Rogers v Brambles [1996] QCA 437

At the time of the incident of which the appellant complains, he was driving the garbage truck along Bega Street, Nambour, approaching a house owned by people called Douglas; the appellant saw that Mr Douglas was "very, very close" when the appellant was "working towards his bin". When the appellant had emptied the bin before that of the Douglas residence, he moved the truck towards the Douglas bin. At that point an elderly lady, Mrs Piez, moved across the road from the right of the truck. Mr Douglas, who saw her moving, thought she did so intending to speak to the driver. She walked briskly across immediately in front of the truck and, unfortunately, her doing so coincided with the appellant moving the truck forward to get to the Douglas bin. It may be inferred that the reason the appellant did not see Mrs Piez before she reached the truck was that his attention was, at the relevant time, elsewhere; in any event, there is no issue of contributory negligence raised. When the incident complained of occurred, the appellant was as I have said in the left-hand seat of the truck cabin. What Mrs Piez did might well have been safe enough if the driver had been in the "ordinary" position - i.e. in the right-hand seat.

Mrs Piez' height - she was a short person - was such that she was not visible to the appellant when immediately in front of and close to the truck, a "forward control" vehicle. Unaware of her presence, he caused the vehicle to run over her, causing her death.

The appellant's reaction to this rather gruesome incident, including the sight of Mrs Piez' body, described as having been "squashed", and of the process of clearing it away, was to cause in him a serious stress disorder; he had psychiatric treatment before trial and more was said to be needed. The argument for the appellant as to liability concentrated principally on the question whether the respondent should have provided a mirror to enable the seated driver to observe the area immediately at the front of his vehicle; the appellant relied on the way in which the truck was operated - i.e. with numerous short forward movements, the driver having the necessity continually to turn his head to the rear, or otherwise watch the rear, in order precisely to position the truck to pick up bins, and to observe the picking-up process. There was evidence, although a little vague, that such a mirror as was proposed had been fitted in some similar circumstances; but the primary judge accepted the evidence of a Dr Grigg, an engineer called by the respondent, to the effect that such a mirror would not be very effective, that every vehicle has blind spots and that Dr Grigg had not personally seen any such mirrors fitted; he said they are "not normally fitted". Dr Grigg did not contest the proposition put forward by the appellant's expert, Mr King, that he had himself seen such mirrors as were proposed fixed to vehicles and that they had "been around" for some years.

The primary judge expressed himself to be very impressed with Dr Grigg's evidence and it is necessary to say more of it. Dr Grigg noted in his report that because of the noise the truck generates, a person wishing to attract the driver's attention (as Mrs Piez was apparently doing) would need to come close to make the driver hear. Dr Grigg said that a person of Mrs Piez' height, moving across the front of the truck while touching it (as Mrs Piez was said to have been doing) would not be visible to the driver seated in the truck, even if he was looking in the appropriate direction at the time. Dr Grigg thought a person "a foot or so taller" would have been seen. His opinion was that, if it was thought necessary to provide means "to observe or detect the presence of people or objects in the zones of obscurity", that could be done in several ways, one of which was the use of a mirror; he thought a convex mirror would probably be most effective.

Dr Grigg said it would be possible to locate one or more mirrors, either inside or outside the cabin, to enable the region in front of the windscreen to be observed. To avoid the problem that in other positions the mirror would not be within the normal field of view of the driver, it might be best, he thought, to put the mirror on the right-hand side, so that it could be viewed at the same time as the rear-view mirror on that side was viewed. But, apparently because the driver would not use such a mirror, his opinion was that it would not be very effective; Dr Grigg did not claim to have made a study of, nor to have any expertise in, the question whether drivers of trucks can be expected to use a special mirror, installed to enhance safety.

Somewhat irrelevantly, as it seems to me, Dr Grigg also expressed the view that a much less dangerous approach to the truck than that made by Mrs Piez to the truck could have been made; there was no issue as to whether or not Mrs Piez was negligent. Nor, with respect, is it easy to understand what ergonomics (which Dr Grigg discussed) had to do with Mrs Piez' death.

In his oral evidence, Dr Grigg elaborated on the views expressed in the report, but essentially adhered to them and in particular emphasised the possibility that if a mirror had been fitted it would not have been used by driver; he said he was "less than confident" that instructions to look at the mirror would have been carried out, although he was unaware of any studies relating to compliance rates. In support of this contention, Dr Grigg pointed out that some people still do not use seat belts. He accepted that such a mirror as was proposed would have enabled the appellant to detect Mrs Piez' presence and that it would have cost $20 to $30. Dr. Grigg pointed out that if the mirror were fitted, the driver still would not see a baby that crawled under the vehicle.

