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[2005] HCA 14
appellant. Appeal allowed with costs. The Full Court's orders were set aside and replaced with an order dismissing the respondent's appeal, with costs. The District Court judgment for the appellant therefore...
The University was responsible for providing a safe way to load the truck and suitable equipment. The platform could descend without warning, and the job involved repeated movement in a shrinking work area. The High Court considered the risk of the employee stepping backwards while mistakenly believing the platform was still in place foreseeable and readily preventable. Although the employee did not look behind him, the Court found that the University had not proved contributory negligence in the circumstances.
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2,351 words · generated 05/10/2026
Brett George Jerzy Czatyrko worked as a general assistant for Edith Cowan University. His duties included moving furniture and distributing mail. On 13 January 1997, he and another employee, Mr Fendick, were loading boxes of books and documents onto a truck for transport to another campus ([2]-[4]).
4 cited instruments linked from this judgment.
The truck had an enclosed tray and an attached hydraulic platform. The platform could be raised and lowered by a switch. It made a loud noise while rising and a clanging sound when it reached the level of the truck tray, but it made no sound while descending ([3]). The two employees used trolleys to bring boxes to the truck and used the platform during loading.
After a supervisor conveyed a message to work more quickly, Mr Fendick operated the platform while Mr Czatyrko reorganised boxes on the truck. As the truck became nearly full, Mr Fendick lowered the platform without telling Mr Czatyrko. While the platform was still descending, Mr Czatyrko stepped backwards, believing it remained raised, and fell ([4]).
Mr Czatyrko sued in the District Court, alleging negligence in failing to provide safe equipment and a safe system of work. The pleaded concerns included no warning device for the descending platform, pressure to work quickly, and no system requiring the platform operator to tell other employees when it was moving ([5]). The High Court records that the statutory claims added nothing material to the common law case as argued before it ([5]).
The trial judge found the University responsible and awarded $379,402. The Full Court reversed that result. It considered that an employee who paid attention to where he was putting his feet would have been safe, and it would have attributed 70 per cent of responsibility to Mr Czatyrko if the University had been negligent ([10]-[11]). The High Court allowed Mr Czatyrko's appeal, set aside the Full Court orders and ordered that the University's appeal be dismissed with costs. That left the District Court judgment in place.
The High Court began by emphasising the limited reach of its decision: the appeal raised no question of general principle and depended on its own facts ([1]). That caution matters when using the judgment. It is a close application of established employer-safety principles to a particular task, platform and working arrangement, rather than a universal rule about every moving platform or every failure to look before stepping.
The central question was not simply whether the University should have warned Mr Czatyrko that stepping backwards could be dangerous. The High Court framed the problem as a failure to devise and implement a safe system of work, coupled with a failure to provide suitable equipment ([13]-[16]).
The Court accepted the established propositions advanced for the appellant: an employer owes a non-delegable duty to take reasonable care to avoid exposing employees to unnecessary risks; where a real risk of injury exists, reasonable care may require a method of operation that eliminates the risk or adequate safeguards; and the employer must take account of possible thoughtlessness, inadvertence or carelessness, particularly in repetitive work ([12]). The Court said reliance on those principles was well founded ([13]).
Applying them, the High Court identified the risk with precision. Mr Czatyrko might step backwards onto the platform believing it was raised, without checking whether it was still there ([13]). That risk was foreseeable in the actual work setting. The platform moved during loading; it descended silently; the truck became more crowded as work progressed; and the employee was rearranging boxes while the other worker operated the control ([3]-[4], [13], [15]). The task required movement on and off a moveable platform in a space that diminished as boxes accumulated ([15]).
The Court considered that simple measures could have prevented or reduced the risk. It identified fitting a warning beeper or requiring the person lowering the platform to give an oral warning ([13]). It also said the University should have had a system designed to prevent a person stepping onto or off the moving platform without first checking behind ([15]). The judgment therefore treats warning arrangements as part of a broader system-of-work question, rather than as an isolated warning duty.
