McLeod v Mainfreight Distribution Pty Ltd (ACN 003 840 319)
[2020] VCC 2012
•17 December 2020 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-18-04987
| MATTHEW RHYS MCLEOD | Plaintiff |
| v | |
| MAINFREIGHT DISTRIBUTION PTY LTD (ACN 003 840 319) | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 15, 16, 17, 18. 19 and 22 June 2020 | |
DATE OF JUDGMENT: | 17 December 2020 (Revised) | |
CASE MAY BE CITED AS: | McLeod v Mainfreight Distribution Pty Ltd (ACN 003 840 319) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2012 | |
REASONS FOR JUDGMENT
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Subject: NEGLIGENCE
Catchwords: Negligence – causation – duty of care – foreseeable risk of injury
Legislation Cited: Wrongs Act 1958; Occupational Health and Safety Regulations 2007
Cases Cited: McLean v Tedman & Brambles Holdings Limited (1984) 155 CLR 306; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Stevens vBrodribb Sawmilling Company Pty Ltd (1985-1986) 160 CLR 16; Victorian WorkCover Authority v O’Brien & Ors [2017] VSC 39
Judgment: Claim dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Ms L Burke | Zaparas Law |
| For the Defendant | Mr I D McDonald SC with Mr D Churilov | Hall & Wilcox |
HER HONOUR:
1 The plaintiff, Matthew McLeod, was employed by Mainfreight Distribution Pty Ltd, the defendant, from 2002 until 18 December 2015 in various roles. From 1 August 2007, the plaintiff was the operations manager of Chemcouriers, a division of the defendant, at its warehouse in Centre Road, Clayton (“the premises”).
2 The plaintiff was known to have good information technology skills.[1] By the time of the injury/incident, the plaintiff was a well-regarded employee of the defendant.
[1]Transcript (“T”) 305, Line (“L”) 25 – T306, L3
3 On 26 September 2014, the plaintiff alleges he was injured when he was called out onto the warehouse floor by a co-worker, Mr Aspinall, who required assistance in the use of an iPad. While assisting Mr Aspinall, the plaintiff heard from behind, a tug, pulling a trailer, blowing its horn. The plaintiff said his attention was drawn to a parked red forklift which was partly blocking the area designated for the parking of the B-double trailer to be loaded by the PM shift. The truck bay was marked by a yellow painted rectangle on the floor. At the time, the plaintiff did not know who had parked the red forklift, but at trial, his evidence was that he was now aware Mr Aspinall was responsible for the red forklift. The plaintiff went to move the forklift, and while walking backwards in the direction of the red forklift, overlooked a pallet, onto which he fell backwards, suffering injury.
4 The plaintiff claims damages for pain and suffering and loss of earning capacity in relation to his resultant injuries.
5 The plaintiff’s case was based on ten allegations of negligence against the defendant. In summary, the defendant owed the plaintiff a non-delegable duty to take reasonable care to avoid exposing him to unnecessary risks of injury. That duty included the provision of a reasonable safe place of work, system of work and competent fellow employees. The plaintiff says the defendant breached its duty, such breach being a cause of his injury, loss and damage. The plaintiff relies upon the following particulars of negligence:
“(a)Failing to implement and/or enforce a loading, unloading exclusion zone (‘LUEZ’) within the warehouse;
(b)Failing to implement and/or enforce LUEZ rules:
(c)Parking the forklift in an area designated for trucks and trailers;
(d)Leaving or causing to be left the forklift in an area designated for the loading and unloading of trailers when the Defendant and/or its employees and agents knew or ought to have known that trailers were to be parked in that area and thereby creating a sudden distraction and resultant danger of injury;
(e)By requiring, permitting or allowing deposited pallets, pedestrians, forklifts and delivery trucks to be in or move into the same area of floor of the warehouse at the same time, creating a risk of tripping and falling;
(f)Failing to institute and/or maintain a or any proper system for ensuring forklifts were not parked in trailer bays;
(g)Failing to institute, implement and/or enforce compliance with a traffic management plan for the floor of the warehouse such that trucks, forklifts, pedestrians and pallets of goods could not converge on the one area at the one time;
(h)Having pallets on the warehouse floor which were tripping hazards in the vicinity of a designated truck and trailer loading area;
(i)Failing to have separate and clearly designated areas for forklifts, trucks and trailers, pedestrians, and/or pallets, and/or failing to enforce any such designated areas; and
(j)Failing to enforce the defendant’s purported policies and procedures on traffic management.”[2]
[2]See the Particulars set out in the plaintiff’s Further Amended Statement of Claim dated 15 June 2020
6 The defendant admits it owed a non-delegable duty to take reasonable care to avoid exposing the plaintiff, as its employee, to unnecessary risks of injury, but otherwise denies negligence. The defendant said that the nature and extent of the duty was in issue. Counsel for the defendant submitted that while it owed a general duty of care to the plaintiff as its employee, that duty was to take reasonable steps to protect the plaintiff from a reasonably foreseeable risk of injury, of the type that actually eventuated. Counsel submitted that in these circumstances, the risk of injury to the plaintiff that eventuated was not reasonably foreseeable; that is, that the plaintiff would trip over a pallet when moving backwards toward the forklift, in order to move it.
7 Further, the defendant says there was no breach of duty because there was nothing a reasonable employer would have done to avoid the risk of injury, other than to advise the plaintiff to keep a proper lookout when walking about the premises. Further, it was not negligent to check the CNUDs (Consignment Note Un-Delivered) in the staging area before transferring them to the Mainfreight timeslot and/or the CNUD bay, but common commercial sense and accepted practice.
8 It was not negligent for Mr Aspinall to temporarily park his forklift (the red forklift) where he did, as it was an active work zone used by forklifts as required. The requirement was to move it to another spot, if necessary. This constituted a minor inconvenience, but not negligence.