In my opinion, the main point of Dr Grigg's evidence (so far as relevant to the point being discussed) was his assertion that it was unlikely that, if fitted, a mirror would have been used; but it is not evident that he was in any better position than a lay person to assess the likelihood of the mirror's being used. The only specific argument he advanced in support of his view was that, as has been mentioned, some people still do not use seat belts.

The judge did not make any express finding on the question whether it was or was not probable that drivers would have used such a mirror as was proposed, but since he accepted Dr Grigg in toto, his Honour must be taken to have accepted that aspect of his evidence. The observations made by the learned primary judge which are most relevant to this point were as follows:-

"It seems to me a very dubious proposition that providing further mirrors would have added to the overall safety of the system of work."

"While technology may exist in the form of mirrors, automatic buzzers, movement sensors etc., there has been no successful practical application of the technology to the problem which combines reasonable effectiveness and practicality."

There was evidence that such mirrors as were spoken of had been seen in use. There was no evidence as to whether or not they had been effective in preventing accidents, but it does not appear to me that, because of the mere absence of such evidence, his Honour could reasonably have found that affixation of those mirrors was not successful, or impractical.

As has been mentioned, the appellant relied upon negligence as well as breach of statutory duty. As to the former, I shall at this point quote only part of the familiar passage from Council of the Shire of Wyong v. Shirt [1980] HCA 12; (1979) 146 C.L.R. 40 at 47, set out more extensively in the learned primary judge's reasons:

"The perception of the reasonable man's response [to a foreseeable risk of injury] calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have".

Here, the risk of occurrence of this precise sort of accident was clearly slight, in the sense that one would hardly expect an adult to come right up to the front of the vehicle, as Mrs Piez did. But this is not to say that the risk that a person might do so was insignificant or such as could properly be neglected. Mrs Piez was only about 5 feet tall, but of course many people, and in particular children, are as short or shorter and it is not difficult to envisage circumstances in which a short person might unexpectedly move very close to the front of a stationary truck, for example when chasing a ball or a dog.

And it seems clear that, although such an accident as occurred would be a rare event, if it took place the results were quite likely to be catastrophic - as they were in the present case. The extent of the risk must be judged against the factual background explained by Dr Grigg and the other witnesses. It is perhaps repetitive to say so, but it is important to note that this was; that the vehicle is noisy, so that a person wishing to speak to the driver might move close to the front of the truck, and more importantly that its ordinary operation involves numerous stops and starts and requires the driver continually to give close attention to the rear of the vehicle. It is not easy to think of any other one-man vehicle in common use, in respect of which there would be conditions so calculated to cause an accident of the type which occurred - i.e. running over a small person who happened to come close to the front of the truck.

It is necessary to return to this aspect of the matter, but first I find it convenient to discuss the action for breach of statutory duty.

The appellant relied on s. 9(1) of the Workplace Health and Safety Act 1989 (Q):

"An employer who fails to ensure the health and safety at work of all his employees, save where it is not practicable for him to do so, commits an offence against this Act".

Although the provision in its terms merely creates an offence, it was conceded, and I think correctly, that a civil action may be brought by persons damaged by failure to comply with the provision. Further, it was assumed in argument that such an action is available to an employee, although the damage he suffers is indirect, as here; I accept that also. The judge found that the respondent had proved the impracticability of the remedies proposed, including of course the mirror.

The word "practicable" is elaborately defined in s. 6(1) of the Act, and I set that definition out:-

" `practicable', where the context permits, means practicable having regard to -

(a) the nature of the employment or, as the case may be, the particular aspect of the employment concerned;

(b) the severity of any potential injury or harm to health or safety that may be involved, and the degree of risk that exists in relation thereto;

(c) the state of knowledge about the injury or harm to health or safety that may be involved, about the risk of that injury or harm to health or safety occurring and about any ways of preventing, removing or mitigating that injury, harm or risk;

(d) the availability and suitability of ways to prevent, remove or mitigate that injury or harm to health or safety or risk;

(e) whether the cost of preventing, removing or mitigating that injury or harm to health or safety or that risk is prohibitive in the circumstances; "

