Citation : MILORADOVIC -v- OSBORNE PARK COMMERCIAL PTY LIMITED [2017] WADC 129

Torts - Negligence - Duty of care - No established category duty of care - Store owner - Whether duty of care owed by store owner to customer collecting goods - Where pick-up bay adjacent to common-use access way - Where customer served in common-use access way - Where customer injured by other vehicle in common-use access way - Reasonable foreseeability - Whether breach of duty - Whether breach causative of injury

Civil Liability Act 2002 (WA), s 5B

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1

Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151

Dorset Yacht Co Ltd v Home Office [1970] UKHL 2; [1970] 2 All ER 294; [1970] AC 1004

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205

Miloradovic v Osborne Park Pty Ltd [2017] WADC 129

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713

Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254

Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471

Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180

Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330

Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173

Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306

Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562

Swick Nominees Pty Ltd v Leroi International Inc [No 2] [2015] WASCA 35; (2015) 48 WAR 376

Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51

Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317

The Council of the Shire of Sutherland v Heyman [1985] HCA 41; (1985) 157 CLR 424

Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Woodley v Woodley [2018] WASCA 149

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515

1. This is an appeal against the decision of Stevenson DCJ in Miloradovic v Osborne Park Pty Ltd[1] (primary decision).
2. On 13 January 2015, Mr Gallagher was a customer of Osborne Park Commercial Pty Ltd trading as Harvey Norman Commercial Osborne Park (Harvey Norman), in Osborne Park. Mr Gallagher purchased some goods from Harvey Norman and went to collect them from its warehouse. For this purpose he drove down an access way, as directed by Harvey Norman's reception staff. He parked his car in the access way and Harvey Norman warehouse staff helped load the goods he had purchased into the boot of his car. Whilst Mr Gallagher was standing at and facing the boot of his car, Mr Miloradovic, who had parked in front of Mr Gallagher, reversed his truck and trailer and ran into Mr Gallagher. Mr Gallagher was crushed between Mr Miloradovic's trailer and Mr Gallagher's car.
3. Mr Gallagher sued Mr Miloradovic. Mr Miloradovic admitted negligence and consented to judgment being entered against him for $865,000 as damages and costs for personal injuries caused to Mr Gallagher, which he paid to Mr Gallagher (the judgment sum).[2]
4. In the primary proceedings, Mr Miloradovic claimed a contribution to the judgment sum from the third party, Harvey Norman, pursuant to s 7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (Contribution Act).[3]
5. Harvey Norman resisted the claim for contribution. It contended that it did not owe a duty of care to Mr Gallagher and, even if it did, it did not breach any duty owed to him.[4] Harvey Norman also pleaded that the sole cause of Mr Gallagher's injuries was Mr Miloradovic's 'negligent and reckless' conduct.[5]
6. The issues for determination in the primary decision were whether:[6]
   1. Harvey Norman owed, and breached, a duty of care to its customer, Mr Gallagher?
   2. If so, did the breach cause or contribute to the occurrence of Mr Gallagher's injuries such that Harvey Norman should be held liable to contribute to the judgment sum?
   3. If so, what was a just and equitable apportionment of Harvey Norman's liability?
7. The judge found that:[7]
   1. Harvey Norman owed Mr Gallagher a common law duty of care in all the circumstances.
   2. Harvey Norman breached that duty of care.
   3. Together with the negligence of Mr Miloradovic, Harvey Norman's breach of the duty of care owed to Mr Gallagher was causative of Mr Gallagher's injuries.
   4. It was just and equitable that Harvey Norman contribute 25% of the judgment sum paid to Mr Gallagher.
8. Harvey Norman, in this appeal, challenges the judge's findings that it owed a duty of care to Mr Gallagher, that it breached the duty of care owed and that the breach was causative of Mr Gallagher's injury. Harvey Norman does not contend that the risk of injury to Mr Gallagher was not reasonably foreseeable by it. For the reasons which follow, the challenge to the findings of duty, breach, and causation have not been made out, and the appeal should be dismissed. There is also a 'cross-appeal' by Mr Miloradovic which was, in substance, a notice of contention. As the appeal should be dismissed, there is no need to address the merits of the cross-appeal.

Factual background[8] Harvey Norman and the premises

1. Osborne Park Commercial Pty Ltd was described by its sole director, Mr Cramond, as 'a franchisee of Harvey Norman'. Since 2004, Osborne Park Commercial Pty Ltd was the registered holder of the business name 'Harvey Norman Commercial Osborne Park'. The business was carried on in a commercial complex at 2 O'Malley Street, Osborne Park (Osborne Park commercial complex). Harvey Norman occupied units 7 and 8 of 2 O'Malley Street, Osborne Park. The business had been operated at those premises since about 2000. It had an annual turnover in 2015 of $26 million.[9]
2. Mr Cramond accepted that there was a written lease relating to Harvey Norman's occupation of units 7 and 8 of 2 O'Malley Street, Osborne Park, but he was unable to produce the lease. There was, however, evidence of a copy of a lease dated 1 November 2011 between various parties described as the 'landlord', and another company, Lesandu WA Pty Ltd, as the 'tenant'. The franchisor, Harvey Norman Holdings Ltd, was a party to the lease agreement as a guarantor for Lesandu's obligations as tenant. Mr Cramond was not concerned about the legal basis of Harvey Norman's occupation of the premises. He was content that Harvey Norman had exclusive use and possession of the warehouse premises and associated adjacent loading and parking bays at the Osborne Park commercial complex since 2004.[10]
3. The judge apparently treated the lease agreement between Lesandu and the landlord as containing the relevant terms on which Harvey Norman occupied the premises, and apparently regarded the access way, referred to below, as a 'Common Area' to which Harvey Norman had non-exclusive access.[11]

1. There is an access way, also referred to as the 'common-use driveway', running off O'Malley Street which is used by vehicles to pick up goods from, and deliver goods to, certain stores including Harvey Norman and Barbeques Galore in the Osborne Park commercial complex.[12] Coming down the access way from O'Malley Street, the Harvey Norman warehouse was on the left side of the access way, and the Barbeques Galore warehouse was on the right side of the access way.[13]
2. The access way was 7.44 m wide, with loading bays and car parking bays on either side. The tenants of the Osborne Park commercial complex, including Harvey Norman, had exclusive use of unloading bays for their own use, and also staff parking bays. Both the loading bays and staff parking bays could only be accessed from the access way.[14]
3. On the left-hand side of the access way (going down the access way from O'Malley Street), there were car bays for Harvey Norman staff. After these car bays, the first loading bay on the left-hand side was known as the 'pick-up bay', from which goods were collected by Harvey Norman's customers. The second doorway after that was used for deliveries to the Harvey Norman warehouse, and the third doorway was used for deliveries of goods by Harvey Norman from the warehouse to off-site customers.[15]
4. Harvey Norman, more than other tenants, needed to use the access way for the receipt and delivery of its goods, because of the way its premises are situated and configured in the Osborne Park commercial complex. All the other tenants had a common frontage onto Scarborough Beach Road with car parking for their customers in front of their premises.[16]
5. The access way was not akin to a public carpark in a shopping centre, because commercial vehicles of different sizes were loaded and unloaded in the area, sometimes by hand and often by forklift.[17]
6. The usage and busyness of the access way varied, depending on the time of the day. At times it was crowded, with various trucks for tenants parked in the access way, blocking access to others for the purpose of unloading. The impact of each tenant's operations on the operations of other tenants was therefore readily apparent and discernible, as was the risk to persons associated with the various businesses.[18]
7. The ambient noise in the access way could make it difficult to hear the approach of vehicles.[19]
8. The limited size of the access way, the fact that trucks parked in it to unload, and the existence of other traffic including forklift movements and cars accessing and using parking bays, combined to indicate that persons using the access way were entering a 'working area', and should have been alerted to obvious safety risks.[20] The access way was an extension of Harvey Norman's workplace and warehouse operations.[21]
9. Any person who did not have prior knowledge of the access way could reasonably have assumed, contrary to the fact, that vehicles would drive through to exit the access way, rather than drive back out to O'Malley Street.[22]

Harvey Norman's use of the access way for loading

1. From time to time, Harvey Norman would load goods into a customer's vehicle whilst they were parked in the access way, rather than in the loading bay (ie, the pick-up bay).[23]

1. Mr Miloradovic was a truck driver employed by Cahill Transport. He had been working in that capacity for over three years at the time of the incident in January 2015. Over that period, he had used a truck and trailer combination to deliver goods to Barbeques Galore at the Osborne Park commercial complex. Occasionally, but rarely, he used the truck only. His truck and trailer were 2.49 m in width and had an overall length of 18.69 m.[24]
2. Mr Miloradovic delivered goods to Barbeques Galore at the Osborne Park commercial complex once a week, although in busy seasonal periods he might be required to deliver two or three loads.[25]
3. Mr Miloradovic's routine procedure, which he had adopted over a period of at least three years prior to the incident, was to drive his truck and trailer down the access way and park it on the left (the Harvey Norman side). This enabled a forklift operator from Barbeques Galore to unload the right side of his vehicle. He would then reverse back down the access way towards O'Malley Street and reposition the vehicle so that it was parked on the right side of the access way, adjacent to Barbeques Galore. This enabled the left side of his vehicle to be unloaded.[26]
4. In order to exit the access way, trucks and vehicles involved in deliveries and collections in the access way would usually drive forward to the rear of the access way, turn around in the car park area there, and then drive out forwards to O'Malley Street. Because of the trailer attached to Mr Miloradovic's truck, that manoeuvre was not open to him. He was required to back the entire way up the access way towards and into O'Malley Street itself.[27]
5. The use and busyness of vehicles using the access way were such that Mr Miloradovic sometimes had to wait before he could enter the access way because of the presence of other trucks. Sometimes he would wait on O'Malley Street, and sometimes he would drive in and wait behind other trucks and wait for a space to be cleared for him to drive into. Because the truck was a twin turbo, Mr Miloradovic generally left the engine running for 15 - 30 minutes while he was parked in the access way for unloading. This added more general ambient noise to the area.[28]
6. Apart from the person who had the truck before him, no users of the driveway or tenants of the Osborne Park commercial complex had ever given Mr Miloradovic any directions as to how he should go about his unloading for Barbeques Galore, except for a few times when he had been asked to move his truck.[29]