The High Court also treated the equipment itself as relevant. It said an employer must provide suitable plant and equipment so employees can work safely, and that the simplicity and low cost of a warning device required its installation in this case ([16]). The device's practical availability was part of the Court's assessment of what reasonable care required on these facts. The Court did not establish that every lifting platform must have a beeper; its conclusion was tied to the particular risk, the available device and its simplicity and inexpensiveness ([1], [16]).
A further issue was the Full Court's reliance on the idea that Mr Czatyrko should have looked where he was going and that the risk was obvious. The High Court said that the employer's duty was not measured by the standard applicable to an occupier deciding whether to warn members of the public about obvious risks ([14]). The employee's claim was not that he needed to be told that falling could cause injury. Rather, the complaint was that the employer's failure to adopt a safe system created the relevant risk in the work process ([14]-[15]).
On contributory negligence, the High Court accepted that Mr Czatyrko omitted a simple precaution by not checking whether the platform was raised, and that the omission contributed to the injury ([18]). But that was not the end of the issue. The University bore the onus of proving contributory negligence. The Court took account of the absence of any directions or warnings about use of the platform, the pressure to finish promptly, and the repetitive nature of the work ([18]). It concluded that these circumstances presented a “fertile field for inadvertence” and that his conduct was “mere inadvertence, inattention or misjudgment”, not conduct warranting a finding of contributory negligence ([18]).
The judgment does not describe itself as changing a general legal principle. To the contrary, it says expressly that the appeal raised no question of general principle and depended on its own facts ([1]). The Court relied on existing employer-duty principles, including the duty to avoid exposing employees to unnecessary risks and the need to account for inadvertence in repetitive work ([12]).
The judgment's contribution is its application of those principles to a specific workplace arrangement. It explains why the relevant question was whether the University had devised a safe system for loading the truck using a silent-descending platform, rather than whether it had warned of an obvious risk in the abstract ([13]-[15]). In that sense, the decision clarifies the characterisation of the alleged failure: the Court considered the missing warning mechanism and absent communication procedure aspects of an unsafe system and unsuitable equipment ([13], [16]).
The judgment also shows that an employee's failure to take care for personal safety does not automatically establish contributory negligence. The employee's omission was acknowledged, but the result depended on the context and the respondent's burden of proof. The Court considered the absence of instructions, the work pressure and repetitive nature of the task in concluding that the conduct was mere inadvertence ([18]).
On the materials provided, it is not possible to give a reliable account of the law before or after this case beyond those points. The judgment cites prior authorities for established propositions, but it does not provide a survey of later law or claim to set out a new general test. It is therefore more accurate to treat it as a fact-sensitive application and illustration of existing principles than as a broad alteration of the law.
At [1], the Court says the appeal “raises no question of general principle and depends on its own facts.” In plain English, the Court is limiting the decision. Its reasoning should be read in light of the particular task, platform, silence during descent, work pressure and lack of a warning system.
At [13], the Court states that the risk of Mr Czatyrko stepping backwards while believing the platform was raised “was plainly foreseeable.” This identifies the danger in practical terms. The Court did not focus only on the abstract possibility of a fall. It considered the sequence of events that could lead to one during the task.
Also at [13], the Court says the risk could have been “readily obviated” by simple measures, including a beeper or an oral warning system. In plain English, the available precautions were straightforward enough that the University's failure to adopt such or similar measures supported a finding of breach.
At [14], the Court distinguishes the case from an occupier's obligation to warn the public about obvious risks. Its statement that the case concerned “creating a risk by failing to adopt a safe system of work” means the employer's safety obligations had to be assessed by looking at the work method and how the platform was operated, not simply by asking whether the employee knew that falling could cause harm.
At [15], the Court identifies features the system should have accounted for: employees had to move backwards and forwards on and from a moveable platform, and the task was repetitive and performed in diminishing space. The passage translates into a practical point: a system of work should be assessed against the conditions in which the job is actually carried out.