An important point taken by Mr Grant-Taylor for the appellant was that, so he submitted, the onus of proving impracticability of a suggested remedial measure lay upon the employer: Kingshott v. Goodyear Tyre & Rubber Co. Aust. Ltd (No. 2) (1987) 8 N.S.W.L.R. 707; the trial judge accepted that proposition. In that case a majority of the New South Wales Court of Appeal, consisting in Kirby P. and Priestly J.A., decided the question of onus under a rather similar statute in that State in favour of a plaintiff. In the course of discussing the point, Kirby P. referred to then recent decisions of the High Court as demonstrating the growing importance attached to the social purpose of such legislation as is in issue here and "the increasing expectations that may be demanded of a reasonably prudent employer". His Honour also said:

"Although an employee may be able to demonstrate, in very general terms, the costs and other aspects of suggested improvements in a means of access, clearly the person in the superior position to do so is the factory occupier. In most cases the worker can only offer evidence expressed in the most general terms about practicability . . . the employer and factory occupier will have at its disposal precisely the kind of information which the decision-maker needs in order to judge the issue of practicability . . . whilst these matters can sometimes be proved by a claimant worker, the means of knowledge is best found in the employer/factory occupier".

To some extent these points are illustrated by what occurred in the present case. The evidence showed the respondent to be a large commercial organisation with nationwide operations and it appeared to have some formal arrangements in place to ensure industrial safety; there was some evidence about a safety committee. A Mr W R Garland, described as a "central contract manager for Cleanaway" was asked whether Cleanaway - i.e. the respondent - had fitted any forward vision mirrors to its trucks. The answer was:

"No, not aware of - they discussed ways of solving the problem from in front of vehicles. From what I believe, there is not a lot available and mirrors can actually reflect sunlight back on you if they're in front of you. No, not that I'm aware of." (emphasis added).

None of the persons ("they") who had these discussions was called.

Mr Garland explained that a Trevor Williamson, a safety officer of the respondent, had conducted an investigation of the incident in which Mrs Piez was killed and prepared a report. Mr Williamson was not called and the report not tendered; the appellant's counsel attempted to tender it, but that was successfully resisted. Although one would have expected such an employer to have made a careful study of the risks associated with one-man operation of this type of vehicle (whose use was, at the relevant time, novel) and made an earnest attempt to reduce them, the respondent's evidence on this topic was oddly vague, and unsatisfactory. The only evidence in the record directly bearing upon the respondent employer's view as to the practicability of an extra mirror was that of Mr Garland just referred to, that some unnamed persons thought there might be a problem with sunshine. There was also the evidence (of doubtful admissibility) of Dr Grigg, that he was not confident that people would use such a mirror. If there was an onus on the respondent to prove impracticability, within the meaning of the statute, that evidence could hardly have sufficed.

The decision in Kingshott, if applicable to the Queensland Act (s. 9(1) of the Workplace Health and Safety Act 1989 (Q)), appears to me to lead to a reversal of the judgment in the present case. The correctness of the decision should in my view be accepted. The decision is consistent with that of the House of Lords in Nimmo v. Alexander Cowen & Sons [1968] A.C. 107. Both of these decisions - Kingshott and Nimmo - were distinguished by the High Court in Chugg v. Pacific Dunlop Limited [1990] HCA 41; (1990) 170 C.L.R. 249; the principal judgment discusses them but does not question their correctness (259, 260, 262).

"There shall so far as is reasonably practicable be provided and maintained in every factory safe means of access to every place at which any person has at any time to work".

The only distinction of any significance is that where our section says "save where it is not practicable for him to do so", the corresponding provision in Kingshott had "so far as is reasonable practicable"; I am of opinion that the relevant onus under the Queensland provisions is on the employer.

If the affixation of an extra mirror was "practicable", within the definition, it was in my view clearly a step which should have been taken "to ensure the health and safety at work" of employees, to quote the relevant section. It is my view that, the onus being on the employer, the scanty proofs offered could not suffice to show impracticability; so that the judge's conclusion on the issue of breach of statutory duty must be reversed.

In my view the appeal should also be allowed on the basis of the general law. Foreseeability of the incident in question was not in issue, nor was it disputed that had there been such a mirror as was proposed, and had that mirror been used, the presence of Mrs Piez would have been detected. The real questions were whether drivers in general, and the appellant in particular, would have used such a mirror.