1. On 13 January 2015, Mr Miloradovic was delivering goods to Barbeques Galore at the Osborne Park commercial complex.[30] He adopted his usual routine.[31] Mr Miloradovic turned left from O'Malley Street into the access way. He drove forward on the left-hand side, and parked his truck and trailer opposite the Barbeques Galore loading bay. His truck and trailer blocked access to the Harvey Norman loading bays on the left side.[32] His truck and trailer were parked there when Mr Gallagher came to collect the goods he had purchased from Harvey Norman.
2. On 13 January 2015, Mr Gallagher went to Harvey Norman to collect some electrical kitchen appliances.[33] He proceeded into the reception showroom area, and spoke to a Harvey Norman reception staff member.[34]
3. The reception staff member directed Mr Gallagher to drive his vehicle down the side of the building to the first loading bay (ie, pick-up bay) on the left hand side of the access way.[35] She did not give Mr Gallagher any instructions or warnings as to his personal safety, or of the obvious dangers in the vicinity of the immediate area to which he had been directed.[36]
4. When Mr Gallagher drove into the access way, there were no available parking bays adjacent to the access way.[37] Also, Mr Miloradovic's truck and trailer were blocking access to the Harvey Norman pick-up bay. Mr Gallagher reversed his Jeep down the access way on the Harvey Norman (left-hand) side of the access way, and parked behind Mr Miloradovic's truck and trailer. The rear of the two vehicles were facing each other. There was a gap of about 6 - 7 m between the vehicles.[38]
5. After parking in the access way, Mr Gallagher got out and walked to the Harvey Norman pick-up bay. A Harvey Norman staff member, Mr Matiu, served Mr Gallagher. Mr Matiu knew of the presence of Mr Miloradovic's truck and the location of Mr Gallagher's Jeep being immediately behind it.[39] Mr Gallagher was not asked to move his vehicle.[40]
6. While Mr Gallagher and Mr Matiu were loading goods into the boot of Mr Gallagher's Jeep, Mr Miloradovic got into the cab of his truck, and reversed his truck and trailer, in order to reposition it to the right side of the access way. In the course of doing so, Mr Gallagher was crushed between his vehicle and Mr Miloradovic's trailer.[41]
7. Mr Matiu was able to jump to safety.[42]
8. Mr Gallagher, whose evidence the judge accepted, said, in effect, that the ambient noise in the area at the time of the accident, from the movement of vehicles, forklifts and other industrial and road sounds, made it 'damned near impossible' to hear a vehicle coming towards a person in the access way.[43]
9. Mr Miloradovic was not aware of the collision because he did not feel any impact. He was only aware that something had happened when he saw, in the side mirror of his truck, Mr Matiu waving his arms and motioning to go forward. Mr Miloradovic stopped reversing, and pulled forward.[44]

WorkSafe and the franchisor's traffic management plan

1. Following the incident on 13 January 2015, Harvey Norman was issued with an improvement notice by WorkSafe on the basis that Harvey Norman did not have a traffic management plan with respect to the common use of the access way. After the incident, a member of Harvey Norman's staff obtained a copy of a traffic management plan document that had been 'issued' by its franchisor, Harvey Norman Holdings Ltd, in March 2014, and provided a copy of that document to WorkSafe. Mr Cramond said that the document looked like something that the franchisor's occupational safety and health department would generate. The franchisor's traffic management plan did not come to the attention of Harvey Norman prior to the incident on 13 January 2015.[45]
2. Although it is not entirely clear, when the judge's reasons are read as a whole, the better view is that the judge found that the franchisor's traffic management plan had been available to Harvey Norman at the time of the incident, but had not actually been obtained by Harvey Norman up to that time.[46]
3. The judge made the following findings with respect to the franchisor's traffic management plan:[47]

As expressly stated in the OHS traffic management plan:

'Many workplace incidents are caused by pedestrians moving about in the workplace where reversing vehicles, vehicle loading and unloading activates, people who work near vehicles such as vans, cars, trucks, trailers, forklifts, moving plant, equipment and powered plant are the most at risk. Vehicles moving around a workplace are frequently linked with death and injuries to workers and members of the public.

A traffic management plan is essential to ensure that traffic moves safely and efficiently throughout the workplace with consideration given to people, moving vehicles, plant and equipment in operation that could be operating in adverse weather conditions affecting the work area both inside and outside the site access entry exit e.g. wind, heat and rain etc.'

The OHS traffic management plan also expressly informs Harvey Norman, as a franchisee, that it has a duty to provide

'Information, training, instruction and supervision necessary to protect all persons from risk to their health and safety ... and inform other people at the workplace, including customers and visitors that they must take reasonable care not to adversely affect other people's health and safety ...'

The OHS traffic plan provided to Harvey Norman by its franchisor is aimed to protect the safety, not only of its own employees, but also all customers and members of the public who may be at risk by reason of their association with the franchisee's operations. The plan makes some simple and obvious suggestions as to what needs to be considered to manage the risks including the need to engage in discussion with others and the use of temporary high visibility physical barriers.

Other matters identified as potential hazards for risk assessment in the OHS traffic management plan include a consideration of how vehicles, pedestrians and delivery drivers move around the area. It raises questions such as; are workers, customers and visitors safe when getting into and out of vehicles; are there blind spots caused by stationary equipment, vehicles and stock; and are workers and visitors made aware of the hazards in the area? The OHS traffic management plan identifies the need to consider alternative measures to minimise the risk if eliminating the risk is not reasonably practicable, including by separating or isolating people from hazardous work or areas of high risk.

1. As a result of the accident, a new procedure was implemented whereby cones were placed behind a customer's car once the car was in the loading bay itself. This effectively blocked the car in, so that it did not reverse out into the common access way. The judge inferred that the person removing the cones when the car was ready to leave the loading bay would also act as a lookout at the time of the actual reversal of the customer's vehicle. No other changes had been made following Mr Gallagher's accident. In particular, no new procedure was adopted in the event that a loading bay was already occupied, or blocked by another vehicle in the access way.[48]

1. Mr Miloradovic admitted that he knew that he had a blind spot behind the trailer.[49] He did not look properly or with reasonable care before he proceeded to reverse his truck and trailer. Mr Miloradovic had a rear reversing camera but maintained that, by reason of sunlight on the screen, it was not effective to enable him to see behind the trailer.[50]
2. The judge found that:[51]
   1. Mr Miloradovic did not take any reasonable care in the circumstances before reversing his truck and trailer.
   2. It was reckless of Mr Miloradovic to reverse the vehicle in the circumstances that he did on this occasion, without taking any reasonable care for the safety of third parties.

Mr Miloradovic's claim in the primary proceedings

1. Mr Miloradovic claimed that Harvey Norman owed Mr Gallagher (1) a duty of care under the common law; and/or (2) a statutory duty of care pursuant to s 5 of the Occupiers' Liability Act 1985 (WA); and/or (3) a statutory duty of care under s 22 of the Occupational Safety and Health Act 1984 (WA).[52] Mr Miloradovic alleged, in essence, that Harvey Norman breached its duty of care to Mr Gallagher by, amongst other things, allowing his vehicle to be loaded in the access way, directing or permitting the loading of the vehicle in the access way, failing to direct Mr Gallagher to wait until the pick-up bay was accessible before commencing the loading process, and failing to have any system in place for the safety and protection of its customers using the access way or the pick-up bay.[53]

Primary decision Credibility of witnesses

1. The judge expressly accepted that Mr Gallagher, Mr Miloradovic and Mr Matiu were credible witnesses.[54]
2. The judge did not make any express adverse findings as to Mr Cramond's credibility, but said that his evidence was carefully led to show that he had no personal knowledge of Harvey Norman's pick-up bay having been blocked previously, and no personal knowledge that Harvey Norman's staff serviced customers who were parked in the access way.[55]
3. Mr Uhrhane was Harvey Norman's warehouse manager between 2000 and 2014.[56] The judge preferred the evidence of Mr Miloradovic over the evidence of Mr Uhrhane in relation to Mr Miloradovic's usual routine in unloading his deliveries at Barbeques Galore.[57]

1. In addition to the background facts referred to earlier, the judge's findings of primary fact also included the following.

Harvey Norman's knowledge of the use of the access way

1. The judge found that at the time of the incident on 13 January 2015, Harvey Norman, by its employees, was aware, amongst other things:
   1. that from time to time it loaded customers' vehicles in the access way, rather than in the pick-up bay;[58]
   2. that on occasions, larger trucks, including semi-articulated vehicles, reversed in the access way in order to exit the access way, as they had no other means of exit;[59]
   3. of the risks and difficulties of larger trucks, including semi-articulated vehicles, using the access way to make deliveries, and, in particular, the obvious risks whenever the need arose for large vehicles to reverse in the access way;[60]
   4. of the truck and trailer combination driven by Mr Miloradovic;[61]
   5. of Mr Miloradovic's need to reverse his truck and trailer combination up the access way and out onto O'Malley Street in order to exit the access way;[62]
   6. of Mr Miloradovic's 'routine procedure' of ingress and egress;[63] and
   7. of the presence of Mr Miloradovic's truck on 13 January 2015, and that Mr Gallagher's car was located immediately behind the truck.[64]

1. The judge found that Harvey Norman did not do any of the following:
   1. Undertake any risk identification or implement any procedures to minimise the risk of personal injury or damage to its customers and employees when loading vehicles in the access way and the pick-up bay.[65]
   2. Give any warning to Mr Gallagher to keep a look out or to take care to ensure his own safety.[66]
   3. Identify any risks or hazards, and accordingly took no steps to minimise the risks.[67]
   4. Put out orange cones to act as a warning.[68]
   5. Give any consideration to the instructions given to customers who were sent from the front of the building to the loading area to collect their goods.[69]
   6. Have any system in place to ensure that the pick-up bay was in fact accessible to the customer, and on arrival to advise of appropriate steps to be taken to minimise obvious risks to its customers and employees.[70]
   7. Undertake a basic risk assessment which would have identified the obvious risk created by it sending its customers to the pick-up bay when vehicle access, for whatever reason, was not available.[71]
   8. Have a traffic management plan in place at the time of the accident.[72]
   9. Train or instruct its employees (including Mr Uhrhane) to check if its customers were having problems with traffic in the access way, or indeed in obtaining access to the pick-up bay.[73]
   10. Take action to identify any risks to Mr Gallagher, in circumstances where the risk would have been obvious, especially given Harvey Norman's knowledge that Mr Miloradovic had to reverse the truck and trailer combination in the access way because it was not possible for him to exit the premises forwards.[74]
   11. Inform Mr Miloradovic that Mr Gallagher's vehicle was parked behind him.[75]

