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.
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