As to drivers in general, there was no worthwhile evidence on the point, in my opinion; but let it be assumed in favour of the respondent that if a mirror showing the front of the truck had been suitably placed and proper instructions given, many drivers would not have bothered to look at it. Nevertheless, the relatively trivial expense of affixing a mirror would have advantaged those drivers who did use it and, of course, advantaged potential victims such as Mrs Piez. As to the other question, whether the plaintiff himself would have made a practice of using such a mirror, the appellant's counsel pointed to unchallenged evidence given by the appellant that his habit was to glance before starting off into a mirror on the right-hand side, giving a view to the rear, after a bin was picked up and dropped. The point of this evidence is that, according to Dr Grigg, the appropriate place in which to put a mirror showing the front of the vehicle would have been in the same area as an existing right-hand mirror. If that were done, it would not have been any extra trouble for the appellant to note what was shown in the extra mirror, displaying the area immediately in front of the truck. As Dr Grigg conceded, the driver would not have to move his head to see what was shown in the additional mirror. Further, there was no suggestion from the respondent that the appellant was a person disinclined to obey instructions, as to his mode of work. It should be added that the judge made no finding adverse to the appellant on this point - i.e. on the question whether it was likely that he (as opposed to drivers generally) would have used the postulated mirror, if it had been affixed.

In my view, it should be held that the respondent, had it properly examined the question, should have concluded that the use of such a mirror as was proposed would, at little expense and with no discernible disadvantage, have somewhat reduced the risk that a refuse truck driver operating solo would, when starting off after dropping a bin, drive into a small person immediately in front of the truck. Further, in my view it should be held that if such a mirror had been affixed and instructions that it be used properly promulgated, it was likely that the appellant would have made use of it and thereby avoided killing Mrs Piez.

I would therefore reverse the learned primary judge's view on the question of liability and hold that the respondent's breach of its duties of care for its employee made it liable for the disorder of which the appellant complained.

The primary judge held that the appellant suffered a post-traumatic stress disorder which became chronic; an early expectation that there would be a reasonably quick recovery was not fulfilled. The judge accepted that the appellant's personality was such as to make him vulnerable to the type of psychiatric disorder which followed from the accident. It was also held that the appellant was unlikely to return to truck driving in the future, particularly the driving of garbage trucks, and added, "He has good prospects though of full recovery now that the litigation is complete".

The sentence I have quoted was argued by Mr Grant-Taylor not to be based on any identifiable evidence and that appears to be so. In his report of 30 April 1993, Dr M Nothling, a psychiatrist, expressed the view that:

"Upon finalisation of his Workers' Compensation Board claim [the appellant] should, within a few months, be able to obtain alternative employment. However he may required to continue attending for psychiatric out-patient treatment for probably the next two years.

In my opinion it is unlikely that he would ever be able to work driving trucks again, but he is quite comfortable driving a car, where he has good visibility".

In a further report by Dr Nothling, dated 1 November 1994, he said that the appellant should have had more regular psychiatric treatment than he had previously received and strongly recommended that he seek out appropriate treatment. It was Dr Nothling's view that without it his condition would remain chronic, but that with treatment:

" . . . particularly following settlement of his litigation matters, it is probable that he should be able to return to the workforce within six to twelve months of settlement of the litigation matters".

He added that it was probable that the appellant would not return to driving trucks or any other vehicles vocationally again.

I have not been able to find, nor were we referred by Mr Campbell, for the respondent, to any evidence on which the judge's conclusion about "full recovery" quoted above might have been based. The learned primary judge referred in some detail to Dr Nothling's further report and did not suggest that he would not act upon it.

The judge assessed past economic loss in the sum of $61,770 plus interest. With respect to future loss his Honour said:

"Damages for future loss of earning capacity must take allowance of the fact that the plaintiff will return to work within six to twelve months. He will be subject though to a continuing disadvantage in that he is unlikely to return to garbage collection work in the future or truck driving in built-up areas".

His Honour assessed damages for future economic loss at $40,000.

One criticism, apart from that already mentioned, which was made of his Honour's approach was that Dr Nothling's report was not to the effect that the appellant would certainly return to work after psychiatric treatment, but merely said that he would probably do so. It was argued, correctly in my view, that allowance had to be made for the risk that he would not do so: Malec v. J.C. Hutton Pty Ltd [1990] HCA 20; (1990) 169 C.L.R. 638 at 642,-3. Further, Mr Grant-Taylor argued that his Honour had incorrectly stated the evidence relating to the appellant's likely driving future; Dr Nothling said that it was probable that the appellant would not return to driving trucks or any other vehicle vocationally again; the judge apparently acted on the view, as referred to above, that the problem related only to truck driving.