1. The judge found that Harvey Norman owed a common law duty of care to Mr Gallagher 'to exercise reasonable care and skill so as to avoid foreseeable risk of harm to him' while collecting his goods from its pick-up bay.[76] This was because Mr Gallagher was using the access way on the invitation of Harvey Norman, with Harvey Norman, by its employees, being prepared to load his vehicle while it was parked in the access way, in circumstances where entry to the pick-up bay was not possible, and in circumstances where loading in the access way involved inherent dangers.[77]
2. The judge also said that the 'salient features' of the relationship between Harvey Norman and Mr Gallagher included (1) the proximity or nearness in a physical, temporal and relational sense; (2) the nature or degree of hazard or danger that might be caused by Mr Miloradovic's conduct; (3) Mr Gallagher's inability to protect himself from the hazard; and (4) the fact that Harvey Norman knew or ought to have known of the hazard.[78]
3. The judge rejected Mr Miloradovic's contention that a duty of care was owed under either s 5 of the Occupiers' Liability Act or s 22 of the Occupational Safety and Health Act in the circumstances of the case.[79]

1. The judge set out s 5B of the Civil Liability Act 2002 (WA):[80]

(1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

1. The judge made the following findings which were presumably intended to be made with reference to s 5B(1) of the Civil Liability Act:[81]
   1. The risk of harm to Mr Gallagher in the pick-up bay or access way was foreseeable, 'given the multi-use purpose for which the area [was] occupied' and 'the amount of potentially conflicting traffic movements'.
   2. The risk of injury in the circumstances was not insignificant.
   3. In the circumstances, any reasonable store owner in the position of Harvey Norman would have taken 'some precautions' (which his Honour did not then specify) against the risk of harm to its customers, to which they were inevitably exposed in the vicinity of the pick-up bay and access way.
2. The judge also found, presumably in relation to s 5B(2) of the Civil Liability Act, that:[82]
   1. the probability of a customer being injured in circumstances where Harvey Norman's pick-up bay was often inaccessible was not insignificant;
   2. the seriousness of personal injury to a customer in the vicinity, given the nature of the vehicles and machinery being used, was high; and
   3. the 'burden of taking reasonable precautions to avoid the risk of harm to its customers was low in all the circumstances'.
3. Although the judge did not specify what precautions he was referring to in the above statements, his Honour gave by way of an 'example' the use of CCTV cameras to monitor the area so that 'a feed could have been made available to reception staff ... so that access to the loading bay could be determined before directing a customer to it'.[83]

1. The judge rejected Harvey Norman's contention that it was impossible to identify precautions for the purposes of applying s 5B of the Civil Liability Act, which it could have taken, in order to determine whether it breached its duty to exercise reasonable care.[84]
2. The judge concluded that there were 'many clear and simple precautions' that any hazard identification or risk assessment would have identified, if one had been undertaken, as it should have been.[85] Although his Honour did not, in stating that conclusion, specify what these 'simple precautions' were, when his Honour's reasons are read as a whole, it appears that the judge had in mind that Harvey Norman could have:[86]
   1. Used orange warning cones to delineate relevant areas.[87]
   2. Used movable temporary signage to direct traffic around parked vehicles in the access way while they were being loaded.[88]
   3. Instructed its employees who loaded a vehicle in the pick-up bay or parked in the access way to act as a lookout.[89]
   4. Informed the drivers of other parked vehicles in the access way of the presence of a customer's vehicle for the purpose of loading, so that the driver was aware before moving their vehicle.[90]
   5. Informed Mr Miloradovic, because he was there first, that its customer, Mr Gallagher, was parked behind his truck and trailer.[91]
   6. Directed Mr Gallagher that he was not to park in the access way.[92]
   7. Instructed its employees not to load vehicles parked in the access way.[93]
   8. Utilised a system of communication whereby the customer was not sent from the front of the premises in his or her vehicle to the pick-up bay unless the pick-bay was accessible and available. This could be 'easily achieved' by placing a monitor for the CCTV camera above the pick-up bay so reception could see whether it was free and unobstructed.[94]
   9. Required the reception staff in the store to alert the storemen that a customer had been sent to the pick-up bay so that the customer could be met and directed (if necessary) in accordance with any relevant traffic management plan.[95]
3. The judge also observed that a consideration of the risk 'might also' have resulted in one or two of Harvey Norman's staff parking bays adjacent to the pick-up bay being utilised by customers collecting goods. The only inconvenience would be to one or two Harvey Norman employees who would need to walk further from the rear carpark at the complex to the front of the warehouse in order to obtain access to their workplace. This, in itself, might necessitate the delineation of a painted walkway area, as is seen in many workplaces, together with signage, to direct customers at warehouses to collection points.[96]
4. The judge also said that if Harvey Norman did not have 'control' over the access way as it contended, such an outcome merely highlighted the importance of the need for Harvey Norman to put in place appropriate measures to deal with the obvious risks to its customers.[97]

1. The judge also said that a reasonable store owner would have appreciated the need to undertake a risk assessment of the situation before sending its customers into an area where there was a foreseeable risk of injury which was not insignificant.[98] The judge said that the access way, and the presence of the loading bays and staff carparks adjacent to Harvey Norman's warehouse, called for a hazard identification assessment to be conducted. If it had been, Harvey Norman would have known that there were no, or no adequate or proper, controls in place and that steps were required to manage the risk to which it was exposing its customers. This 'might have resulted' in a combination of a traffic management plan, signage, information, training and supervision for the purpose of improving safety in the area for its customers and for its employees who were involved in serving customers in the access way or pick-up bay.[99]

1. The judge rejected Harvey Norman's submissions that:[100]
   1. There was no identifiable conduct or omission on its part that caused any injury to Mr Gallagher.
   2. Mr Miloradovic was the sole tortfeasor responsible for the injury to Mr Gallagher.
2. The judge said that an important factor in this regard was the finding that Harvey Norman, by its employees, knew of the conduct and activities of Mr Miloradovic that exposed its customers to risk of harm.[101]
3. The judge found factual causation on the part of Harvey Norman for the harm suffered by Mr Gallagher on the basis that, had Harvey Norman not breached its duty of care to Mr Gallagher, then there was a 'real and substantial possibility', on the balance of probabilities, that Mr Gallagher might not have been injured, irrespective of the negligence of Mr Miloradovic.[102] His Honour did not explain whether, and if so on what basis, any of the matters referred to in [49] or [58] - [59] above would, if implemented, have avoided the injury to Mr Gallagher.
4. The judge also said that the franchisor's traffic management plan, if it had been obtained and adhered to, would have resulted in the implementation of relevant changes in 'operating procedures' which would have minimised the risk of injury to Mr Gallagher in January 2015.[103] Again, his Honour did not explain what 'operating procedures' would have been reasonable responses to the risk, or how the implementation of such procedures would have avoided the accident.
5. The judge also said that if Harvey Norman had done a risk assessment, it would have identified the need to provide 'appropriate instructions' to its customers to ensure that they were not exposed to risk of injury if they were not able to drive into the pick-up bay.[104] Again, there was no explanation of what these 'appropriate instructions' were, or how the instructions would have avoided the injuries to Mr Gallagher on the day in question.

Apportionment - just and equitable contribution

1. Neither party contended that Mr Gallagher was in any relevant sense contributorily negligent.[105] On balancing all the relevant considerations, the judge said that notwithstanding the overwhelming and gross negligence of Mr Miloradovic in reversing his truck and trailer in circumstances where he knew he had a blind spot and had failed to properly check whether it was safe to do so, if Harvey Norman had taken the precautions pleaded against it, then Mr Gallagher would not have been injured, or the risk of him being injured in the circumstances that he was, would have been reduced.[106] The judge found that, in the circumstances, it was just and equitable that Harvey Norman be ordered to make a contribution of 25% to the judgment sum, pursuant to s 7(1) of the Contribution Act, to Mr Miloradovic by reason of the breach of its common law duty of care to Mr Gallagher.[107]

1. Harvey Norman relies upon four grounds of appeal to the following effect.

Ground 1 - error as to the nature and magnitude of risk of injury

1. Ground 1 alleges that the judge made an accumulation of errors of fact and law on the nature and magnitude of the risk of injury in that his Honour 'made presumptions, made findings of fact that were not supported by the evidence, or overstated the conclusions from the evidence'.[108]

1. Ground 2 alleges that the judge erred in law in holding that Harvey Norman owed a duty to exercise reasonable care that was relevant to a class to which Mr Gallagher belonged in that:
   1. when viewed prospectively from Harvey Norman's perspective, there were no facts that gave rise to a duty of care;
   2. the judge formulated the scope and content of the duty with the benefit of hindsight; and
   3. the scope and content of any duty that may have been owed by Harvey Norman to Mr Gallagher did not extend to the risk of reckless driving by a third party.

1. Ground 3 alleges that the judge erred in law in finding that Harvey Norman breached a duty of care owed to Mr Gallagher in that:
   1. the judge identified various precautions not pleaded by Mr Miloradovic and which, in substance, were precautions identified with hindsight;
   2. Harvey Norman did not have actual or imputed knowledge of facts constituting a risk of harm, of sufficient magnitude, to a class to which Mr Gallagher belonged, that warranted the suggested precautions, and there were no such facts in any event; and
   3. the judge failed to give adequate reasons to justify his conclusions about the fact of, and Harvey Norman's knowledge of, the nature and magnitude of the risk of injury.

1. Ground 4 alleges that the judge erred in law in finding that Harvey Norman's conduct caused Mr Gallagher's injury in that the judge applied the incorrect test. In particular, he expressly applied a test of whether there was a 'real and substantial possibility' on the balance of probabilities that Mr Gallagher might not have been injured irrespective of Mr Miloradovic's negligence.

1. Mr Miloradovic relies upon two grounds of cross-appeal.
2. Ground 1 alleges that the judge erred in law by failing to find that the access way was a 'workplace' for the purpose of the Occupational Health and Safety Act. It is alleged that the judge should have found that Harvey Norman owed a duty of care to Mr Gallagher pursuant to s 22 of that Act.
3. Ground 2 alleges that the judge erred in law by failing to find that Harvey Norman had the requisite control of the access way for the purposes of the Occupiers' Liability Act. It is alleged that the judge should have found that Harvey Norman owed a duty of care to Mr Gallagher pursuant to s 5 of the Occupiers' Liability Act.
4. Counsel for Mr Miloradovic accepted that the cross-appeal was more in the nature of a notice of contention.[109]

Appellant's submissions on the appeal Ground 1 - challenge to findings of fact and knowledge of risk

1. Harvey Norman's submissions with respect to ground 1, attacking the judge's primary findings of fact, are referred to in [83] - [100] below.