9 In addition, the parking of the red forklift was an incident which precedes the plaintiff’s fall. The position where the red forklift was parked not the cause of the plaintiff’s injury.
10 Further, any alleged breach of duty was not causally related to the injuries sustained by the plaintiff. The real cause of the plaintiff’s injuries was his own (admitted) casual act of negligence.
11 The defendant says that if the plaintiff’s case is accepted, then a significant proportion of liability should be apportioned against the plaintiff by way of contributory negligence, in that he failed to take reasonable care for his own safety by keeping a proper lookout; walking backwards without looking, and in his capacity as a senior manager, failing to move or have moved by Mr Aspinall either the red forklift and/or the pallets in the staging area when he arrived at the scene.
Witnesses and the evidence adduced at trial
12 The plaintiff gave viva voce evidence and was cross-examined. The plaintiff also relied on the lay evidence of Ms Sue Rexter, and Ms Chloe McLeod, the plaintiff’s daughter. In addition, the plaintiff relied on the expert evidence given by Mr Edward Dohrmann, qualified engineer and certified professional ergonomist.
13 The evidence of Ms Rexter and Ms McLeod did not relate to liability evidence.
14 The defendant called two witnesses, Mr Brian Aspinall, an employee of Mainfreight Distributions Pty Ltd since September 1993, who moved to Chemcouriers in 2011 as a foreman in the AM operations, and Mr Jason Kennedy, branch manager of Chemcouriers. The defendant relied on the expert evidence of Dr John Culvenor, consultant in engineering, specialist in public health and safety, ergonomics.
15 The incident in which the plaintiff was injured was recorded on three film clips by closed circuit television[3] from different angles, which were tendered and shown to the Court.
[3]Exhibit C
16 In addition, both parties tendered a range of documents including affidavit material, expert reports, medical reports, vocational reports, clinical records, emails and interrogatories. I have read all tendered material.
Background of the Plaintiff
17 The plaintiff is aged forty-one years. He completed high school at Doveton Secondary College. After completing his VCE, he completed a Certificate IV in Information Technology. He commenced, but did not complete, a Diploma in Information Technology.
18 In 2002, the plaintiff commenced casual employment with the defendant, working in the warehouse. By 2004, he became a full-time employee. On 1 July 2007, he was appointed fleet controller. Prior to that, he had been a forklift driver on the afternoon shift working with Mr Brian Aspinall. On 1 August 2007, effective from that date, the plaintiff was promoted to PM Operations Manager. The plaintiff was known to have good information technology skills.[4] The plaintiff was a highly regarded employee who would go out of his way to assist others where necessary.[5]
[4]T305, L25 – T306, L3
[5]T334, L25-31
19 It was not in dispute that the plaintiff injured his right knee in about mid 2014. He had a right knee internal derangement with unstable femoral trochlear chondral flap. It was surgically repaired by way of an arthroscopy in July 2014. He took time off work to recover from his surgery. By the time of his injury, the subject of this proceeding, the plaintiff had returned to full-time duties. The plaintiff had a history of gout, left ankle problems and asthma.
The CCTV footage
20 The incident was recorded on three film clips by closed circuit television[6] from different angles, which were tendered and shown to the Court. The film clips showed the plaintiff proceeded to the area in the warehouse via a grey forklift. He drove past the red forklift partially blocking the area designated by a yellow painted rectangle on the warehouse floor and past pallets placed on the warehouse floor to the left of the yellow rectangle. The plaintiff reversed the grey forklift, parked it nearby[7] and walked to a man he identified as Mr Aspinall, who he talked to about the iPad.[8] The plaintiff was seen to hold the iPad. The tug entered the warehouse pulling a trailer, which the plaintiff said was to be parked in the trailer area for the purpose of loading by the PM shift. The plaintiff was seen to hand the iPad to Mr Aspinall. The plaintiff was facing Mr Aspinall, was observed to move backwards and fall onto an object which he identified as a pallet. He sat on the pallet, got up and went to move the red forklift, then was observed to drive away in the grey forklift.
[6]Exhibit C
[7]The plaintiff parked the grey forklift along the divide in the warehouse
[8]T25, L14-16
The Plaintiff’s evidence
21 The plaintiff was employed by the defendant. He had sworn two affidavits on 15 March 2016 and another in 2018 at an earlier stage in the proceeding, which he adopted with some minor amendments.
22 The plaintiff’s evidence was that on 26 September 2014, at the end of the AM shift, he was in the office and was called out onto the warehouse floor by Mr Aspinall, a fellow employee, who required assistance in the use of an iPad. Mr Aspinall was in the CNUD process, which records any freight that had not been delivered on the day of receipt. The freight was consolidated into a bay which was called the CNUD bay.
23 The plaintiff said the CNUD process of recording the freight had been done in the past by paper. They were in the process of doing it electronically with the use of an iPad. He was familiar with the electronic side of the operation of the business. The plaintiff said, as operations manager, he spent fifty per cent of his time in the office and the other fifty per cent on the warehouse floor. At the time, he was spending more time on the warehouse floor.
24 The plaintiff was shown the three tendered films which recorded the accident on CCTV footage from a number of different angles.[9] The first clip ran for about 5 minutes, the second for 16 seconds and the third for 30 seconds.
[9]Exhibit C
The first clip
25 The first clip of 5 minutes was shown to the Court. The plaintiff identified an employee, Steve Cordell, sweeping an area of the warehouse floor.
26 The plaintiff identified Mr Aspinall, wearing a yellow jacket, on the warehouse floor. The plaintiff confirmed that he drove a grey forklift from the office to the warehouse area where Mr Aspinall was working. He reversed his forklift to park it along the divide in the warehouse. The plaintiff was seen in conversation with Mr Aspinall.
27 The plaintiff identified yellow lines marked on the floor of the warehouse as truck parking bays. A truck was seen coming into the warehouse. The plaintiff said the driver was bringing in a trailer to be loaded by the PM shift.