It was pointed out for the appellant that if he were unable to return to work at all, damages for future loss at the current weekly rate of loss would be in well excess of $300,000. Mr Campbell, in answer to these arguments, pointed out that the sum of $40,000 which was awarded significantly exceeded a loss of $435 per week (the then current loss) for a period of a year, so that the judge had made some allowance for a belated return to work.

It could not be said that in the circumstances I have explained the award of $40,000 for future economic loss was generous; but the question is whether it is appellably low. The assessment may perhaps be explained on the basis that, while generally accepting the psychiatric evidence, the judge took into account his own impressions of the appellant's future employability, gained from having seen and heard him; but this is essentially speculative, as the judge quoted and seemed content to act on Dr Nothling's views. It is impossible to be precise, but on the medical evidence the assessment of future economic loss seems too low; I would increase it to $60,000.

There remains a question of interest on the judgment; counsel for the appellant argued that, to ensure that interest was paid from the date of the District Court's judgment, this Court should back-date its judgment. In L Shaddock & Associates v. Council of the City of Parramatta [1982] HCA 59; (1983) 151 C.L.R. 590 a similar situation arose and the court met the problem by making an order in favour of the appellant under s. 94 of the Supreme Court Act 1970 (N.S.W.), which corresponds to s. 47 of the Supreme Court Act 1995 (Q). In the Shaddock case, what the court did was to augment the award of interest included in the primary judge's provisional assessment of damages - provisional because he had dismissed the action - so as to make that interest continue to accrue during the period between the dismissal of the suit and the judgment of the High Court. As to part of the judgment here, but not the whole of it, that could be done in the present case; there is an award of interest on past economic loss and travelling expenses.

The problem was further considered by the High Court in Nicol v. Allyacht Spars Pty Ltd [1988] HCA 48; (1988) 165 C.L.R. 306. Nicol failed in his action for damages for personal injuries in the Supreme Court, but was ultimately successful in the High Court and that Court added a sum, assessed on the same basis as in Shaddock - i.e. the interest component of the original assessment was enhanced to take account of the period between the initial and the High Court's judgment. The Court rejected the view that the High Court's judgment should bear the date of the original judgment. Nicol was considered by our Full Court in Schultz v. Official Trustee in Bankruptcy O.S. No. 551 of 1989 (140/1989); Connolly J. pointed out (p. 7) that there the High Court's judgment was not back-dated. It does not appear that this Court has any power to make the order sought by the appellant; see also Jorgensen v. Olive [1985] 2 Qd.R. 168.

Applying the High Court cases, the proper approach is to add interest at the same rate and on the same sums as in the original judgment. The calculation is taken to 30 April 1996. The interest in respect of past economic loss is $2011 and in respect of travelling expenses $17, making a total of $2028. Against that must be set a reduction of $7,340 which, Mr Grant-Taylor informed us, was necessary because the primary judge made double the proper allowance for superannuation loss; the result is a reduction of the judgment which would otherwise have been awarded, in the sum of $5,312.

3. Judgment for the appellant against the respondent in the sum of $129,216 with costs here and below.

I have had the benefit of reading the reasons for judgment prepared by Mr Justice Pincus. I respectfully disagree with his view that the claim at common law should have succeeded. I accept His Honour's statement of the facts. In respect of the common law claim, the following principles are relevant:-

(a) the relevant duty owed by the respondent as employer to the appellant as employee was "to take reasonable care to avoid exposing the employees to unnecessary risks of injury" (Hamilton v. Nuroof (W.A.) Pty Ltd [1956] HCA 42; (1956) 96 C.LR. 18 at p. 25).