1. Harvey Norman submits that there were no facts supporting the existence of a duty of care owed by Harvey Norman, in that:
   1. There was no 'traditional basis' for finding a duty of care.[110]
   2. The access way was controlled by the landlord. Movement of the vehicles in the access way was outside of Harvey Norman's control. Harvey Norman was not the occupier, nor a lessee.[111]
   3. Customers driving to Harvey Norman's customer pick-up bay would be exposed to the ordinary risks of driving in the potential presence of occasional moving vehicles.[112]
   4. Mr Gallagher was capable of acting as a prudent driver and protecting himself without the need for special precautions.[113]
   5. The judge's approach and formulation of the duty[114] resulted from applying hindsight knowledge of the circumstances of the incident that occurred. It incorporated specificity as to a risk that was derived from knowledge of what had happened to Mr Gallagher.[115]
   6. The risk that materialised was the risk of injury from reckless driving by a third party.[116] If Harvey Norman owed any duty of care, its scope and content did not encompass reckless driving by a third party.[117]
   7. The judge's focus was on Mr Miloradovic's vehicle blocking access to Harvey Norman's pick-up bay and reversing, rather than the risk of reckless driving. Without more, blocking access to Harvey Norman's pick-up bay and reversing did not present a risk of injury to anyone.[118]
   8. In the circumstances, the risk of injury to a customer was 'infinitesimally low'.[119]

1. Harvey Norman submits that:
   1. The judge made no express finding as required by s 5B(1) of the Civil Liability Act that the precautions identified were those that a reasonable person would have taken.[120]
   2. The judge failed to articulate clear precautions as to what Harvey Norman should have done to exercise reasonable care. Accordingly, it was impossible to identify precautions for the purpose of applying s 5B of the Civil Liability Act in order to determine whether Harvey Norman breached a duty to exercise reasonable care.[121]
   3. The judge's findings, that any reasonable store owner in Harvey Norman's position would have taken some precautions against the risk of harm to its customers, were vaguely expressed without reference to specific findings or evidence of risk and knowledge.[122] Harvey Norman refers to ground 1 in this regard.
   4. The judge's findings, that the loading bay was often inaccessible, was not supported by the evidence. There was no evidence as to what a hazard identification assessment would have recommended.[123]
2. Harvey Norman also contended, in effect, that there was no evidence that Harvey Norman's staff knew that Mr Miloradovic could not see where he was going when reversing, and that:[124]
   1. From the perspective of anyone other than [Mr Miloradovic] the probability was infinitesimally low of this compound event occurring:

18.1 A vehicle parking adjacent to the loading bay; and

18.2 At the same time a customer of the appellant parking in the access way behind the other vehicle; and

18.3 The customer parking close to the other vehicle; and

18.4 The customer standing between the vehicle and the other vehicle and with his back to the other vehicle; and

18.5 The customer standing between the vehicles during a period of reversing of up to 15 seconds; and

18.6 The other driver not checking behind his vehicle before reversing; and

18.7 The other driver not giving any warning that he was about to or was reversing; and

18.8 The other driver reversing towards the customer; and

18.9 Warning apparatus on the other vehicle not operating;

18.10 The other driver not being able to see behind, and accordingly not looking where he was going, as he reversed.

1. Low probabilities multiply (and hence reduce the overall probability), rather than add, for statistically independent events that make up a compound event; see Eggleston, Evidence, Proof and Probability 2nd ed, Weidenfeld and Nicholson, pp 13 - 15. (emphasis added)
2. In oral submissions, Harvey Norman submitted that the 'infinitesimally low' risk meant either, or both, that (1) the risk could not be characterised as not insignificant within the meaning of s 5B(1)(b) of the Civil Liability Act, and (2) in the circumstances, for the purposes of s 5B(1)(c) of that Act, a reasonable person would have taken no further precautions beyond directing Mr Gallagher to the pick-up bay in the way that it did.[125]

1. Harvey Norman submits that:[126]
   1. Mr Miloradovic bore the onus of proving on the balance of probabilities any fact relevant to the issue of causation pursuant to s 5D of the Civil Liability Act.
   2. The judge did not refer to s 5D of the Civil Liability Act. The correct test was not proof of a 'substantial possibility'.
   3. The judge failed to undertake any analysis of the precautions his Honour suggested for the purpose of determining, and failed to determine, that any of them would have resulted in avoiding injury to Mr Gallagher.

The appellant's challenges to findings of fact in ground 1

1. The findings of fact challenged by Harvey Norman are to be discerned from Harvey Norman's written submissions. In substance, it appears from the submissions that the challenged findings may be summarised as follows.[127]

Harvey Norman's greater need to use the access way

1. Harvey Norman submits that the finding (at [16]) that Harvey Norman had a greater need to use the access way was not supported by the evidence.[128]

1. Harvey Norman challenges the finding (at [228]) that the access way was at times crowded. Harvey Norman says this finding was not supported by the evidence, and was made 'without relating that to a tangible risk to a customer who was directed to' the pick-up bay.[129]

1. Harvey Norman challenges the judge's rejection (at [186]) of Mr Uhrhane's evidence that apart from the one customer he mentioned, there was 'never any other customer' affected by a vehicle blocking access to Harvey Norman's pick-up bay. Harvey Norman says that the rejection of Mr Uhrhane's evidence on the topic was said by the judge (at [186]) to be based on 'the whole of the evidence', but the judge did not indicate to which evidence his Honour was referring.[130] Harvey Norman also challenges the finding (at [206]) that 'from time to time' the pick-up bay was blocked by trucks (plural), when there was no evidence that any truck, other than Mr Miloradovic's, ever blocked the pick-up bay.[131]

Service of Harvey Norman customers in the access way

1. Harvey Norman alleges that the judge's findings to the effect (at [159] and [213]) that 'from time to time' Harvey Norman's staff loaded customers' cars in the access way and had no difficulty in serving customers in the access way, were not supported by, or overstated, the evidence.[132]
2. Harvey Norman also contends that the judge wrongly found that Harvey Norman's employees were prepared to serve customers or were allowed to serve customers, including Mr Gallagher, in the access way, and that staff loaded a vehicle 'in the middle of the road'. Reference was made to primary decision [7], [65], [126], [137], [138], [177].[133]
3. Harvey Norman accepts that there 'was evidence that there had been occasions when employees of [Harvey Norman] had assisted loading goods into a customer's vehicle in the access way'. However, it contends that there was 'no evidence that on any occasion a customer was exposed to injury or that these occasions were anything other than rare'.[134]

1. Harvey Norman contends, in effect, that the procedure of Mr Miloradovic, as found by the judge, was his procedure in January 2015 (only), because at that time of the year he had big loads and a full truck. It is alleged that the judge was wrong to find that it was a regular procedure of some three years standing.[135]
2. Harvey Norman also contends that the judge wrongly rejected (at [135]) Mr Uhrhane's evidence to the effect that Mr Miloradovic did not have the routine found by the judge, insofar as Mr Uhrhane had worked there for 14 years and had (he said) only ever seen the Cahill Transport truck and trailer parked on the right side.[136] Harvey Norman contends that there was no basis for rejecting Mr Uhrhane's evidence, and that the reasons given by the judge for rejecting it (at [136] - [139]) were speculative or overstated the evidence. Also, although as the judge noted (at [212]), Mr Miloradovic was not cross-examined on his routine, the judge was told that Mr Uhrhane had only been located and spoken to after Mr Miloradovic had given his evidence, and the judge had accepted, during closing submissions, that there was no 'Browne v Dunn point' in that regard.[137]

Number of pick-ups from warehouse - 'at least' five or six per day

1. Harvey Norman also contends that the judge overstated or misstated Mr Uhrhane's evidence (at ts 182) when he found (at [185]) that Mr Uhrhane had said that pick-ups from the Harvey Norman warehouse were 'at least' five or six a day. Harvey Norman submits that Mr Uhrhane did not use the words 'at least', and that this was not the natural meaning of his evidence on the topic.[138] Harvey Norman also contends, in effect, that the judge should have found, having regard to Mr Cramond's evidence, that there were not a lot of pick-ups.[139]

1. Harvey Norman also challenges the finding (at [207]) that on Mr Uhrhane's evidence, there were difficulties associated with large vehicles and semi-trailers reversing up the access way. Harvey Norman contends that the judge should have found, on Mr Uhrhane's evidence, that (1) it was rare that vehicles had to reverse out; (2) there were few semi-trailers; (3) the semi-trailers were booked for the early morning; and (4) this occurred in the early part of his employment.[140]

1. Harvey Norman contends that the judge overstated the evidence of Mr Uhrhane (at [203]) when his Honour found that 'Mr Uhrhane maintained [that] continual movements of [Mr Miloradovic's] truck were necessary because the forklift driver could not get access to the whole side of the truck due to vehicles parked either side of the unloading bay'. Harvey Norman submits that this was not the effect of Mr Uhrhane's evidence, as set out in [200] - [201] of the primary decision.[141]

1. Harvey Norman challenges the finding (at [233]) that if a risk assessment had been done, the obvious risks would have been identified and steps taken to minimise the danger to Mr Gallagher. It alleges that there was no evidence as to what a risk assessment would have recommended.[142]

1. Harvey Norman contends, relevantly, in effect, that the judge erred in fact in finding[143] that Harvey Norman was aware or ought to have been aware of the matters summarised in [48] above, namely:
   1. that from time to time it loaded customers' vehicles in the access way, rather than in the pick-up bay;
   2. that on occasions, larger trucks, including semi-articulated vehicles, reversed in the access way in order to exit the access way, as they had no other means of exit;
   3. of the risks and difficulties of larger trucks, including semi-articulated vehicles, using the access way to make deliveries, and, in particular, the obvious risks whenever the need arose for large vehicles to reverse in the access way;
   4. of the truck and trailer combination driven by Mr Miloradovic;
   5. of Mr Miloradovic's need to reverse his truck and trailer combination up the access way and out onto O'Malley Street in order to exit the access way;
   6. of Mr Miloradovic's 'routine procedure' of ingress and egress; and
   7. of the presence of Mr Miloradovic's truck on 13 January 2015, and that Mr Gallagher's car was located immediately behind the truck.
2. Harvey Norman in this context also contends that the knowledge of an employee is not necessarily attributed to the company,[144] and refers to Nationwide News Pty Ltd v Naidu[145] and Quadriplegic Centre Board of Management v McMurtrie.[146] In the former case, Spigelman CJ said:[147]

Whether a principal is affected by an agent's knowledge depends upon the context. (See Smits v Roach (2006) 227 CLR 423 at 441 [47], referring to El Ajou v Dollar Land Holdings plc [1993] EWCA Civ 4; [1994] 2 All ER 685 at 701 - 704.) In an agency context the issue turns on actual or ostensible authority. Analogous principles apply in the context of employees in an organisational hierarchy.