28 The plaintiff said the tug was driven by Jason Gobaz. As he brought the trailer in, he started to blow his horn, which alerted the plaintiff to the fact, first, he was coming into the depot, and, second, the red forklift was parked in the area where he was having to park the trailer. So, instinctively, the plaintiff said he handed the iPad back to Mr Aspinall and went to move the red forklift out of the way.
29 The plaintiff said the red forklift should not have been parked in the truck area and a more suitable place to park the forklift would have been where the other forklifts were parked out of the way of traffic.
30 The plaintiff said the accident occurred before he moved the red forklift out of the way of the tug. The plaintiff said he handed the iPad back to Mr Aspinall and he moved towards the red forklift and did not see a pallet behind him.
31 The first clip did not clearly show the accident due to a time lapse in the recording.
32 The plaintiff said he drove the grey forklift back to the office. He was in considerable pain. He said, in relation to parking forklifts, there was no area where forklifts were to be parked. It was a habit of parking them out of the area, out of the way of either traffic or traffic movement.
33 The plaintiff said he drove his forklift back to the office in agony. He said it was a blur and from the time he fell on the pallet, he was in intense pain. He lay on the office floor for approximately 15-20 minutes. He was unable to drive himself home.
34 The plaintiff identified on the film a forklift picking up the pallet he had tripped over. He believed the forklift driver would have been taking it to the CNUD bay near the office. He believed that other pallets would have been taken to the same area.[10]
[10]T22-29
The second clip
35 The second film of 16 seconds was shown to the Court. The film showed the tripping incident more clearly. The plaintiff said, at the time he moved towards the forklift, he was not aware of the pallet behind him.[11]
[11]T30, L6-8
36 The plaintiff said all the pallets should have been placed in the CNUD area before they were checked off.[12]
[12]T30, L9-11
37 The plaintiff described the movement he made when going to move the red forklift as:
A:“Yeah, to describe it, the best way I could describe it is as I was handing the iPad back and sort of finishing explaining to Brian, I’ve gone then to walk towards the forklift while still talking to Brian and I’ve just caught the side of it, but as I have fallen - I haven’t actually fallen onto the ground, I’ve more fallen to the side of the pallet and unfortunately used my right leg to brace my weight, to stop me falling off, and I’ve come to a - basically a seating position on top of the pallet. And so from there it was - I’ve just sort of grabbed my leg in pain and it - whether it was the bearing of the weight or I have twisted it, I’m not 100 per cent sure. It was all in that one quick process. I was standing back and just tripping over the side of the pallet.
Q:So you were then able to get onto the forklift which was blocking the truck’s way and move it?---
A:Yeah, I was in absolute agony but I managed to sort of pull myself up on that with adrenaline going. I’ve moved it, tried to sort of (indistinct) that forklift and then stood there for a bit of time sort of in agony holding my knee.”[13]
[13]T30, L18 – T31, L7
The third clip
38 The plaintiff was shown the third film of 30 seconds.
39 The plaintiff evidence was:
Q:“So we see the two of you in conversation - - -?---
A:Yeah, Brian.
Q:- - - with the truck rapidly approaching?---
A:Yep.
Q:You in that seated position, and then into the orange forklift and backing it away?---
A:And I’ll buzz in and off.
Q:What are you experiencing now?---
A:Yeah, that’s when I’m just in absolute agony and I was just feeling nauseous. It was, yeah, pretty uncomfortable.”[14]
[14]T31, L11-18
40 The plaintiff said it was a common occurrence for forklifts to be parked in trailer bays. There were time restrictions on getting deliveries out of the depot and generally, you kept your forklift close so it would not be taken.
41 In cross-examination, the plaintiff said he was employed by the defendant, which is involved with bringing freight from interstate into the Clayton depot. The freight is broken down and reloaded onto trucks for local delivery throughout metropolitan and regional Victoria. In the afternoon, the process is reversed. The local trucks arrive at the Clayton depot with loads that they have picked up. They are unloaded and pallets are reloaded onto interstate trucks which leave for the overnight run.[15]
[15]T39
42 Chemcouriers was a smaller division of the defendant and specialises in the transportation of dangerous goods. He was employed as the operations manager. The plaintiff agreed that in this role, he was required to oversee all the aspects of the business. He was responsible for the induction of drivers and the operational team members, including forklift drivers. He was responsible for adherence to all operational matters. The plaintiff agreed that included Mr Aspinall, who reported to him.[16]
[16]T43
43 In cross-examination, the plaintiff said the incident occurred midway through the AM shift. The interstate deliveries had been unloaded, then loaded onto the local trucks for local deliveries. The freight that is left is recorded as the CNUDs to prioritise its delivery for the next day and the data is uploaded to the customer support team who can tell customers when it will be delivered.[17] The plaintiff agreed the red forklift was in use by Mr Aspinall. He agreed that Mr Aspinall had to get off his forklift to move around the pallets to enter the data or barcode from each pallet into the iPad.[18]
[17]T66
[18]T67
44 The plaintiff confirmed that CNUDs were placed in the same or similar spots on the warehouse floor, as depicted in the CCTV footage shown in court. He disagreed that CNUDs were left in that location because the next available truck which the CNUDs would be loaded on to would not be until the next day and these bays were utilised for the PM shift.[19]
[19]T68-69
45 The plaintiff agreed the forklifts could be parked in the warehouse, provided they were not parked in pedestrian walkways.[20]
[20]T71
46 The plaintiff agreed that between 12.00pm and I.00pm, empty trailers were brought into the warehouse and parked. The trailers were pulled by a tug (a specific vehicle for pulling trailers). The trailers were parked in the premises. If a forklift was in the way, the forklift driver or the tug driver would move the forklift. The yellow lines on the floor of the warehouse are to mark areas allocated for parking trailers.[21]
[21]T71-72
47 The plaintiff confirmed that the driver of the tug was familiar with the depot.[22] He agreed that the tug driver had come to a complete halt before the plaintiff had moved in the direction of the red forklift.[23]
[22]T88
[23]T88, L30 – T89, L2
48 The plaintiff agreed that apart from a forklift at the entrance to the warehouse which had stopped, the tug was the only vehicle moving in a very large warehouse space. He agreed it would not be described as chaos and was not a chaotic scene. There was a forklift that stopped for the trailer to move. He agreed it would be a temporary delay and was a routine scene:[24]
Q:“But in any event, the trailer has come to a complete halt, hasn’t it before…?---
A:Yeah, it would have come to a stop, yep.”