At [18], the Court says the work presented a “fertile field for inadvertence.” In plain English, the repetitive task and pressure to finish made a lapse of attention a foreseeable human possibility. The Court treated that context as relevant both to the employer's safety arrangements and to whether the employee's own conduct amounted to contributory negligence.
The decision is most relevant to situations resembling its concrete features: an employee performs a work task involving a moveable platform; the platform can move without an audible signal; workers are required to move on or off it while carrying out the task; the work area changes or diminishes as the task progresses; and there is no system to communicate movement or otherwise guard against a foreseeable lapse of attention ([3]-[4], [13]-[16]).
It is also relevant where a safety measure appears simple and inexpensive, and the employer has not put it in place. The High Court relied on the availability and low cost of a warning device when evaluating the equipment issue ([6], [16]). That does not establish that cost alone decides the question. The Court considered it alongside the specific risk and the work arrangement.
The judgment may also be pertinent where an employer argues that an employee should simply have watched where they were going. It demonstrates that the employee's conduct does not displace the need to examine whether the employer's system anticipated foreseeable inadvertence. The Court considered the employee's failure to look, but assessed it alongside the lack of directions or warnings, pressure to complete the work and the repetitive nature of the task ([18]).
The decision is less directly informative where the material facts differ. For example, the judgment does not decide the result for every platform, every workplace warning system or every incident involving an employee stepping backwards. Its express statement that the appeal depended on its own facts counsels against treating the result as automatic in other settings ([1]). Differences in the equipment, task, warning arrangements, directions, working conditions and evidence about practicable precautions may matter.
The judgment text supplied here contains no decisions after 6 April 2005 and provides no account of how later courts have applied, followed, distinguished or limited Czatyrko. Accordingly, later treatment cannot be stated on the basis of this source alone.
The judgment does identify the authorities it relied on for the general employer-duty propositions: Hamilton v Nuroof (WA) Pty Ltd, Smith v The Broken Hill Pty Co Ltd, Da Costa v Cockburn Salvage & Trading Pty Ltd and Woods v Multi-Sport Holdings Pty Ltd ([12]). It also cites Bankstown Foundry Pty Ltd v Braistina when describing the employee's conduct as “mere inadvertence, inattention or misjudgment” ([18]). These are authorities cited by the High Court in this judgment, not evidence of later treatment of Czatyrko.
The judgment recounts the Full Court's discussion of Romeo v Conservation Commission (NT) and Woods in describing the proceedings below ([11]). But the High Court's own reasoning distinguishes the occupier-warning analysis from the employer's safe-system duty ([14]). The supplied text does not provide subsequent judicial consideration of that distinction.
The Court's express description of the case as fact-specific leaves open how its reasoning applies where the features differ ([1]). The judgment does not specify a general threshold for when a warning device is required, beyond its conclusion that a simple and inexpensive device was required in the circumstances before it ([16]). Nor does it set out a universal rule that a verbal warning must be given whenever a platform moves. It identifies an oral-warning system as one measure that could have addressed this particular risk ([13]).
The judgment also does not decide how contributory negligence should be assessed in every workplace accident involving a failure to look. Its conclusion was grounded in the evidence and circumstances described at [18], including the absence of directions or warnings, pressure to finish, repetitive work and the employer's burden of proof. How different instructions, training, work demands or employee conduct would affect the analysis is not answered in the text.
Finally, the reasons do not address the statutory causes of action in detail. The case was argued on the basis that those claims added nothing material to the common law case, and argument in the High Court focused on common law negligence ([5]). The judgment therefore should not be read as resolving the scope or effect of the Western Australian statutory claims.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, HAYNE, CALLINAN AND HEYDON JJ
BRETT GEORGE JERZY CZATYRKO APPELLANT
AND
EDITH COWAN UNIVERSITY RESPONDENT
Czatyrko v Edith Cowan University [2005] HCA 14
6 April 2005
P44/2004
ORDER
1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Supreme Court of Western Australia made on 9 December 2002 and in their place order that the appeal is dismissed with costs.