(b) the elements to be proved by a successful plaintiff in a master and servant negligence action were stated by Mason J. (as he then was) in Raimondo v. State of South Australia (1979) 23 A.L.R. 513 at p. 518:-

"... the employer will not be liable unless it appears that he has failed to take measures or adopt means which were reasonably open to him and which would have eliminated or significantly reduced the element of danger (Neill v. NSW Fresh Food & Ice Pty Ltd [1963] HCA 4; [1963] A.L.R. 258; 108 C.L.R. 362 at 369; Vozza v. Tooth & Co. Ltd [1964] HCA 29; [1965] A.L.R. 196; 112 C.L.R. 316 at 319). And it has been held that (a) the degree of risk of an accident occurring; (b) the degree of injury likely to result from such an accident; and (c) the nature and extent of the remedial action suggested to be taken are all elements to be considered in deciding whether the employer is in breach of a duty to take reasonable care (Morris v. West Hartlepool Steam Navigation Co. Ltd [1956] A.C. 552 at 579; [1956] 1 All E.R. 385; Foufoulas v. Strang Pty Ltd [1970] HCA 26; (1970) 123 C.L.R. 168 at 172)."

(c) an employer is not an insurer of his employees against danger (Turner v. State of South Australia (1982) 42 A.L.R. 669 at p. 670 per Gibbs C.J.).

(d) Hindsight cannot be used by the Tribunal of fact in deciding whether the appellant was exposed to a risk of injury which by the exercise of reasonable care might have been foreseen and avoided. As Taylor J. said in Rae v. The Broken Hill Pty Co. Ltd [1957] HCA 33; (1957) 97 C.L.R. 419 at p. 430:-

"But in pursuing such an inquiry it is a simple matter to permit hindsight to take the place of foresight and to see, after the occurrence of an accident, that appropriate safeguards might have been provided which would have ensured safety. But, as has been said so many times, this is a completely erroneous approach to the problem."

In the present case the injury to the plaintiff was itself unusual and suffered in unusual circumstances. The first question is - what was the element of danger or risk of injury to the plaintiff in respect of which the employer, in discharging his duty to the plaintiff, was required to take measures or adopt means reasonably open to him to eliminate or significantly reduce? In answering this, one must first consider the extent of the risk of the truck colliding with a pedestrian because when one considers the degree of risk of an accident occurring in the particular manner in which it did occur in this case, the focus is first on the degree of risk of the truck colliding with the pedestrian.

Pincus J.A. considers the occurrence of "this precise sort of accident was clearly slight in the sense that one would hardly expect an adult to come right up in front of the vehicle as Mrs Piez did". He later described the accident as a "rare event".

In my respectful view the risk of the collision which occurred in this case was very slight and I agree the accident was a "rare event". Whether it was a risk foreseeable by the defendant respondent, I leave to one side for the moment.

Assuming the risk of the collision was foreseeable by the respondent - what was the degree of injury to the plaintiff likely to result from such a collision?

The learned trial judge found that it was reasonably foreseeable that the driver of the truck would suffer nervous shock from a serious accident involving a pedestrian.

However, the fact that the risk of the appellant suffering nervous shock was reasonably foreseeable does not answer in the appellant's favour the main question in this common law negligence claim - that is - was the collision between the pedestrian and the truck as it occurred in the circumstances of this case reasonably foreseeable?

In my respectful view, that question cannot be answered "Yes" unless one uses hindsight and that is impermissible. In Council of the Shire of Wyong v. Shirt [1980] HCA 12; (1980) 146 CLR 40 Mason J. said (at pp.47-8):-

"... when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

I find this case concerning the common law claim a worrying one. The risk of the appellant's injury was reasonably foreseeable. The appellant was the driver of the truck which ran over the pedestrian causing her injuries such that the sight of them induced post-traumatic stress syndrome in the appellant.

There is no suggestion of any negligence on the part of the appellant. He was under an obligation when driving the truck to exercise reasonable care towards other road users. One of these road users was Mrs Piez and the appellant did not see her until after the collision.

To succeed he must prove on the balance of probabilities that the respondent failed to exercise reasonable care for his safety and the matters referred to in Raimondo (supra).

The collision with the pedestrian did not necessarily result in danger or risk of injury to the appellant, seated as he was inside the cabin of this very up-to-date truck. The learned trial judge found the truck was of advanced design with visibility characteristics which were as good as, if not superior to, those other advanced designs on the market. The learned trial judge also found that the truck conformed to Traffic Act regulations, Australian design standards and other reputable industry practice. The evidence disclosed that all vehicles have a blind spot of some sort.

The respondent was obliged to take reasonable care to avoid exposing its employees to unnecessary risks of injury. The existence of the risk of the appellant suffering the particular injury he did suffer is not in issue. As Mason J. said in the above extract from Shirt's case the existence of a foreseeable risk of injury does not of itself dispose of the question of breach of duty.