[24]T89, L13 – T90, L4
49 The plaintiff agreed the tug was not about to crash into the forklift and that it had come to a halt when the plaintiff started to move in the direction of the forklift in order to move it:
Q:“Yes, and at this stage between you and the forklift we see the fawn-coloured pallet sitting on the ground immediately behind you?---
A:Yeah, correct, yeah.
Q:Yes, and what happens thereafter - and I think we will see this clearer in the next couple of videos - - -?---
A:Yeah.
Q:- - - is that - what has happened is you have handed the iPad back to Brian?---
A:Correct.
Q:Yes, and then you walk backwards in the direction of the red forklift?---
A:Correct.
Q:And you didn’t turn around to look where you were going, did you?---
A:No, I was still instructing Brian.
Q:All right. And you didn’t look down to see what might be behind you on the ground?---
A:No.
Q:No. You simply forgot about the presence of the forklift in that particular moment?---
A:Yeah - the pallets, the pallets. Yeah.
Q:Yes?---
A:Correct.
Q:Yes. And when you moved back, your - one of your feet hit the pallets. Can you remember which one struck it at first instance?---
A:No, I can’t recall exactly. It’s very much a blur - sort of what happened with the fall and such. I just remember falling and sitting onto the pallet. I’m not su[r]e how I got caught, but bent it all the way to my right leg and ended up sitting on the pallet, yeah. I’m not sure how I caught it.
Q:Yes, that’s right. You have walked backwards?---
A:Yeah.
Q:One of your legs - you can’t remember which - - -?---
A:No.
Q:- - - had contacted the pallet, that acts as sort of a tripping force - - -?---
A:Yeah.
Q:- - - with your momentum - - -?---
A:Correct.
Q:- - - and effectively you sit down on the pallet. Yes?---
A:Correct.”[25]
[25]T90, L13 – T91, L13
50 In 2016, the plaintiff swore an affidavit and said:
“… there was a forklift left in the loading area where the truck had to be parked. As I was still speaking to a colleague, I started to walk backwards towards the forklift to move it and I fell over a pallet which was approximately 60cm high. As I walked backwards I fell because a pallet was on the floor. I do not know who put the pallet in position, but I do know that it was not supposed to be there.”[26]
[26]Exhibit B, Plaintiff’s Court Book (“PCB”) 8
51 In cross-examination, the plaintiff stated:
Q:“So what we see - there is a gap there then between the immediate aftermath of the accident and what happened two seconds later. Would that be right?---
A:It wasn’t a great deal of time. I fell on the pallet, I wasn’t on there for long, and ended up moving the forklift. It wasn’t until afterwards I sort of really stopped and it started to sink in then.
Q:So what we don’t see in the video is the immediate aftermath between you getting up from the pallet, presumably getting into the forklift - - -?---
A:Yeah, gone to the red forklift.
Q:- - - and then reversing the forklift to the - sorry?---
A:No, that’s correct, that’s correct. Yeah. Sorry.”[27]
[27]T91, L28 – T92, L9
52 The plaintiff agreed the first clip did not show him getting up from the pallet and getting into the red forklift, reversing the forklift, then sitting on the pallet.
53 The plaintiff’s evidence was once he moved the red forklift, he was in agony and managed to get himself onto the silver forklift to drive back to the office.
54 The plaintiff agreed that, to the extent any horn was sounded, it was simply to alert either Brian [Aspinall] or him that that there was something in the way. He said:
Q:“And to the extent that any horn was being sounded, it was simply to alert someone - either Brian or yourself - - -?---
A:That there was something in the way?
Q:Yes, to - - -?---
A:Yeah, that’s correct.
Q:That the forklift is going to have to be moved?---
A:Correct.
Q:M’hmm. And when you stumbled backwards, you are still facing backwards when you have your fall?---
A:When - sorry?
Q:Well, you have walked straight back over the pallet. That is what I am saying?---
A:Yeah, I basically stepped backwards without sort of turning that way. I walked backwards, yeah, correct.”[28]
[28]T99, L9-19
55 The plaintiff agreed that the accident is just a simple trip on his behalf, because he did not look around before he went to move the red forklift and he had forgotten the pallet was there. He said:
Q:“… So Mr McLeod, in short what I suggest has occurred on this occasion is just a simple trip on your behalf, because you didn’t look around before you moved the forklift and you had forgotten the pallet was there?---
A: I did, yeah, but I was aware of the pallet, yeah.”[29]
[29]T99, L27-31
56 The plaintiff agreed he may have been at work for twenty minutes to half-an-hour before he was driven home. He did not see a doctor nor attend a hospital, in relation to his injury.[30]
[30]T100
Evidence of the Defendant’s lay witnesses
Mr Brian Aspinall
57 Mr Aspinall is a forklift driver and has worked with the defendant as a forklift driver since 1993. In 2011, he transferred to the Chemcourier’s division of the defendant. In 2014, he commenced working the AM shift.[31]
[31]T292-293
58 Mr Aspinall said he worked closely with the plaintiff and they would meet and socialise outside work. He said the plaintiff was a hard worker who would do anything for anyone. He said the plaintiff had good IT skills.