Whether the knowledge of a particular person should be imputed to a corporation depends on the scope of that person's employment. A person in a supervisory position ... has duties which encompass the receipt of the relevant knowledge and accordingly, could be said to have a duty to communicate and/or act upon it.

1. In its written submissions, Harvey Norman says that the judge should have accepted Mr Uhrhane's evidence (at ts 182, 184, 188, 191) that he had not seen Mr Miloradovic's truck, or any other vehicle, blocking access to the pick-up bay, and that only one customer was served more than once whilst parked across the pick-up bay.[148]
2. Harvey Norman also contends, in effect, that Mr Cramond's evidence also indicated that Harvey Norman did not know of any occasions in which the loading bay was blocked.[149]
3. In relation to Mr Matiu's evidence, although he evidently knew that Mr Gallagher was parked in the access area, Harvey Norman contends that his knowledge was not the knowledge of Harvey Norman, and his evidence to the effect that he had seen Harvey Norman's staff loading goods in the access way rather than in the pick-up bay whilst he was employed by Harvey Norman, carried no real weight because he was not cross-examined on what he had seen, including the date, circumstances or frequency of the occurrences, or any apparent danger from them.[150]

1. Harvey Norman also contends that the judge made an 'irrelevant reference' (at [115]) to what he described as Harvey Norman having not made any material changes to address the risks to which it exposed its customers.[151]
2. Harvey Norman also submits that the judge's factual findings were made in the context where some of the observations made by the judge led to a submission by counsel for Harvey Norman at the trial that there was a risk of prejudgment.[152] The relevant passage is at ts 236:

[COUNSEL FOR HARVEY NORMAN]: ... [Y]our Honour ... you did - and I cover this later because you did, with respect, make comments that had a tone of prejudgment in them, and that's why I've dealt with that in the written submissions.

STEVENSON DCJ: And that's why I was recapping to say these are provisional comments and I was making the comments as a matter of fairness to both parties at the time provisionally, because that's what I was hearing and thinking based on the evidence to that point.

1. Harvey Norman's challenges to the findings of fact (referred to in [83] - [100] above) should be rejected for the following reasons.

Harvey Norman's greater need to use the access way

1. It was open to the judge to infer that of the tenants using the access way, Harvey Norman had a greater need to use the access way than others. That is because there is no challenge to the findings or evidence that (1) other tenants, but not Harvey Norman, had a common frontage onto Scarborough Beach Road with car parking for their customers at the front of their premises; (2) Harvey Norman had three loading bays along the access way; and (3) the main bays along the access way were occupied by Harvey Norman and Barbeques Galore, and of the two of those, Harvey Norman's bays were the busiest.[153]

1. It was open to the judge to find that the access way was at times crowded. There is no challenge to the findings that (1) the car parking bays and loading bays used by Harvey Norman could only be accessed from the access way; (2) the access way was of a limited width (7.44 m wide); (3) commercial vehicles of different sizes were loaded and unloaded in the area, sometimes by hand and often by forklift; (4) it was an area of ambient noise; (5) Mr Miloradovic had, at times, to wait to enter the access way because of the presence of other trucks, and this included, at times, waiting in O'Malley Street; and (6) on the day of the accident, Mr Gallagher could not find an available parking bay adjacent to the access way, and Mr Miloradovic's truck and trailer blocked the pick-up bay.

The blocking of access to the pick-up bay and service of Harvey Norman customers in the access way

1. These two findings are, to some extent, related. If there were evidence to support the finding of fact that customers were served in the access way from time to time, the inference would be open that this was because, at least in part, other vehicles blocked access to the pick-up bay from time to time. Also, if there were evidence to support the finding that access to the pick-up bay was blocked from time to time, such evidence could provide some support for the finding that Harvey Norman loaded customers' vehicles in the access way from time to time, given the absence of evidence of a system ensuring that did not occur. Also, it should be noted that Harvey Norman's submissions at [86] above effectively proceed on the premise that the pick-up bay was blocked from time to time at least by Miloradovic's truck and trailer combination, and from the use of the access way by one other vehicle known to Mr Uhrhane.
2. For the reasons which follow, there has been no successful challenge to the findings of either fact that access to the pick-up bay was blocked from time to time, and that from time to time, Harvey Norman loaded customers' vehicles in the access way. Moreover, it is the latter finding that is critical to the question of the existence of duty of care and breach in this case. Even if the former finding were not open on the evidence (although it is), a successful challenge to that finding of fact, without a successful challenge to the latter finding of fact, would have no bearing on the proper disposition of the appeal. The latter finding is an element of the circumstances giving rise to the duty and the breach; the former is not.
3. While, on the evidence, there is a degree of overstatement in the judge's observation that the loading bay was 'often' inaccessible,[154] it was open to the judge to infer that from time to time access to the pick-up bay was blocked. That is because (1) it was blocked by Mr Miloradovic on the day of the accident; (2) it was open to the judge to infer that Mr Miloradovic's usual routine involved him blocking access to the pick-up bay from time to time; (3) Mr Miloradovic was a regular user of the access way in that he delivered goods once a week and two to three times per week in busy seasonal periods; (4) the access way was crowded at times; (5) the judge was not bound to accept Mr Uhrhane's evidence on this topic, given that he regarded his evidence as equivocal, but in any event, aspects of Mr Uhrhane's evidence tended to indicate that, from time to time, albeit 'not normally' access to the pick-up bay was blocked;[155] and (6) the judge was not bound to infer from Mr Cramond's evidence that he did not remember seeing vehicles blocking the loading bay, that the bay was not blocked from time to time. Also, even though it may be accepted that the judge's reference to the 'whole of the evidence' (see [86] above) is unclear, the lack of clarity is irrelevant once it is accepted, as it should be, that it was open to the judge to find that access to the pick-up bay was blocked from time to time.
4. Again, the judge overstated the effect of the evidence in finding that there is evidence from Harvey Norman staff that they did serve customers parked in the access way.[156] Nonetheless, it was also open to the judge to find that from time to time Harvey Norman's staff loaded customers' cars in the access way. That is for the following reasons. First, Mr Matiu, called by Harvey Norman, gave evidence, in chief, to the effect that during his time with Harvey Norman, he had seen 'Harvey Norman people' loading goods in the access way rather than the pick-up bay.[157] Although he did not give (and was not asked by counsel for Harvey Norman or counsel for Mr Miloradovic to give) particulars of the frequency of that conduct, it is not apparent, from a review of the transcript of his evidence, that he was confining his evidence in that regard to some earlier, isolated or unusual occasion. Further, the judge was best placed to appreciate the tenor and import of the evidence viewed in the context of Mr Matiu's evidence as a whole.[158] It was open to the judge to treat the evidence as capable of supporting the finding that from time to time (and not, for example, on some earlier, isolated, occasion) Harvey Norman's staff loaded customers' cars in the access way.
5. Secondly, Mr Matiu's evidence that he had seen other Harvey Norman staff loading customers' vehicles in the access way was given in the context that Mr Matiu himself had loaded Mr Gallagher's vehicle in the access way on the day of the accident. In this context, it was open to infer that the effect of Mr Matiu's evidence was that he was not doing anything out of the ordinary on the day of the accident. Consistently with that, Mr Gallagher's evidence was that the staff member who assisted him (whom he did not name, but who was Mr Matiu) saw where Mr Gallagher was parked, offered to assist with loading and made no comment about where he had parked.[159]
6. Thirdly, given the (at times) busy nature of the access way, and the absence of any evidence of an instruction by Harvey Norman not to serve customers in the access way, it was open to infer that the service of a customer in the access way on the day of the accident was not an isolated occasion.
7. Fourthly, when Mr Uhrhane was asked, in examination-in-chief, whether there were any occasions when goods were loaded into a vehicle that was in the access way adjacent to the pick-up bay, his response was 'not normally, no'.[160] His evidence was to the effect that occasionally a small pick-up truck came for loading and was loaded in the access way, across the pick-up bay. Harvey Norman would use a forklift to load goods straight into this vehicle.[161] This indicates that Harvey Norman had no difficulty with, or saw nothing unusual in, loading goods for customers in the access bay.
8. Fifthly, Harvey Norman, in its submissions, accepts that 'there had been occasions' when Harvey Norman's staff loaded customers' vehicles in the access way.[162] Even if, as Harvey Norman contends, those occasions were rare and there was no evidence that on those earlier occasions there was an imminent risk of danger to the particular customer, those propositions do not detract from the finding of primary fact that from time to time Harvey Norman loaded customers' vehicles in the access way.

1. It was open to the judge to accept Mr Miloradovic's evidence as to his routine. The judge found him to be a credible witness.[163] Also, having reviewed the whole of his evidence,[164] and bearing in mind the advantages enjoyed by the trial judge,[165] it was open to the judge to conclude that Mr Miloradovic's evidence concerned his usual routine over a three-year period. Even if Mr Miloradovic was only referring to his routine whenever he had 'big loads' with a 'full truck',[166] there is no basis for this court to accept Harvey Norman's submission that such a routine had only been adopted in January 2015, as opposed to throughout the preceding three-year period whenever he had a big load with a full truck. Further, the judge correctly said (at [135]) that even if Mr Uhrhane had not himself observed Mr Miloradovic's routine, that did not prove the absence of the routine.
2. As to Harvey Norman's submissions referred to in [91] above, it may be accepted that the judge's misgivings (at [136]) about the plausibility of Mr Uhrhane's suggested explanation as to how Mr Miloradovic could have manoeuvred his vehicle, if not in the manner described by Mr Miloradovic, could carry little or no weight on the question of whether, in fact, Mr Miloradovic adopted the procedure which he said he did. The judge's findings at [137] - [139] are of greater cogency as reasons for preferring the evidence of Mr Miloradovic over the evidence of Mr Uhrhane where there was a conflict as to the procedure adopted by Mr Miloradovic. Nothing in any criticism made by Harvey Norman of the judge's findings at [137] - [139] alter the fundamental point that the judge was entitled to accept Mr Miloradovic's evidence concerning the procedure that he had routinely adopted for manoeuvring his truck and trailer combination, based on his Honour's assessment of the credibility of Mr Miloradovic as a witness.
3. Further, although the judge apparently overlooked (at [212]) his earlier acceptance, during closing submissions, that the failure to cross-examine Mr Miloradovic on his routine did not raise a 'Browne v Dunn point',[167] it is evident, from the primary decision read as a whole (and in particular at [210] - [211]) that the reference to a failure to cross-examine Mr Miloradovic was an additional, confirmatory, point, rather than the basis for the finding as to Mr Miloradovic's routine. The essential basis for the finding was his acceptance of Mr Miloradovic as a truthful witness who was 'describing his own routine and was familiar over the years of the way in which he discharged his duties in the access way on each occasion'.[168] Having heard and seen the witnesses, the judge was entitled to come to that conclusion.