I have concluded that in the circumstances of this case the common law claim can only succeed if hindsight is applied when answering the question whether the collision between the pedestrian and the truck as it occurred in the circumstances of this case, was reasonably foreseeable. The use of hindsight is not permissible. Furthermore, in my view, if in the particular circumstances of this case, the appellant succeeds in his common law claim the respondent will have been treated as an insurer of the appellant's safety.

I would dismiss the appeal insofar as that appeal is based on dismissal of the plaintiff's common law claim.

I turn now to the claim based on breach of statutory duty; s.9 of the Workplace Health and Safety Act 1989 says:-

"An employer who fails to ensure the health and safety at work of all his employees, save where it is not practicable for him to do so; commits an offence against this Act."

I agree with Pincus J.A. that a breach of this section may found a civil action at the suit of a person injured as a result of that breach.

I also agree with his view that the onus of proving impracticability of a suggested remedial measure lies on the defendant employer (Kingshott v. Goodyear Tyre and Rubber Co. Aust Ltd) No. 2 (1987) 8 NSW LR 707.

However, in my respectful view, before one can consider that onus in the present case, the appellant must first satisfy this Court that, leaving aside the matter of impracticability, on the evidence the respondent defendant did breach s.9.

The appellant bore the onus of proving that breach. The first matters are whether or not the section imposed an absolute liability on every employer and the meaning of "ensure". I say this because, (leaving aside the issue of impracticability) with all respect Pincus J.A. appears to have interpreted s.9 as imposing absolute liability on the respondent.

The section is not in form mandatory. For example, in Forrest v. John Mills himself Pty Ltd [1970] HCA 22; (1970) 121 CLR 149 the High Court considered a section of the Inspection of Machinery Acts 1951 to 1966 (Qld) which read:-

"Every part of any transmission machinery shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working with respect thereto as it would be if securely fenced."

"It is to be observed that the obligation to fence securely is absolute unless the machinery is as safe to a person working upon it as if it had been securely fenced."

As to what is meant by "absolute offence" the House of Lords in Sweet v. Parsley [1969] UKHL 1; (1970) AC 132 had to consider whether an offence created by a section of the Dangerous Drugs Act 1965 was an absolute offence. Lord Diplock, in his speech, said (at p.162):-

"The expression "absolute offence" used in the first question is an imprecise phrase currently used to describe an act for which the doer is subject to criminal sanctions even though when he did it he had no mens rea ..."

Another example of legislation which has been held to create an absolute duty on an employer appears in s.15 of the Occupational Health and Safety Act 1983 of New South Wales which relevantly read:-

"15(1) Every employer shall ensure the health safety and welfare at work of all his employees."

In Shannon v. Comalco Aluminium Limited (1986) 19 Industrial Reports 358 the Industrial Commission of New South Wales in Court Session (Fisher P. Cahill and Lynn JJ.) held that sub-s.15(1) created an absolute duty on the employer to ensure the health, safety and welfare of his employees at work.

In Carrington Slipways Pty Ltd v. Callaghan (1985) 11 IR 467 Watson J. of the Industrial Commission of New South Wales in a reasoned judgment held that the word "ensure" as used in sub-s.15(1) was to be construed in "its ordinary meaning of guaranteeing, securing or making certain".

Such a construction may be thought consistent with sub-s.15(1) being treated as having created an absolute offence.

However, in my respectful view s.9(1) of the Work Place Health & Safety Act 1989 does not create an absolute offence. The section requires proof that an employer failed to ensure... . The section is cast in a form completely different from s.15(1) of the comparable New South Wales Act.

In my view, an employer cannot be held to have "failed" under the section unless and until it is proved that the employer knew or ought to have known what it was that, in terms of the statute, he was required to do. In other words, if the appellant is to succeed under s.9 he must first demonstrate, on the evidence, knowledge in the respondent of the respondent's obligation to ensure the health and safety of the appellant at work. A person cannot "fail" to do something unless and until it is shown that he knows or ought to know what it is he is required to do. I pause to say by way of passing comment that in my view the provisions of Chapter V of the Criminal Code of Queensland apply to s.9 (see s.36 of the Criminal Code of Queensland). That the matter of knowledge is very relevant is confirmed by the definition of "practicable" in s.6(1) of the Workplace Health and Safety Act. Pincus J.A. has set out this definition in his reasons for judgment.