59 On the day of the incident, Mr Aspinall said he was checking the CNUDs into the system using an iPad. He was required to enter into the system details of the freight that had not been delivered on the day of receipt. He had an issue with the software and called the plaintiff for assistance with the iPad. He had been using the iPad for about fifteen minutes.
60 Mr Aspinall explained the process of what happens to the CNUD pallets. From the time they are offloaded from a truck they are placed in a staging area. Each staging area has bays for various metropolitan regions. The pallets are placed into the appropriate bays. From there the pallets are loaded onto the appropriate outbound trucks or pick up delivery trucks on the day of receipt. The pallets left over in the staging areas are the CNUD pallets. He was required to record the freight not delivered on the day of receipt into the system by means of the iPad. This was referred to as the checking off/stocktake.
61 Mr Aspinall said the area he was working in on the day of the incident was known as the staging area. After completing the checking off/stocktake, the pallets would be moved to the defendant’s timeslot where they are stacked for delivery the next day.
62 Mr Aspinall said the checking off/stocktake is performed in the staging area before the pallets are moved to the defendant’s timeslot because the rows in the timeslot are very narrow and access to the pallets is restricted.
63 Mr Aspinall said it was normal practice to perform the checking off/stocktake in the staging area as he was doing.
64 Mr Aspinall said he parked his forklift where he did because it was where he was working at the time. As far as he was aware, there was no restriction or prohibition on parking a forklift in that position at the time of the accident. He thought, at the time, the restrictions on parking forklifts were no parking in walkways, big doorways where trucks come in, such as entrance and exit doorways. After he completed the stocktake, he would transfer the CNUD pallets by forklift to the timeslot for storing. That is why his forklift was close by.
65 Mr Aspinall was working in the staging area and believed he moved the forklift out of the way of the B double when the tug arrived. After viewing the film, he confirmed that it was the plaintiff who moved the forklift.
66 Mr Aspinall said the plaintiff tripped over a small pallet behind him while moving to the forklift. He recalled the plaintiff stood up and was in quite a bit of pain. He believed the tug sounded its horn but cannot be sure. He said the tug only needed to let him know to move the forklift to enable the trailer to be parked. Mr Aspinall agreed the incident occurred during preparation for the PM shift.
67 Mr Aspinall said the procedure of recording the CNUD pallets in the staging area was normal procedure as there was more room to move around the pallets in the staging area. He said there is no room to move around the pallets in the Mainfreight timeslot. He said he parked his red forklift near where he was working. He said there were no restrictions on parking. He confirmed he was aware that around 12.30pm each day, trailers entered that specific area for the PM shift.[32] Mr Aspinall said he left his forklift in that position because that is where he was working at the time. He agreed that had he not parked his forklift in that position, the forklift would not have needed to have been moved. He said forklift was close so he could move the pallets after he had checked them off.
[32]T311-312
68 Mr Aspinall said the plaintiff tripped on a pallet while moving towards the forklift.
69 Based on his experience, Mr Aspinall did not agree that at the time of the incident, the workplace/work scene was chaotic.[33]
[33]T297, L5-9
Jason Kennedy
70 Mr Kennedy is the regional sales manager for the defendant, having been employed with the company since January 2007, when he commenced as a sales executive. In August 2011, he became the branch manager of Chemcouriers, a division of the defendant responsible for dangerous goods at the Clayton premises. As branch manager he was responsible for managing staff – from operational staff, team members to owner drivers – growing the business, bringing in new business and being responsible for compliance.
71 Mr Kennedy said he met the plaintiff in 2007. The plaintiff transferred to Chemcouriers in about 2013. On 26 September 2014, Mr Kennedy was working at a different location.
72 Mr Kennedy had viewed the films of the incident and was shown photographs contained in Mr Dohrmann’s report.[34] He confirmed the pallets were known as the CNUD pallets. He said it was normal practice for the CNUD pallets to be placed in the vicinity of the bay shown on the CCTV film. The freight is “staged” there, to enable the team – in this case, Mr Aspinall and the plaintiff – to do a stocktake, by walking around the pallets to record labels and scan barcodes on the pallets using an iPad. He said it was important to record the information before transferring the pallets to a timeslot bay as timeslot bays are used to hold freight for future deliveries and are kept away from traffic.[35] Once completed, the freight is moved to a timeslot bay, where the pallets are stored overnight until the next day, when they are re-allocated onto a delivery truck. Mr Kennedy said the pallets were checked off in the staging area rather than the timeslot bays due to space restrictions and accessibility. He said the team needs to be able to walk around the pallets to check barcodes.[36]
[34]PCB 197
[35]T326
[36]T327-328
73 Mr Kennedy said it was important to check the CNUD pallets promptly after they have been unloaded, so they know what they have left on the depot floor and they can pass that information on to the customer service team who notify customers and interstate service teams that the freight will not be delivered that day but that it will be delivered the next day. He said the pallets may have come a long distance and arrived too late for local trucks. He said the CNUDs could not be left in the staging bay because it would interfere with the PM shift operations.
74 Mr Kennedy said the location of the red forklift straddling the trailer parking bay was in an “active work zone”. He said forklifts drive/park in such areas depending on the volume of pallets.[37] He said forklifts do not have a dedicated parking location, just out of the way in particular bays.[38] He said that the work area and process was definitely not chaotic at the time – one of the most quietest times of the day.[39]
[37]T328-329
[38]T230; T340
[39]T330
75 Mr Kennedy said the position of the red forklift at the time of the incident gave Mr Aspinall the ability to get on/off while actively working. He would move the forklift once he finished with the pallets.[40]
[40]T330-331
76 Mr Kennedy confirmed that exclusion zones were used at the premises for loading/unloading but not for the CNUD process. He disagreed that the forklift was a clear impediment to operational efficiency where it was parked.[41] He said forklifts were not permitted to traverse within boundaries of walkways or safety zones.[42]
[41]T337-338
[42]PCB 269
77 Mr Kennedy confirmed that the defendant’s traffic management plan dated the 29 November 2013 was in place at the date of the incident. Mr Kennedy said exclusion zones are used during loading/unloading trucks, not during the CNUD process.[43]
[43]T331
Credit of the lay witnesses
78 There was no issue with the credit of Mr Aspinall and Mr Kennedy. Both men answered questions as best they could. They answered questions directly and were straightforward in the evidence they gave.