On appeal from the Supreme Court of Western Australia
Representation:
B L Nugawela with J J Stribling (instructed by Vertannes Georgiou)
B W Walker SC with J R Clyne for the respondent (instructed by Phillips Fox)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Czatyrko v Edith Cowan University
Negligence – Duty of care – Employer and employee – Safe system of work – Suitable plant and equipment – Employee injured when attempting to stand on moveable platform while loading a truck – Platform not in position – Employee stepped backwards onto platform in belief it was raised – Absence of warning beeper – Absence of oral warning – Whether employer failed to devise and implement a safe system of work – Whether employer failed to provide suitable plant and equipment.
Negligence – Contributory negligence – Employee injured when attempting to stand on moveable platform while loading a truck – Platform not in position – Employee stepped backwards onto platform in belief it was raised – Whether employee should have looked behind him before stepping backwards.
Facts
The appellant began to work for the respondent as a general assistant in February 1990. His duties included the shifting of furniture and the distribution of mail.
On 13 January 1997, the appellant and another employee, Mr Fendick, were required to load 30 or so boxes on to a truck for removal to another campus. The boxes contained books and documents. The truck was parked on a grassy area outside a building. It was fitted with an enclosed tray, to which was attached an unenclosed hydraulic lifting platform. The platform was about 1.5m deep and its width was approximately the same as that of the truck. The platform was powered by the battery in the truck and was operated by a switch. It emitted a loud noise when it was being raised and a "clanging" sound when it "hit the top" (to bring it level with the tray of the truck). No sound was emitted however when it was being lowered.
The appellant and Mr Fendick each had a trolley. Together, they collected boxes and loaded them on to the truck, both using the platform. A storeman gave them a message that their supervisor wanted them to get on with the job more quickly. Mr Fendick suggested to the appellant that the appellant should work on the truck while Mr Fendick brought the remaining boxes to him. The appellant agreed. Mr Fendick, who was operating the platform control, then collected some boxes on his trolley, took them up to the appellant on the platform, unloaded them, and went down again on the platform to collect more boxes. The appellant remained on the truck re-organizing the boxes that were already loaded in order to make the best use of the available space, which was almost three-quarters filled. Mr Fendick brought another load of boxes up on the platform. He placed them on the truck. By this time, there was little room left on the truck. Mr Fendick, without saying anything further to the appellant, went down again on the platform. When the platform was about two-thirds of the way down, and still descending, the appellant, who did not realize it had moved, and who was still re-organizing the boxes on the truck, stepped backwards. If the platform had still been there, he would have been secure. Instead, he stepped into space, and fell heavily.
The proceedings in the District Court
The appellant sued the respondent in the District Court of Western Australia for damages for negligence, as well as breaches of the Occupational Safety and Health Act 1984 (WA) and the Occupiers' Liability Act 1985 (WA). The Statement of Claim alleged common law negligence in the form of failing to provide safe equipment and failing to provide a safe system of work. The case was argued in the Full Court, and in this Court, on the basis that the statutory counts added nothing material to the appellant's case. Argument was directed entirely to the common law claim. The appellant claimed that the respondent had failed to take reasonable precautions to ensure his safety in these ways: by failing to provide a warning device to indicate that the platform was in the process of being lowered; by instructing the appellant and Mr Fendick to do their work hurriedly and in a manner that "ignored safety issues"; and, by failing to have in place a system of work requiring the employee operating the platform to inform other employees of its movements at any time. The respondent denied liability and contended, among other things, that the appellant's injuries were caused or contributed to by his own negligence in failing to look behind him before stepping backwards.
In cross-examination of him at the trial, the appellant conceded that in the course of doing the work it was necessary for him to turn around and to continue to look behind him from time to time to see what he had to pick up and stack. It was not controverted that the platform could readily and inexpensively have been fitted with a device that would emit warning sounds. Apart from the appellant and Mr Fendick, the only other witness who gave evidence about these matters at trial was an engineer who said that he himself had designed a lifting platform similar to the one in use in this case and had "felt it was absolutely essential to have a warning beeper". He agreed, however, that "it is in the marketplace very unusual to have a beeper attached to them".