Thus, as the matter of knowledge in the respondent has to be proved, it is my view that, in order to succeed in his claim for breach of statutory duty the appellant must on the evidence in this case show that, in the circumstances of this case the respondent knew the respects in which it was said it had breached s.9.

Before considering the evidence on which the appellant relies I should say that in my view "ensure" in s.9 should not be construed in the same way as "ensure" was construed by Watson J. in Carrington Slipways. In Reliance Permanent Building Society v. Harwood-Stamper (1944) 1 Chancery 362 at p.373 Vaisey J. in considering the meaning of the word "ensure" in a statutory provision requiring that a Building Society shall "take reasonable care to ensure that the price is the best price which can reasonably be obtained" said:-

"The word "ensure" has puzzled me a good deal; I think it is used in the common and colloquial sense in which "making sure" is used that is as equivalent to ascertaining or satisfying oneself and does not mean anything in the nature of warranty or guarantee."

In my view "ensure" in s.9 should bear the meaning given by Vaisey J.

Since in my view, the offence created by s.9 is not to be treated as an absolute offence and therefore chapter V of the Criminal Code is not excluded, it must follow that an employer alleged to have breached s.9 is not obliged to guarantee the health and safety at work of all his employees. If that were not so, and s.9 is treated as creating an absolute offence, then in my view a plaintiff relying on a breach of s.9 could, simply by proving the injury at work, successfully discharge the burden of proof lying on him or her and then leave it to a defendant to establish, if he could, an exception from liability within one of the meanings of "practicable" found in the definition section of the Workplace Health & Safety Act.

I turn now to the question whether the evidence shows that the appellant has proved a breach by the respondent of s.9.

Particulars of the breach of s.9 are pleaded and they are the same as those pleaded in the common law claim.

The focus then is on whether or not on the evidence the respondent failed to ascertain or satisfy itself of the appellant's health and safety at work. Because in my view and for reasons already expressed the appellant bears the onus of proving knowledge in the respondent of the respects in which it is said the respondent breached s.9, one must turn to the pleadings.

Of the particulars pleaded, the appellant relied on particular 16(g) which read:-

"(g) Failing to fit the truck with a mirror or mirrors such as would have afforded the plaintiff a view of objects and activity immediately to the front, though below the windscreen level, of the truck;"

The appellant's argument focused on the provision of an extra mirror which, had it been in place and used by the appellant might well have enabled him to see any person who was right up against the front of the stationary truck but who was not tall enough to be otherwise seen by the appellant seated on the driver's seat and keeping a proper forward lookout.

The provision of such a mirror also concerned the "practicable" point in the exception in s.9 but before that exception is considered, I first consider whether the lack of such a mirror on this modern up to date vehicle constituted a breach of s.9. In my view it did not. The element of knowledge which the respondent must prove to establish a breach of s.9 is knowledge in the respondent which, in the circumstances of this case, demonstrates that the respondent failed to ascertain or satisfy itself of the appellant's health and safety at work.

The learned trial judge found that the truck was of advanced design with visibility characteristics which were as good as, if not superior to, those other advanced designs on the market and made other findings which I have already mentioned when discussing the common law claim.

In my view the element of knowledge in s.9 imports an element of reasonable foreseeability. A collision between the truck and a pedestrian was reasonably foreseeable so knowledge of such can be imputed to the respondent. But the injury to the appellant caused by such collision was in the circumstances of this case not reasonably foreseeable.

In my view hindsight cannot be used to justify in the circumstances of this case a finding that the respondent breached s.9. The circumstances in which the appellant was injured were rare and in my view do not amount to a failure by the respondent which constituted a breach of s.9. Until such a breach is established, it is in my view unnecessary to consider the exception "save where it is not practicable for him to do so." One only reaches that stage, where the burden then lies on the respondent, after the appellant has discharged the burden of proving the breach which lies on him. I have concluded that, for reasons already given, the appeal on liability should be dismissed.

On the matter of quantum, I agree with the reasons of Pincus J.A. as to the amount of the assessment of damages and interest.

In summary I would dismiss the appeal and order the appellant to pay one-half of the respondent's taxed costs of the appeal.

I agree that the appeal should be allowed and that orders should be made in the form proposed by Pincus J.A. I do so for the reasons given by Pincus J.A., which I have had the advantage of reading, and with which I agree.