Number of pick-ups from warehouse - 'at least' five or six a day

1. There is no error in the judge's reference to 'at least' five or six pick-ups per day on average. Although Mr Uhrhane did not use the words 'at least' in his evidence, it was open to the judge to find that, having regard to Mr Uhrhane's estimate, it could not be said that the average number of pick-ups was less than that. In any event, whether the average number was five or six, as opposed to at least five or six, Harvey Norman has not shown that the difference between the two estimates is material to the disposition of the appeal.

Difficulties associated with large vehicles

1. There is no error in the judge's finding that there were difficulties associated with large vehicles and, in particular, semi-trailers, using the access way. The access way was only 7.44 m wide. It was busy at times. It was an area in which commercial vehicles of different sizes were loaded and unloaded, sometimes by hand and often by forklift. Mr Uhrhane accepted that semi-trailers had to reverse out of the access way, even though he said that this occurred 'very rarely'.[169] Further, Mr Uhrhane took steps to arrange for Harvey Norman deliveries involving semi-trailers to occur early in the morning because at that time of day there were virtually no cars in the area.[170] That implies that he was aware of the difficulties that semi-trailers could cause to other users of the access way. That is so even if, as Harvey Norman contends, deliveries of that kind had occurred principally in the earlier years of Mr Uhrhane's tenure as manager. Also, Mr Uhrhane was aware of the truck and trailer combination driven by Mr Miloradovic, and was aware that Mr Miloradovic had to reverse out of the access way because (as Mr Uhrhane put it in evidence) 'he's got a big trailer on the back'.[171] Further, even if Mr Uhrhane was not personally aware of Mr Miloradovic's 'routine procedure' of positioning on the left first and then on the right in the access way, it was open to the judge to infer that Mr Miloradovic's need to reverse out of the access way with his large truck and trailer combination could create difficulties and hazards for other users of the access way.

Continual movements of Mr Miloradovic's truck

1. The judge's finding (at [203]) that 'Mr Uhrhane maintained [that] continual movements of [Mr Miloradovic's] truck were necessary because the forklift driver could not get access to whole side of the truck due to the vehicles parked either side of the unloading bay', appears to be a reference to Mr Uhrhane's evidence at ts 188 - 189. It may be accepted that the judge's reference to 'continual' movement was not an accurate reflection of the evidence in that passage read as a whole. But the point is immaterial once it is accepted, as it should be, that it was open to the judge to accept Mr Miloradovic's evidence as to his routine procedure.

1. There was evidence of a risk assessment applicable to traffic management in an environment such as the access way. It was the franchisor's traffic management plan. That document did contain various recommendations.[172]

1. In relation to whether Mr Uhrhane's knowledge may be imputed to Harvey Norman, the following observations may be made. Mr Uhrhane was the warehouse manager for Harvey Norman in the 14 years prior to the accident.[173] In the warehouse, there were, in addition to Mr Uhrhane as manager, a second in charge, three storemen and a 'GIR clerk'.[174] Mr Cramond, the sole director of Harvey Norman, said that the staff 'running and operating the warehouse' reported to him.[175] It may be inferred that Mr Uhrhane had a duty to report to, and was under the supervision of, Mr Cramond. In this context, it was open to the judge to conclude that Harvey Norman knew or ought to have known of the matters known to Mr Uhrhane concerning the loading and unloading activities of the warehouse staff under his management.[176]
2. Also, it was open to the judge to infer that the loading of customers' vehicles in the access way from time to time by the warehouse staff occurred with the approval, at least tacitly, of Mr Uhrhane who, as warehouse manager, had a duty to report to, and was under the supervision of, Mr Cramond. Accordingly, it was open to infer that the loading of customers' vehicles in the access way from time to time was a matter known to Harvey Norman or which Harvey Norman ought to have been aware. Again, that is the critical finding for present purposes. There has been no successful challenge to the finding of knowledge in relation to the fact referred to in [96.1] above.
3. Also, for the reasons given in [118] above, Mr Uhrhane knew of the matters referred to in [96.2] - [96.3] above. Those matters, which were relevant to whether Harvey Norman could safely load customers' vehicles in the access way, were relevant to his duties as warehouse manager and were, accordingly, matters of which Harvey Norman knew or ought to have been aware.
4. Also, as indicated in [118] above, Mr Uhrhane knew of the matters in [96.4] and [96.5] above, even if it is accepted that he did not know of Mr Miloradovic's 'routine' of positioning his vehicle, first on the left, and then secondly on the right of the access way. The findings of knowledge in relation to the matters in [96.4] and [96.5] inform the findings of knowledge in relation to the matters in [96.2] - [96.3], but the latter findings are not wholly dependent on such findings.
5. As Harvey Norman accepts, Mr Gallagher's presence in the access way on the day of the accident (see [96.7] above) was known to Mr Matiu. The significance of Mr Matiu's knowledge in this regard is that he knew Mr Gallagher to be a customer of Harvey Norman who was seeking to collect his goods. Mr Matiu's knowledge that Mr Gallagher was a customer of Harvey Norman is a matter which was relevant to the performance of his duties in the warehouse, and was, accordingly, a matter of which Harvey Norman knew or ought to have been aware.

1. The other matters (see [101] - [102] above) criticised by Harvey Norman go nowhere. The judge's reference to Harvey Norman not having made any material changes to its system does not bear upon the sufficiency of the evidence to support his findings of primary fact. Also, in relation to the matters in [102] above, there was no ground of appeal alleging that the judge should have recused himself on the ground of apprehended bias. The implicit criticisms of the judge appear, in that regard, to be gratuitous.
2. Accordingly, ground 1 should be dismissed. The findings of primary fact against which there has been no, or no successful, challenge include the following in relation to the state, nature and usage of the access way:[177]
   1. The access way was used by vehicles to pick up goods from, and deliver goods to Harvey Norman and Barbeques Galore in the Osborne Park commercial complex.
   2. The access way is 7.44 m wide, with loading bays and car parking bays on either side.
   3. The loading bays can only be accessed from the access way.
   4. The access way was not akin to a car park in a shopping centre, in that it was an area in which commercial vehicles of different sizes were loaded and unloaded, sometimes by hand and often by forklift.[178]
   5. The usage and busyness of the access way varied, depending on the time of day. At times it was crowded and various trucks for tenants were parked in the access way, blocking access to others for the purpose of unloading.
   6. The ambient noise in the access way could make it difficult to hear the approach of vehicles.
   7. Any person who did not have prior knowledge of the access way could reasonably assume, contrary to the fact, that vehicles would drive through to exit the access way, rather than drive back out to O'Malley Street.
   8. To the knowledge of Harvey Norman, on occasions large vehicles (including the truck and trailer combination used by Mr Miloradovic), reversed in the access way in order to exit the access way, as they had no other means of exit.
   9. To the knowledge of Harvey Norman, there was the potential for hazards to be created by large vehicles using the access way and, in particular, by their need to reverse out of the access way.
   10. To the knowledge of Harvey Norman, Harvey Norman from time to time loaded customers' vehicles in the access way, rather than in the pick-up bay.

1. In Sydney Water Corporation v Turano,[179] the High Court observed that reasonable foreseeability of the class of injury suffered by a plaintiff is an essential condition of the existence of a legal obligation to take care for the benefit of another. The concept of reasonable foreseeability is relevant at each of the three, related, stages of the analysis of liability in negligence: (1) the existence and scope of a duty of care; (2) breach of the duty; and (3) remoteness of damage. Their Honours continued:

At the first stage [ie, the duty stage], the inquiry has been said to involve the assessment of foreseeability conducted at 'a higher level of abstraction' than at the subsequent stages. However, to speak of a higher level of abstraction in dealing with that first stage does not support a formulation of duty in terms devoid of meaningful content. It remains, as Gleeson CJ observed in Tame v New South Wales, that the concept is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated. (emphasis added) (footnotes omitted)

1. Also, in Kuhl v Zurich Financial Services Australia Ltd,[180] French CJ and Gummow J observed:

Different classes of care may give rise to different problems in determining the nature or scope of a duty of care. In many cases a duty formulated as being one to take 'reasonable care' may suffice for the finding of duty in that particular case. Cases that involve the duty of a solicitor to his or her client to exercise professional skill in accordance with the retainer, the duty of a motorist towards other users of the road, or the duty owed by an occupier of land to an entrant with respect to the condition of the premises, ordinarily involve no real controversy over the scope and content of the duty of care; these are considered at the 'high level of abstraction' spoken of by Glass JA in Shirt v Wyong Shire Council. But where the relationship falls outside of a recognised relationship giving rise to a duty of care, or the circumstances of the case are such that the alleged negligent act or omission has little to do with that aspect of a recognised relationship which gives rise to a duty of care, a duty formulated at too high a level of abstraction may leave unanswered the critical questions respecting the content of the term 'reasonable' and hence the content of the duty of care. These are matters essential for the determination of this case, for without them the issue of breach cannot be decided. The appropriate level of specificity when formulating the scope and content of the duty will necessarily depend on the circumstances of the case. (emphasis added) (footnotes omitted)