The trial judge (Martino DCJ) found that the respondent had exposed the appellant to an unnecessary risk of injury. His Honour said that as the loading of the truck continued, standing room would be reduced. The appellant would then be compelled to step on to the platform. As the platform could be lowered soundlessly, it was foreseeable that the appellant would not know that the platform had been lowered and would lose his step when he attempted to stand on it.
The trial judge formed the opinion that the risk of injury to the appellant could have been avoided if the appellant were to be given a clear warning as and when the platform was lowered. An appropriate warning could have been given, either by a device which emitted sound when the platform was being lowered, or by the respondent's insistence on a system of work requiring that the person lowering the platform inform the loader that the platform was about to be lowered.
The Full Court
"It seems to me that the true issue upon which the case turned was simply whether, in the circumstances, the omission to provide a warning, in either form suggested, that the lifting platform was to be or was being lowered breached the duty of care, or whether this was a case where, as Kirby J said in Romeo v Conservation Commission (NT)4:
'Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.'
In that event, because the obligation of the [respondent] is to take reasonable care to avoid foreseeable risks of injury, the duty will not be breached by the failure to warn. Of course, one must be careful not to elevate that observation, which was directed to the facts of Romeo, into some form of definitive statement of the law, but the remark was described by Gleeson CJ in Woods v Multi-Sport Holdings Pty Ltd5 as 'fair comment' 'as a generalisation'. The Court must not lose sight of the fact that, as Gleeson CJ said in Woods6, 'ultimately, the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk'."
Murray J went on to say7:
"[I]n my respectful opinion, the breach of the duty of care owed by the respondent was not established simply by the observation of the trial Judge ... that it was obvious that, 'when the loading of the truck was almost complete so that there was limited space left on the tray of the truck, the [appellant] would step on to the platform'. To my mind, the chance that he would do so without looking where he was going was, although reasonably foreseeable, remote.
In my opinion, the [respondent] was, acting reasonably, entitled to expect that the [appellant] would look where he was going rather than that he would step back, knowing that he was about to step off the back of the truck tray, without looking to see whether the hoist, which he knew was constantly on the move and which he knew he would not necessarily hear being lowered, was in fact in a position level with the tray of the truck. Further, unless he looked or heard what was happening behind him and so positively satisfied himself that it was safe to step backwards, the [appellant] could not know whether there were cartons of books on the hoist or whether, as was the case when the accident happened, [Mr] Fendick was there. There was no substitute for the [appellant] looking where he was going and, in my view, it was not negligent for the respondent to rely upon him to do so.
If, however, I am wrong on the issue of breach of duty, it is convenient in respect of the liability of both parties to have regard to the question of contributory negligence ... [The trial judge] did not find this to be a case of mere inadvertence. He found that the [appellant] stepped back without looking because he believed that the hoist would be in a position for him to do so safely. He was of that belief, his Honour found, because the [appellant] had not been told that the hoist was to be lowered and had not heard any sound to indicate that it was being lowered.
Again, in my respectful opinion, that is not to the point. The question was whether the [appellant] failed to take due care for his own safety in any of the respects pleaded; in short, by failing to look where he was going when there was no suggestion that there was anything to prevent him doing so. In my respectful opinion, the [appellant's] failure in that regard was very much the substantial cause of the receipt of the [appellant's] injuries.
If the [respondent] was negligent in failing to have a system to warn the [appellant] when the hoist was being lowered, then, in my opinion, the [appellant's] failure to take the simple precaution of looking to see that it was safe to step backwards was contributory negligence and, in my view, the proper apportionment would have been 70 per cent against the [appellant], having regard to all the circumstances of the case."
The appeal to this Court
The appellant relied in this Court on these basic general principles. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury8. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards9. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work10.