79 The plaintiff was a long-term and well-regarded employee who enjoyed his work. It was not in dispute that he was competent with technology, hardworking and eager to assist others. He answered questions as best he could. He was not particularly eloquent. He had difficulty explaining the incident. When challenged on the incident, he made appropriate concessions. I accept he was a credible witness.
Expert witnesses
Mr Edward Dohrmann
80 Mr Edward Dohrmann, a qualified engineer and certified professional ergonomist engaged by the plaintiff, provided two reports dated 22 October 2019 and 24 February 2020. Much of Mr Dohrmann’s first report was redacted as it related to injury sustained in the “course of employment” case which was no longer being pursued by the plaintiff.
81 Mr Dohrmann viewed the three tendered CCTV footages of the incident on 26 September 2014 of 39 seconds, of 4 minutes, 43 seconds and 16 seconds. He inspected the premises on 14 August 2019 with the plaintiff. He was provided with photographs, which he examined. He interviewed the plaintiff on 25 September 2019. He was provided with other documents.
82 Mr Dohrmann confirmed that he was provided with the Engistics Logistics safety review dated 1 February 2013, commissioned and implemented by the defendant, and the Traffic Management Plan dated 20 September 2012.
83 The evidence is that in September 2012, WorkSafe issued a WorkSafe Improvement Notice directed to the defendant. The defendant engaged Engistics to conduct a logistics safety review, which was completed in February 2013. Improvements were undertaken by the defendant in the period September 2012 to December 2013. There were a significant number of changes at the premises to improve safety in relation to traffic management. By 18 December 2013, the WorkSafe documents state the defendant had complied with the improvement notice of 2012. This was prior to the plaintiff’s injury.
84 Mr Dohrmann said that just because WorkSafe is satisfied that the Performance Improvement Notice (PIN) has been complied with, does not mean recommendations from the Engistics review had been complied with. The Engistics review was very comprehensive, including recommendations not adopted in the WorkSafe PIN. Mr Dohrmann assumed the Engistics review had not been complied with but did not identify the particular omissions and, more importantly, their relevance to the incident on 26 September 2014. Mr Dohrmann confirmed that at the time of his second report, he had reviewed the WorkSafe entry report dated 18 December 2013.
85 Mr Dohrmann was told by the plaintiff that CNUD pallets should have been consolidated in one bay but did not specify which bay.[44] He confirmed that he was told that the forklift driver responsible for the red forklift had left the area and he provided his written report on that understanding. He was not aware that Mr Aspinall was the forklift driver who had remained with the red forklift checking the pallets.[45] Further, he assumed that the plaintiff was consolidating, rather than checking the pallets.[46]
[44]T187-188
[45]T187-190
[46]T217
86 Mr Dohrmann said he had no note to the effect that the tug arriving was to collect pallets, but was certain he discussed this with the plaintiff.[47] He confirmed his opinion that the staging area in question was disorganised (tug, pallets and forklift) in terms of a system of work.[48] He accepted the proximity of pedestrian workers such as Mr Aspinall and Mr McLeod, who were working together, was satisfactory.[49] He said the trailer/truck parking proximity to pedestrian workers is disorganised and unsafe.[50] Further, the truck/trailer parking near a staging area where forklifts/pedestrians work, without a buffer/exclusion zone, is unsafe because of the possibility of falling pallets, et cetera. In addition, the area in which pallets are located is inadequate and not marked as a buffer.[51]
[47]T218
[48]T193-194; T222
[49]T195
[50]T195
[51]T196-197; T222
87 Mr Dohrmann identified the incident causes as a requirement to check off CNUD pallets not yet done, pallets not consolidated, a forklift parked in an area designated for trailers, speed of work expectation, and ill-defined/marked pallet bays.[52]
[52]T213-214
88 Mr Dohrmann maintained the view that the operations were chaotic, that even with Mr Aspinall remaining with the forklift, the forklift remained in an incorrect position, blocking access.[53]
[53]T227-228
89 Mr Dohrmann said the plaintiff, as operations manager, should have had the forklift moved upon becoming aware of it, which he obviously did eventually.[54]
[54]T210
90 In of his first report, Mr Dohrmann identified measures that were available to the defendant to prevent exposing the plaintiff to risks[55].
[55]PCB 215 - 216
(a) First, by implementing a 3-metre rule between pedestrians and forklifts. Such a rule is not causally relevant to the plaintiff’s injuries as the plaintiff was not involved in a loading operation;
(b) Secondly, by implementing a comprehensive traffic plan as referred to in the Logistic Safety Review. Such a plan had been implemented;
(c) Thirdly, by providing the plaintiff with assistance from other workers. Such assistance from other workers is irrelevant to the accident in which the plaintiff was injured. The plaintiff did not ask Mr Aspinall to move the forklift;
(d) Finally, providing more space in the loading area to store and work on the pallets. There is no connection to this point and the mechanics of the injury.
91 In relation to his second report, Mr Dohrmann focussed on the Engistics report and the Traffic Management Plan of 20 September 2012. Insofar as the Engistics report is concerned, the matters are irrelevant to the mechanics of the plaintiff’s injury. In relation to the Traffic Management Plan, the only matters relevant are the reference to parking of forklifts and vehicles blocking access. I accept that on the evidence, Mr Aspinall’s forklift was “in use” as that expression related to warehouse operations. I refer to Mr Kennedy’s evidence that there was no dedicated parking for forklifts, employees would park out of the way of traffic, and when actively working as Mr Aspinall was, employees would park nearby to be close to the freight, then move the freight with the forklift.[56] The plaintiff did not pursue this point.