1. In this case, the judge found, in effect, that there was no established relationship between Harvey Norman and Mr Gallagher of the kind in respect of which the law imposed a duty of care.[181] Although Mr Miloradovic in his cross-appeal effectively contends that the judge ought to have found that Harvey Norman was an occupier of the access way, that apart, neither party contends that the relationship of Harvey Norman and Mr Gallagher was within a recognised category of relationship by virtue of which the law imposed a duty of care.
2. Even in the case of injury to a person, foreseeability of physical harm is insufficient in and of itself to establish a duty of care.[182] Ordinarily, however, in the case of physical injury, the law recognises that those 'who are close enough in time and space to be at risk of injury from the actions of another are persons whom the latter should have in contemplation and, thus, are persons to whom a duty of care is owed'.[183] Speaking more generally (in the context of a case concerning economic loss), Gummow J observed in Perre v Apand Pty Ltd that in determining whether 'the relationship is so close that the duty of care arises', attention must be paid 'to the particular connections between the parties', and to isolating the 'salient features' of the relationship.[184]
3. Further, in Sullivan v Moody,[185] the High Court referred with evident approval to Lord Diplock's statement in Dorset Yacht Co Ltd v Home Office[186] to the effect that the judicial development of the law of negligence rightly proceeds by seeking first to identify the relevant characteristics that are common to the kinds of conduct and relationship between the parties which are involved in the case for decision, and the kinds of conduct and relationships which have been held in previous decisions of the courts to give rise to a duty of care.
4. Characteristics of a relationship which in the past have assumed some significance in the determination of the existence and content of a duty of care include (1) reliance by the plaintiff on the defendant;[187] (2) an assumption of responsibility by the defendant;[188] (3) the defendant's knowledge of and control over the conditions from which the risk of injury arises;[189] (4) the plaintiff's dependence on the defendant to exercise reasonable care in the defendant's undertaking;[190] (5) the vulnerability of the plaintiff to harm from the defendant's conduct;[191] and (6) the physical, geographical, and commercial propinquity of the parties, in the activities of each in which one suffered, and the other caused, the harm.[192] Some of these characteristics have been seen to be overlapping or corollaries of others.[193] Also, there has been some criticism as to the ultimate utility of at least some of these characteristics.[194]
5. Further, ordinarily the common law does not impose a duty on a person to take action where no positive conduct of that person has created a risk of injury to another person.[195]
6. In Sullivan,[196] the High Court also observed that different classes of case give rise to different problems in determining the existence and nature or scope of a duty of care. First, sometimes the problems are bound up with the harm suffered by the plaintiff as, for example, where its direct cause is the criminal conduct of some third party. Second, a difficulty may arise because the defendant is the repository of a statutory power or discretion. Third, there may be a difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Fourth, there may be concern for the need to preserve the coherence of other legal principles or of a statutory scheme which governs certain conduct or relationships. For the first example (the nature of the harm), the court referred to Modbury Triangle Shopping Centre Pty Ltd v Anzil; for the second (statutory powers), the court referred to Crimmins v Stevedoring Industry Finance Committee; for the third (indeterminate class), the court referred to Perre; and for the fourth (coherence), the court referred to Hill v Van Erp.[197]
7. Modbury, the case cited in relation to the first example (the nature of the harm), was a case in which the plaintiff was an employee of a store in a shopping centre complex. He was criminally assaulted by assailants late one night as he left the store. The assault occurred in the car park outside the store of which the landowner of the shopping centre was the occupier. The assault occurred at a time when the lights of the car park had been turned off by the landowner. It was held that the landowner's duty as an occupier of the land did not extend to taking reasonable care to prevent physical injury to the injured employee resulting from the criminal behaviour of third parties on that land.
8. In this case, Harvey Norman accepts that there was a foreseeable risk of injury to Mr Gallagher but, consistently with the authorities referred to in [131] above, contends that this was insufficient to create a du[198]of care.198
9. In this regard, Harvey Norman's contentions focus on the first of the issues referred to in [135] above, namely the nature of the harm suffered by Mr Gallagher. In substance, Harvey Norman's contention is that Mr Gallagher's injury was caused directly by the reckless driving of Mr Miloradovic, a third party. In that circumstance, it is alleged, Harvey Norman owed no duty of care to Mr Gallagher or, if there were a duty of care, its scope and content did not encompass a duty in relation to reckless driving by a t[199]d party.199 It is not contended that there is any difficulty in determining the existence or content of a duty of care by reference to issues such as the indeterminacy of the relevant class, or the need to preserve the coherence of other legal principles, or on the basis that any question of the exercise of statutory power arises.
10. The extent of any duty of care falls for consideration in relation to 'concrete facts arising from real life activities'.[200] In this case, the 'concrete facts from real life activities' included the following:
    1. The commercial and physical propinquity of the parties, arising from the supplier/customer relationship that existed between Harvey Norman and Mr Gallagher at the Osborne Park store.
    2. Harvey Norman, unlike its customers, was familiar with the conditions and usage of the access way adjacent to the pick-up bay.
    3. Customers were dependent or reliant on Harvey Norman providing services for the collection of goods purchased by the customer, including the provision by Harvey Norman of a safe place at which to collect bulky goods that had been purchased.
    4. Correspondingly, the manner and circumstances of collection of goods by customers were at the direction of, and effectively under the control of, Harvey Norman.
    5. The place designated by Harvey Norman for collection was at the pick-up bay, outside of the store, on the side of the access way.
    6. The facts referred to in [127] above.
11. In the circumstances referred to in [139] above, a reasonable person in Harvey Norman's position would foresee that unless it exercised reasonable care for the safety of its customers when collecting their goods, there was a risk of accidental injury to such persons in the course of having their goods being loaded, from the vehicular activity of other users of the access way.
12. Mr Gallagher was injured by accident by the vehicular activity of another user of the access way (Mr Miloradovic) in the course of his vehicle being loaded by Harvey Norman in the access way. In the language of the High Court in Turano, in the circumstances it is 'reasonable to require [Harvey Norman] to have in contemplation the risk of injury that had eventuated' to Mr Gallagher. It is not to the point that Mr Miloradovic drove his vehicle recklessly. An accident caused by reckless driving in this context remains, in the relevant sense, an accident. It is not analogous to the intentional assault by third parties which occasioned bodily injury to the plaintiff in Modbury.
13. It may also be noted here that counsel for Harvey Norman accepted that had the finding been that it was the regular practice of Harvey Norman to load customers' vehicles in the access way, there would be a duty of care owed by Harvey Norman, in the provision of the loading service, to use reasonable care to avoid a foreseeable risk of injury to customers. Counsel accepted that such practice would 'be active conduct, which would then be a causal factor in bringing the customer into an area of potential risk, through being struck by a vehicle'.[201]
14. Counsel for Harvey Norman sought to distinguish, in effect, however, between a (hypothetical) finding that it was the 'regular practice' of Harvey Norman to load customers' vehicles in the access way, and the finding made by his Honour that from 'time to time' Harvey Norman loaded customers' vehicles in the access way. Counsel said, in effect, that even if his challenge to the latter finding of fact were unsuccessful (which it has been), the latter finding 'still begs the question, 'well, how often did that happen?', and 'did it happen often enough to justify the imposition of a duty of care?'.[202] The distinction sought to be made by Harvey Norman is, in substance, a distinction without a difference. Whether there was a regular practice of loading customers' vehicles in the access way, or whether the loading of customers' vehicles in the access way occurred from time to time, in each case there is a foreseeable risk of injury created by Harvey Norman of the kind referred to in [140] above. Contrary to Harvey Norman's submission, the risk could not, viewed prospectively, be said to be so 'infinitesimally low' as to deny the existence of a duty of care in all the circumstances.
15. Accordingly, Harvey Norman had a duty to exercise reasonable care, or to take reasonable steps, to avoid a risk of harm to customers (including Mr Gallagher) collecting their goods from the pick-up area, namely the risk of those customers being struck by vehicles while doing so. Further or alternatively, expressed at a somewhat higher level of generality, Harvey Norman had a duty to exercise reasonable care to take steps to avoid a foreseeable risk of injury to its customers (including Mr Gallagher) arising from the place at which and circumstances under which customers of Harvey Norman were required to collect the goods they had purchased. These formulations of a duty are not materially different from the duty found by the judge (see [50] above). In any event, the existence of a duty is a quest[203] of law,203 and any difference between the formulations has no bearing on the ultimate disposition of the appeal.
16. Ground 2 should be dismissed.

1. Harvey Norman's submission to the effect that there was no breach because the (accepted) foreseeable risk was 'infinitesimally low' by reason of the concatenation of events referred to in [80] above, cannot be accepted.
2. It cannot reasonably be said, on the findings referred to in [139] above, that the risk of accident to a person standing in the access way collecting their goods was something less than not insignificant. It may be accepted that in most cases, users of the access way would exercise reasonable care for the safety of other users of the access way. Nevertheless, accidents, some involving mere momentary distraction, and some even involving recklessness, are a not insignificant risk in most areas where vehicles are moving around, particularly in a relatively confined space. Also, there is a real risk of serious injury if a person standing in the access way loading their vehicle is struck by another vehicle.
3. That conclusion is confirmed by, but not dependent upon, the further observation that the franchisor's traffic management plan, available to Harvey Norman but not obtained by it at the time of the incident, is capable of providing some, objective, contemporaneous evidence as to the nature and significance of the risk. The plan recognised the risk of injury to members of the public who are pedestrians in an environment where vehicles are reversing, loading and unloading, and that pedestrians were at the greatest risk if they were near vans, cars, trucks, trailers and forklifts involved in reversing, loading and unloading activities (see [39] above).
4. In relation to the criticism of the judge's reasons in relation to s 5B(1)(c) of the Civil Liability Act, namely whether a person in Harvey Norman's circumstances would have taken precautions against the foreseeable risk, the following observations may be made.
5. There is considerable force in Harvey Norman's complaint that the judge failed expressly and clearly to articulate the findings that he was required to make under s 5B(1)(c) and s 5B(2) of the Civil Liability Act. The proper application of s 5B(1)(c) did not permit the judge to embark upon a discursive consideration of the steps which Harvey Norman failed to take (see [49] and [58] - [59] above) without expressly identifying whether any or all of those matters were precautions which a reasonable person in Harvey Norman's position would have taken in response to the foreseeable and not insignificant risk of injury. The latter question required attention to the considerations listed in pars (a) - (d) of s 5B(2). Further (and this point emerges more from ground 4), having properly identified what precautions a reasonable person in Harvey Norman's position would have taken in the circumstances for the purposes of s 5B(1)(c) of the Civil Liability Act, the task of the judge was then to consider, separately, each of the identified precautions and make findings (one way or another) as to whether the failure to take the relevant precaution was causative of the plaintiff's injury. His Honour's reasons, with respect, tend to obscure, rather than illuminate, the findings which it was necessary for his Honour to make under s 5B and s 5D of the Civil Liability Act.
6. Nevertheless, whether on a given set of facts, negligence on the part of the defendant is established must be determined by an appellate court for itself, without the appellate restraint or deference that applies to discretionary decisions and to some evaluative decisions.[204]
7. At [232] of the primary decision, the judge found that Harvey Norman 'could' have minimised the risk to its customers attempting to collect goods from the pick-up bay 'by directing that its employees not serve or load customers' vehicles parked in the access way'. At a later point in the primary decision (at [278]), his Honour further said that Harvey Norman employees 'should' have been instructed not to load vehicles parked in the access way. It is open to construe, as we do, the judge's reasons as involving a finding to the effect that such a precaution is one which a reasonable person in Harvey Norman's circumstances would have taken in response to the foreseeable risk of injury to its customers.
8. Even if that construction of the reasons were wrong, in our view a reasonable person in Harvey Norman's position would have taken the precaution (within the meaning of s 5B(1)(c) of the Civil Liability Act) to direct its staff only to load customers' vehicles in the pick-up bay, and not to load customers' vehicles in the access way. On a proper application of s 5B(2) to the circumstances of the case, Harvey Norman's submission that the extent of the risk was so low that a reasonable person in its position would have done nothing more than it did (outlined in [81] above) cannot be accepted. As we have said, the risk of harm was not insignificant. The seriousness of the consequences of the materialisation of the risk of injury (viewed prospectively) counts strongly against Harvey Norman's submission. Harvey Norman did not suggest, and it could not be inferred, that a direction to staff in the terms outlined above would have involved any undue burden to it, or would have detracted from any social utility in Harvey Norman's provision of services to its customers.
9. For these reasons, ground 3 fails.

