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The District Court in Western Australia has made it clear in its decision of Miloradovic v Osborne Park Commercial Pty Ltd [2017] WADC 129, that employers owe a duty of care to their customers that extends beyond areas in their primary control and for which they are responsible.

Facts

A truck driver, the Defendant Mr Miloradovic, commenced third party proceedings against Harvey Norman franchisee, Osborne Park Commercial Pty Ltd, after accepting responsibility for the injuries caused to a customer, Mr Gallagher, who was crushed by his truck.

These proceedings related to a primary action in which Mr Miloradovic paid Mr Gallagher $865,000 in damages and costs for personal injuries. Mr Miloradovic sought a contribution to the judgment sum from the franchisee on the basis that it was also a tortfeasor and was liable in negligence to Mr Gallagher.

Immediately before the incident, Mr Miloradovic was parked on the left-hand side of a common use access way (used to service a number of commercial premises) adjacent to and blocking the Harvey Norman loading bay that Mr Gallagher had been directed to use. After one side of his truck had been unloaded, Mr Miloradovic’s normal routine (once per week for three years) was to reverse back before driving forward to park on the right-hand side of the access way, to unload the other side.

A Harvey Norman staff member directed Mr Gallagher to drive to the loading bay to collect his purchases and was being served there by another Harvey Norman employee. Mr Gallagher was not given any instructions or warnings regarding his personal safety or the obvious dangers in the vicinity of the loading bay or access way. As Mr Miloradovic had parked his truck blocking the Harvey Norman loading bay, Mr Gallagher parked behind him. While Mr Gallagher was loading goods into the rear of his car, without any warning or prior lookout, Mr Miloradovic got into his truck and reversed it, crushing Mr Gallagher between the two vehicles.

The decision

The issue was whether the franchisee owed a duty of care to Mr Gallagher to take reasonable steps to ensure he was not exposed to risk of injury while collecting his goods from the loading bay. The Court found that the franchisee did owe Mr Gallagher a duty of care because it directed him to the loading bay to collect his goods. Its employees were prepared to load his vehicle while it was parked in the access way, without any regard to inherent dangers.

Mr Miloradovic contended that s 5 of the Occupiers Liability Act 1985 (Liability Act) imposed a relevant duty of care on the franchisee. Judge Stevenson was satisfied that the franchisee had control over its loading bay, but was not persuaded that it had control over the access way for the purposes of the Liability Act.

Mr Miloradovic also contended that the franchisee owed a duty of care to Mr Gallagher under s 22 of the Occupational Safety and Health Act 1984 (the Act), however, the Court was not persuaded that the access way was a workplace for the purpose of the Act. The position would have been different if Mr Gallagher had been injured while parked in Harvey Norman’s loading bay, over which it had primary control and responsibility.

Breach of duty

There was no doubt that the risk of harm to Mr Gallagher in the loading bay or access way was foreseeable, given the multi-use purpose of the area and potentially conflicting traffic movements. The probability of a customer being injured in circumstances where Harvey Norman’s loading bay was inaccessible was not insignificant and any reasonable store owner in Harvey Norman’s position would have taken precautions against any risk of harm to customers.

Apportionment

The franchisee was ordered to contribute 25% of the $865,000 judgment sum because it owed Mr Gallagher a common law duty of care that was breached, and together with the negligence of Mr Miloradovic, caused his injuries.

Judge Stevenson found that the franchisee could have taken precautions to minimise risk of injury by warning Mr Gallagher about the truck or by acting as a look-out and implementing appropriate risk assessments and traffic management plans that would have identified the obvious risks.

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