[56]T331, L1-7
92 In relation to the reference to “vehicular traffic”, I accept the defendant’s submission that this relates to trucks blocking access to the premises and is unrelated to forklifts.
93 In cross-examination, counsel for the defendant put to Mr Dohrmann that the plaintiff’s trip was not related to traffic management issues.[57] This proposition was supported by the evidence of Dr Culvenor. In re-examination, Mr Dohrmann put forward reasons in response to the defendant’s proposition which were:
[57]T212, L1-26
(i) that the plaintiff needed to check off the pallets in the first place, which “he tells me should have already been done”.[58]
[58]T213, L4-9
(ii) the mere presence of the pallets on the ground at all.[59]
[59]T213, L9-13
(iii) the presence of the forklift in the area;[60]
[60]T14-27
(iv) the disorganised nature of the loading system;[61]
(v) the bays were not well marked and defined.[62]
[61]T213, L28 – T214, L2
[62]T214, L6-11
94 I will address each of Mr Dohrmann’s reasons in turn:
(i) This is inconsistent with the plaintiff’s evidence, which was that the pallets should have been checked later at the CNUD bay. The process of checking the CNUDs is also a matter which precedes in the history of or narrative of the plaintiff’s accident and is not relevant to the issue of liability;
(ii) The evidence was that this was the system of work. As part of the overall process it was necessary to place the pallets on the warehouse floor as part of the unloading process. The plaintiff did not recommend otherwise nor give evidence to the contrary;
(iii) Both (iii), (iv) and (v) were disputed and are unrelated to causation.
95 I found Mr Dohrmann’s evidence of little relevance. He made assumptions which were inaccurate. Accordingly, I place little reliance on his evidence.
Dr John Culvenor
96 Dr Culvenor, is an engineer with a PHD in occupational health and safety, specialising in problem-solving and hazard management.[63] Dr Culvenor provided a report at the request of the defendant’s solicitor.
[63]T358-359
97 Dr Culvenor viewed CCTV footage taken on camera 14 on 26 September 2014 and CCTV footage taken on a different camera. He visited the site, was provided with material and prepared a report dated 14 April 2020. Prior to giving evidence, Dr Culvenor was provided with a further CCTV film of the incident.
98 Dr Culvenor said stumbling backwards onto a pallet is the subject of the videos. He said the incident was being discussed as if it related to traffic management. He acknowledged that traffic management is a key issue at a site such as the defendant’s premises. Based on his review of the video evidence and the site visit he had undertaken; he said the stumbling by the plaintiff on the pallet of goods is unrelated to traffic management.[64]
[64]T358; T362
99 Dr Culvenor was asked about the system of work in terms of accessing the trailer. He said the system of work was also suitable for the work of inspecting and checking off the stock in the pallets.[65] He said the parking of the red forklift in the trailer area is not a breach of any safety principle. It is in the trailer area temporarily and readily moved.[66] He noted that the pallets were near each other but not stacked up against one another. He was of the view that there is no conflict with any guideline or general principle of safe practice.
[65]DCB 126 and T362-363
[66]T363
100 Dr Culvenor said it was a well organised workplace that had taken on board the criticisms of Engistics.
101 Dr Culvenor was asked about an exclusion zone. He said:
“An exclusion zone could mean a lot of different things but very commonly in the area in a field involving mobile equipment, it means a space around that equipment or it could mean – well, to give an example, if we have a truck or a forklift it means if you’re a pedestrian don’t go near it when it’s being operated or when it might be operated. Similarly, if a person is the one driving the forklift or other machine or a truck, don’t approach other people and bring the two things too close together. So, it’s about not bringing people and equipment too close together. So it’s a space around equipment where we don’t want people if the vehicle or machine is moving or it might move.”[67]
[67]T363, L23 – T364, L4
102 Dr Culvenor said that where at the time of the accident there was no loading or unloading therefore an exclusion zone has no relevance.[68]
[68]T364, L16
103 In re-examination, after looking at the 16 seconds of film, Dr Culvenor confirmed that there were marked areas for staging.[69]
[69]T373, L12
104 Dr Culvenor was taken to the Engistics report.[70] He was asked about exclusion zones in an area of loading and unloading. He said, in his opinion, it was dynamic; that is, it moves with the vehicle.[71]
[70]PCB 306
[71]T373, L22-25
105 Overall, I accept the opinion of Dr Culvenor. It reflected the reality of the situation, taking into account the activities of a warehouse which reflected a dynamic process but not a chaotic process; that the area at the time was uncrowded; the work seemed well organised; the traffic management system was good at the time of the incident, and had nothing to do with the cause of the accident. He described the accident as an example of a person unfortunately misjudging their footing.[72]
[72]Report of Dr Culvenor at DCB 124
Analysis of the evidence
106 Based on the CCTV footage, the evidence of the plaintiff, Mr Aspinall, Mr Kennedy and Dr Culvenor, I accept that the plaintiff was called to the warehouse floor by Mr Aspinall, who requested assistance in the use of an iPad in the CNUD process being performed by Mr Aspinall. Pallets of goods were positioned on the warehouse floor with space between them to enable Mr Aspinall to move around the pallets to record information and scan barcodes where necessary, into the iPad. Mr Aspinall described the area as the staging area. Once the process is complete, Mr Aspinall would transfer the CNUD pallets by forklift to Mainfreight’s timeslot where they are stored for the day/night.