1. As presaged above, there is, again, much force in Harvey Norman's complaints in relation to the judge's failure to identify which particular precautions were causative of Mr Gallagher's injury in accordance with s 5C and s 5D of the Civil Liability Act. For example, it is doubtful that the placement of an 'orange cone', or the wearing of a 'high visibility vest', would have prevented Mr Miloradovic reversing into Mr Gallagher.[205] The judge did not undertake the relevant statutory task. Further, his Honour applied a test of whether there was a 'real and substantial possibility' of injury resulting from the breach (see [72] above), contrary to the balance of probabilities test in s 5D of the Civil Liability Act.
2. However, this court is in as good a position as the judge to infer causation on the basis of the primary facts found, the finding of duty referred to in [144] above, and the finding of breach referred to in [152] above. Had Harvey Norman directed its staff not to load customers' vehicles in the access way, it is properly to be inferred that the injury to Mr Gallagher would not have occurred. Counsel for Harvey Norman, in effect, conceded that such a direction would have[206]oided the incident.206
3. Accordingly, ground 4 should also be dismissed.

1. For the foregoing reasons, the appeal should be dismissed. It is unnecessary to deal with the merits of the cross-appeal which, in substance, was a notice of contention. Counsel for Mr Miloradovic accepted that if the appeal were dismissed, it would be unnecessary to deal with the cross-appeal.[207] As a matter of form, it too should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Miloradovic v Osborne Park Pty Ltd [2017] WADC 129.

[2] Primary decision [1], [4], [29].

[6] Primary decision [25], [45] - [46].

[8] The background is taken from the findings of fact made by the primary judge, unless otherwise indicated. The judge noted 'the limited scope of factual controversy between the parties' (primary decision [214]) largely because the actual circumstances leading up to and at the time of the incident were not in dispute. The judge summarised the CCTV recording capturing the incident (exhibit 5) in schedule A to the primary decision.

[10] Primary decision [162] - [164].

[11] Primary decision [234] - [238].

[18] Primary decision [228]. See also [96] - [97].

[19] Primary decision [71]. See also [26], [35] below.

[23] Primary decision [158] - [159], [177], [183], [186], [213].

[26] Primary decision [10], [42], [83] - [85], [215].

[29] Primary decision [86] - [87], [89].

[31] Primary decision [42], [133] - [135], [210].

[38] Primary decision [17], [28], [56].

[39] Primary decision [63] - [66], [217].

[44] Primary decision [20] - [21], [127].

[45] Primary decision [174], [229], [239].

[47] Primary decision [274] - [277].

[48] Primary decision [154] - [155].

[50] Primary decision [224] - [225].

[51] Primary decision [224], [226].

[53] Primary decision [35]; see also Mr Miloradovic's substituted statement of claim, pars 7, 18.1, 18.2, 18.6, 18.8; BB 70, 73.

[54] Primary decision [73], [130], [159].

[58] Primary decision [159], [177], [195], [213], [273].

[59] Primary decision [12], [194] - [195].

[60] Primary decision [197] - [198], [207].

[62] Primary decision [218], [273].

[63] Primary decision [12], [42], [93]. Mr Miloradovic's 'routine procedure' is referred to at [24] above.

[65] Primary decision [237], [240].

[72] Primary decision [159], [229].

[76] Primary decision [249], [260], cf [241].

[77] Primary decision [249], [260].

[79] Primary decision [255], [259].

[82] Primary decision [268] - [270].

[86] Primary decision [270] - [271].

[87] Primary decision [221], [231], [271(b)].

[92] Primary decision [223], [278].

[93] Primary decision [232], [278].

[94] Primary decision [231], [270].

[100] Primary decision [286] - [287].

[107] Primary decision [301] - [302].

[108] The ground does not identify the findings of fact said to be erroneous; compare pt 5 r 32(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA).

[110] Appellant's submissions, par 33; WB 17.

[111] Appellant's submissions, par 34; WB 17.

[112] Appellant's submissions, par 35; WB 17.

[113] Appellant's submissions, par 36; WB 17. See primary decision [295] where the judge dismissed this argument.

[114] Appellant's submissions, par 38; WB 18, citing primary decision [249] - [250], [260].

[115] Appellant's submissions, par 38; WB 18.

[116] Appellant's submissions, par 37; WB 17.

[117] Appellant's submissions, par 40; WB 18.

[118] Appellant's submissions, par 41; WB 18.

[119] Appeal ts 19, 23. See also appeal ts 29.

[120] Appellant's submissions, par 44; WB 19.

[121] Appellant's submissions, pars 46 - 48; WB 19.

[122] Appellant's submissions, par 51; WB 20, citing primary decision [267].

[123] Appellant's submissions, par 51; WB 20, citing primary decision [268].

[124] Appellant's submissions, pars 17 - 19; WB 12 - 13; see also appeal ts 37 - 38.

[126] Appellant's submissions, pars 58 - 59; WB 21.

[127] Appellant's written submissions, pars 3, 9 - 19; WB 6, 8 - 13.

[128] Appellant's submissions, par 9.1; WB 8; appellant's Practice Direction 7.4 schedule (appellant's schedule) WB 32.

[129] Appellant's submissions, par 9.6; WB 8.

[130] Appellant's submissions, par 9.4; WB 8.

[131] Appellant's submissions, par 9.9; WB 9; appellant's schedule WB 35.

[132] Appellant's submissions, pars 9.7, 9.10; WB 8 - 9; appellant's schedule WB 34.

[133] Appellant's submissions, par 10; WB 9.

[134] Appellant's submissions, par 13; WB 10.

[135] Appellant's submissions, par 15; WB 11; appellant's schedule WB 36 - 37.

[136] Appellant's submissions, pars 9.3, 14.2; WB 8 - 10; appellant's schedule WB 32.

[137] See ts 114, 311 - 312; Browne v Dunn (1893) 6 R 67 (HL).

[138] Appellant's submissions, pars 9.2, 14.2; WB 8, 10.

[139] Appellant's submissions, par 14.3; WB 11.

[140] Appellant's submissions, par 9.5; WB 8, reference is made to ts 186 - 187, 192 - 193; appellant's schedule WB 33.

[141] Appellant's submissions, par 9.8; WB 9.

[142] Appellant's submissions, par 9.11; WB 9; appellant's schedule WB 35 - 36.

[143] Appellant's written submissions, par 3; WB 6.

[144] Appellant's submissions, par 6; WB 7.

[145] Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 [41] - [43].

[146] Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173 [125].

[147] Nationwide News [40] - [41].

[148] Appellant's submissions, par 14.1; WB 10. See also appellant's schedule WB 26 - 27.

[149] Appellant's submissions, par 14.3; WB 11.

[150] Appellant's submissions, par 14.4; WB 11.

[151] Appellant's submissions, par 11; WB 9.

[152] Appellant's submissions, pars 7 - 8; WB 7 - 8.

[153] ts 68; primary decision [16], [165].

[155] Primary decision [183], [186], [197] - [198]; ts 180.

[156] Primary decision [126], [177], [213].

[157] ts 133; primary decision [158].

[158] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23]; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306 [90]; Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151 [51].

[162] Appellant's submissions, par 13; WB 10.

[163] See in this context Fox [23] - [25], [27] - [31]; Woodley v Woodley [2018] WASCA 149 [154].

[165] The judge heard the evidence as it was being given - unlike this court which is confined to the 'cold print of the transcript': Dobler [51].

[170] ts 187; primary decision [197] - [198].

[171] ts 186; primary decision [194].

[172] Primary decision [274] - [277]; GB 5 - 9.

[176] Nationwide News [40] - [42].

[177] See the judge's findings of fact summarised at [12] - [13], [16] - [18], [20], [48] above.

[178] Although there was some discussion in the appeal by the appellant about the significance of the presence of forklifts in the access way, there was no challenge to the finding of fact at primary decision [14] (appeal ts 10 - 11), and the appellant accepted that it does not challenge the finding that forklifts were used in the area of the access way (appeal ts 11, 16).

[179] Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51 [45].

[180] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [22]. These observations by French CJ and Gummow J were referred to by Murphy JA and Edelman J in Swick Nominees Pty Ltd v Leroi International Inc [No 2] [2015] WASCA 35; (2015) 48 WAR 376 [362].

[181] As to a number of the categories of relationship of this kind, see, for example, Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [27], [63].

[182] Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317 [12], [46], [250]; Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 [42]; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 [3], [72]; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 [35], [100], [137].

[183] Tame [46]. Cf Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 [70].

[184] Perre [198], [201]. French CJ and Gummow J also referred to the significance of the 'salient features' of the relationship in the context of a personal injuries case: Kuhl [20]. See also, generally, albeit in the context of economic loss, Swick [384] - [387], [391] - [392].

[185] Sullivan [51]. See also Crimmins [73].

[186] Dorset Yacht Co Ltd v Home Office [1970] UKHL 2; [1970] 2 All ER 294; [1970] AC 1004, 1058.

[187] Modbury [22]; Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159, 184, 186; The Council of the Shire of Sutherland v Heyman [1985] HCA 41; (1985) 157 CLR 424, 461 - 462, 466. But note the criticism of the statement in Heyman at 463 - 464 that in the case of a public authority, reasonable foreseeability of the plaintiff's reasonable reliance is a sufficient basis for finding a duty of care: Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330, 344, 370 - 371, 385, 427.

[188] Modbury [23] - [24]; Van Erp (183 - 185), (190), (210); Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 [63].

[189] Modbury [18], [29], [110] - [113], [140] - [141]; Van Erp (198 - 199), (234); Romeo [120]; cf Crimmins [276] (control over the activity of the plaintiff).

[191] Perre [118]; Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 [23].

[192] Perre [15], [410] - [411]; see also Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [99] (whether there is a 'close and direct relationship').

[193] Perre [37] - [38], [124] - [129]; Woolcock Street [24].

[194] See, eg, Van Erp (229 - 230); Crimmins [222].

[195] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [68].

[199] See appellant's submissions, pars 37, 40 - 41; WB 17 - 18; appeal ts 21.

[200] Perre [80]; Modbury [103]; Swick [363].

[203] Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, 581; Modbury [118].

[204] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551 - 552; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 [41] - [44]; Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205 [57].

[205] See primary decision [222], [231].