The appellant's reliance on these principles is well founded. This case is in our opinion a tolerably clear one. This is not simply a case of a failure to warn. It is a case of a failure to devise and implement a safe system of work, or to provide the appellant with proper and sufficient equipment to enable him to carry out his work safely. The risk that the appellant would attempt to step backwards on to the platform in the belief that it was raised, without checking whether this was the case, was plainly foreseeable. There was no system in place to guard against it. The risk could have been readily obviated by the respondent by the taking of simple measures. The measures included the fitting of a warning "beeper" or the introduction of a system for the giving of an oral warning as and when the platform was being lowered. In light of its failure to implement such or like measures, the respondent was in breach of its duty to take reasonable care to prevent the risk of injury to the appellant. The Full Court therefore erred, in our opinion, in its determination that the respondent was not in breach of its duty.
Compliance by the respondent, as an employer, with its duty of care to an employee was not to be measured by reference to the reasonableness of imposing on an occupier of land an obligation to warn members of the public about the obvious risks on the land. The case for the appellant was not that he should have been warned by his employer that if he fell off the truck he might suffer injury, or that if he stepped off the back of the truck into space he would fall. It was not a question of warning the appellant of a risk. It was a question of creating a risk by failing to adopt a safe system of work.
There should have been in place a system of work designed to avoid the risk that a person required to step backwards and forwards on and from a moveable platform might do so without first looking behind him. The system of work necessarily had also to take into account that the task was a repetitive one to be performed in a diminishing space. Proper account of these matters was not taken by the respondent. It did no more than require that the appellant and Mr Fendick load the truck. That proper account of these matters was not taken was overlooked or disregarded by the Full Court.
Edith Cowan University v Czatryko [2002] WASCA 334. ↩
[2002] WASCA 334 at [11]. ↩
[2002] WASCA 334 at [16]-[17]. ↩
(1998) 192 CLR 431 at 478 [123]. ↩
(2002) 208 CLR 460 at 474 [45]. ↩
(2002) 208 CLR 460 at 472 [39]. ↩
[2002] WASCA 334 at [28]-[32]. ↩
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J. ↩
Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 342 per Taylor J. ↩
Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 342-343 per Taylor J; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 218 per Gibbs J; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 500 [128] per Kirby J. ↩
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310. ↩
Czatyrko
Edith Cowan University [2005] HCA 14;
(2005) 214 ALR 349
(2005) 79 ALJR 839
(1998) 192 CLR 431
(2002) 208 CLR 460
(1956) 96 CLR 18
(1957) 97 CLR 337
(1970) 124 CLR 192
(1986) 160 CLR 301
Appeal allowed with costs. The Full Court's orders were set aside and replaced with an order dismissing the respondent's appeal, with costs. The District Court judgment for the appellant therefore stood.
As to the respondent's alternative plea of contributory negligence, the trial judge thought it relevant that the appellant believed that the platform would be in place when he stepped backwards "because he had not been told that the platform was to be lowered nor heard any sound to indicate that it was being lowered". Plainly the trial judge considered the belief was not unreasonable. Accordingly it was not negligent of the appellant to step backwards without looking to see whether the platform was in such a position or not.
Having found that the respondent was entirely responsible for the appellant's injuries, it was unnecessary for the trial judge to consider the appellant's alternative causes of action. He accordingly gave judgment in favour of the appellant in the sum of $379,402.
An employer has another obligation. It is to provide employees with suitable plant and equipment to enable them to carry out their work safely. This case could also be characterized as a case of a failure to do that. The simplicity and inexpensiveness of a warning device that could have been fitted, required that it be fitted here. This was another matter to which the Full Court failed to pay due regard. The respondent was negligent. The Full Court erred in holding to the contrary.
The respondent submits, nevertheless, that even if the Full Court erred, its provisional finding of contributory negligence of 70% on the part of the appellant should not be disturbed.
In the present case, the appellant did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping on to it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all of these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent. This it failed to do in this case. The appellant's attempt to step on to the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than "mere inadvertence, inattention or misjudgment"11. It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made. The appeal should be allowed. We would make orders as follows:
The appeal should be allowed with costs.
The orders of the Full Court of the Supreme Court of Western Australia made on 9 December 2002 should be set aside and in their place it should be ordered that the appeal is dismissed with costs.