that the appellant was under a non-delegable duty to take reasonable care for its employees, including the respondent. That proposition of course must be accepted. His Honour found that the appellant had breached that duty of care in the following respects: (a) By not warning the respondent of the danger that the dog might wander around the area of the supermarket entrance. (b) By not warning the respondent not to carry out of the supermarket a box of the customer's purchases in circumstances where her forward vision might be affected or reduced, "and she might fall over the dog if it happened to be walking in the area where she was carrying such a box of purchases to a customer's car". (c) By not instructing the respondent to carry the customer's purchases in bags or baskets, so that her forward vision would not be affected or reduced. (d) By not requiring the owner of the dog, namely, the owner of the pharmacy, "to have the dog chained or tethered so that he could not move or wander into an area where he could cause a risk of injury to employees". 7 I deal firstly with the first ground, namely that the appellant was negligent in not warning the respondent of the danger of the dog wandering around the area of the supermarket entrance. 8 The first point to be made, and a point of substance, is that there was no evidence that the appellant failed to warn the respondent, as alleged. No witness was called on behalf of the appellant in this respect, and the respondent herself gave no relevant testimony in this regard. The onus of proof was on the respondent to prove the absence of warning. As no evidence was given on this issue by the respondent there was nothing which called on the appellant to lead evidence in respect of those matters. No inference could be drawn against the appellant because it did not do so. 9 That alone is enough to dispose of the finding by his Honour that the appellant was negligent in failing to warn of the danger that the dog might wander around. However, the fact is the respondent well knew that the dog was accustomed to lie in front of the pharmacy, and she knew that the dog from time to time wandered about. She was eighteen years old at the time, had grown up and had been educated in the country and would have been familiar with the behaviour of dogs. It was not unusual for dogs to frequent the main street where the supermarket and pharmacy were situated. In the circumstances I accept the submission made on behalf of the appellant that any such warning could have told the respondent nothing more than she already knew. 10 The second and third grounds which I have mentioned, relate to a warning and instructions to the respondent in regard to how she was to carry the purchases out of the supermarket. There again, there was no evidence that the appellant failed to instruct the respondent, as alleged. Everything that I have said on this issue in regard to the first ground of warning applies equally to the second and third grounds. 11 On that basis alone I consider that his Honour erred in finding, as he did, that the appellant was negligent in failing to warn or instruct the respondent on these matters. 12 In addition to the fatal absence of evidence on these grounds there are problems of causation. 13 The box was relatively small, and the respondent's vision would have been obstructed of course vertically downwards, and marginally forward. She noticed the dog when she came out of the supermarket, as I have mentioned, and she must have moved at least three to five metres before falling over the dog. It is not clear from the evidence exactly where she fell, and in exactly which direction the dog moved from where it was lying to where it came in front of her, so that she fell over it. 14 No explanation was given at the trial as to why the respondent did not see the dog earlier. She did not testify that the reason for this was that the box obstructed her vision. As she came out of the supermarket she was conversing with the customer, whose goods she was carrying, and she was asking the customer where she had parked her car. She was told that the car was on the far side of the pharmacy, near a newsagent. The inference that is to be derived from the evidence in this respect is that the respondent took her eyes off the dog and looked ahead where she believed the customer's car to be parked. 15 There appears to be no reason why the respondent did not see the dog from the time that it left the position where it was until immediately before she fell over it, other than the fact that she was not looking in the direction of the dog but was looking ahead, either along the path or towards the car owned by the customer. 16 On that basis it seems to me that the presence of the box had nothing to do with the accident. The accident was caused, in effect, by the dog moving forward and the respondent not looking, and there is no evidence that would suggest that had she not carried a box the accident would not have happened. 17 On that basis the causative link between the carrying of the box and the fall was simply not established. 18 The fourth ground is that the appellant should have required the owner of the dog to remove it from the vicinity. There was no basis suggested, however, on which the appellant could have required the owner to remove the dog. It was submitted on the respondent's behalf that the appellant could have exhorted the owner of the dog to remove it, but there was no evidence that any such exhortations would have had any effect. In my view this ground is entirely without merit. 19 Finally, it was submitted on the respondent's behalf that that Judge Puckeridge should have found the appellant was negligent in failing to provide a safe system of work. The basis of this submission was that the appellant should have provided some alternative means whereby the respondent could have transported the customer's goods from the supermarket to the customer's car. 20 In advancing this submission Mr Petty SC, for the respondent, referred to a concession made on the appellant's behalf at trial, to the effect that there was a foreseeable risk that, if employees carried boxes which reduced their forward vision, they could trip or fall over the dog. It was submitted that, once this concession was made and accepted, it followed that a reasonable means of avoiding this foreseeable risk was to provide alternative means of transporting the goods, as I have indicated. Such alternative means would have been providing trolleys or, perhaps, baskets, or requiring the employees to carry bags, but not boxes. 21 Again, in my opinion, there are a number of answers to this submission which defeat the respondent's claim. 22 The contention as to the failure to provide a safe system of work was particularised in the statement of claim, but appeared to receive no attention whatever in the course of the trial. Mr Petty, who said everything that could possibly have been said on behalf of the respondent, was reduced to relying upon evidence as to the nature of the appellant's duties, and as to the manner in which the accident occurred, in arguing that an inference should be drawn that there were no trolleys available and no alternative means of moving the goods. In the light of the way in which the matter was pleaded, however, I am not persuaded that the evidence to which he referred is adequate to justify a finding that alternative means were not available. 23 Secondly, the mere fact that there was a foreseeable risk does not of its own necessarily mean that the appellant was obliged to take steps to avoid that risk. 24 The risk in this case was obvious and must have been well known to the respondent. I have drawn attention to the fact that she knew that the dog was regularly to be found in the position where it was, and was known to wander about. The prospect of falling over a dog, in a country town, in a country street, where dogs moved about, was not unusual, or unexpected. It was one of the facets of country life with which ordinary citizens are required to live and accommodate. 25 In my view, the appellant was entitled to regard the risk of harm caused by the dog wandering about as being so obvious as to entitle it to rely on its employees own prudence to take adequate care for her own safety: Liftronic Pty Limited v Unver (2001) HCA 24, Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 455, 456, 478 and 489. 26 I should mention that Mr Petty, in resisting this proposition, drew attention to two matters, namely, the relatively youthful age of the respondent and the prospect that when, carrying goods out of the store, the respondent might be talking to the customer in question, and not looking out for the dog. While there is something to be said for the points so made, I am not persuaded that they are sufficient to detract from the fact that the risk of the dog moving about was well known and the risk of injury was easy to avoid. 27 In all the circumstances I conclude that negligence was not established, and the appeal must succeed. I would uphold the appeal, set aside the verdict, order that a verdict be entered in favour of the appellant and order that the respondent's claim be dismissed with costs. I would order that the respondent pay the costs of the appeal, the respondent to receive a Suitors Fund certificate if otherwise entitled. Additionally, there should be an order that the respondent repay the money that has been paid to the appellant, with interest at Court judgment rates from the date of payment to the date of repayment, and the appellant to have liberty to apply. 28 MASON P: I agree. 29 STEIN JA: I agree. ********** 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.