107 There was an issue as to whether the CNUD pallets ought to be checked off before they were despatched from the staging area or afterwards. The plaintiff’s evidence was that it was important to scan them promptly to keep track of them and to prioritise deliveries for the following day. Both Mr Aspinall and Mr Kennedy said it was normal practice for the CNUDs to be checked off before they were despatched from the staging area, and provided reasons as to why the process was conducted in this manner. Namely, the nature of the CNUDs, being undelivered freight, the need to update the system, to keep customers informed and the lack of space in the timeslot bay to perform the task. Both Mr Aspinall and Mr Kennedy said the CNUDS were stored in the Mainfreight timeslot which was a storage bay which did not permit the access required for walking around and bending over the pallets to identify the barcodes and the like.[73] I accept that based on the evidence of Mr Aspinall and Mr Kennedy, it could not be said that the defendant was negligent in having a system whereby the CNUD pallets were checked in the staging area.
[73]T327, L20 - T328, L6
108 The pallets were uniformly placed on the warehouse floor, enabling Mr Aspinall to access the pallets and to be walk around and access the bar codes and information to be entered into the iPad.
109 The plaintiff’s evidence was that as he approached the staging area from the office in the grey forklift he drove past the red forklift, driving around it. The plaintiff parked the grey forklift along the divide in the warehouse. The plaintiff conceded that he had a clear view of the pallet he fell on, as he parked the grey forklift.[74] There was no submission that the area was too crowded or that there was insufficient room to move around the pallets. Furthermore, the plaintiff conceded he would have done something if he regarded it (the red forklift) as a safety issue.[75]
[74]T78, L20-30
[75]T75, L9 – T76, L11
110 I accept, on the basis of the evidence, that the position of the pallets did not create any particular risk to the plaintiff. The pallet upon which the plaintiff fell was clearly visible and located with other pallets in an area used for that purpose. There was no suggestion that there was insufficient room to move between the pallets.
111 I take the view that the warehouse appears very large, clean and uncluttered. I accept it was “sparsely populated”, as described by Dr Culvenor.
112 Near where Mr Aspinall was working, was a parked red forklift, partly positioned on a painted yellow rectangle on the warehouse floor, which is used as a trailer bay. Mr Aspinall parked the red forklift close to where he was working at the time. The evidence was that after completing the recording of information into the iPad, Mr Aspinall would move the CNUD pallets to the Mainfreight timeslot using his red forklift.
113 The plaintiff was assisting Mr Aspinall when he heard a truck sound its horn as it entered the warehouse, alerting him to the fact that the truck was entering the warehouse and there was something in the way. The film showed, and the plaintiff conceded,[76] that the tug had come to a complete stop before the plaintiff moved in its general direction. The plaintiff handed the iPad to Mr Aspinall, before he moved. In viewing the CCTV clip, the plaintiff did not appear to be rushing. The plaintiff said he was moving backwards as he was talking to Mr Aspinall. The real cause of the plaintiff’s trip was walking backwards and a failure on his part to keep a proper lookout. Dr Culvenor said the plaintiff misjudged his footing.
[76]T88, L28 – T89, L1
114 The plaintiff’s evidence was that he was conscious of the forklift so he handed the iPad back and went to move the forklift out of the way so he could park the trailer.[77] The plaintiff said:
“Yes, sorry, as I’ve handed the iPad back to Brian and I’ve gone then to turn towards – towards the forklift and didn’t notice the small pallet sitting that where [sic] situated behind me.”[78]
[77]T77
[78]T26, L22-25
115 After viewing the second film clip, the plaintiff said he was not aware of the pallet behind him. He said:
“No, no. I wasn’t aware of what was behind me, no.”[79]
[79]T30, L6-8
116 The plaintiff further said:
“Yeah, to describe it, the best way I could describe it is as I was handing the iPad back and sort of finishing explaining to Brian, I’ve gone then to walk towards the forklift while still talking to Brian and I’ve just caught the side of it, but as I have fallen - I haven’t actually fallen onto the ground, I’ve more fallen to the side of the pallet and unfortunately used my right leg to brace my weight, to stop me falling off, and I’ve come to a - basically a seating position on top of the pallet. And so, from there it was – I’ve just sort of grabbed my leg in pain and it - whether it was the bearing of the weight or I have twisted it, I’m not 100 per cent sure. It was all in that one quick process. I was standing back and just tripping over the side of the pallet.”[80]
[80]T30, L18 – T31, L1
117 In cross-examination, the plaintiff conceded that in driving the grey forklift in the warehouse, to assist Mr Aspinall he drove straight past where Mr Aspinall was working, including the parked red forklift. The plaintiff agreed that he would have seen the position of the red forklift and the pallets in the staging area. He agreed he did not tell Mr Aspinall to move the red forklift somewhere else[81] or enquire why the CNUDs were being checked in the staging area.
[81]T75, L21 – T76, L12
118 The plaintiff said, in relation to the film clip:
Q:“Now, when you arrive where we see you and your forklift now, clearly from there, I suggest, you’ve got a clear view firstly of the pallet itself in front of you? When I say that - - -?---
A:(Indistinct).
Q:I’m talking about the – where the pointer is now located so that’s the pallet – irregularly shaped fawn coloured pallet, it looks like it’s shrink wrapped?---
A:Yes, correct.
Q:So, from where you’re sitting on your forklift you’ve got a clear view of that pallet, haven’t you?---
A:Yes.
Q:And you’ve got a clear view of Brian’s forklift?---
A:Correct.
Q:Right. And when you get off your forklift, you didn’t bother to go over to Brian’s and move it out of the way, did you?---
A:No, I went straight to Brian and started speaking with Brian, so, yes, no, I didn’t.
Q:But you could’ve done that, if you thought it posed some sort of hazard you could’ve done that, couldn’t you?---
A:I could’ve, yes.
Q:In fact, as the operations manager if you perceive that as being unsafe it would’ve been your obligation to do so, wouldn’t it?---
A:I guess.
Q:And likewise, we see the pallet sitting there on the floor, you didn’t make any attempt to move the pallet?---
A:I wouldn’t move any of those pallets, no, I wouldn’t have moved any of them, no.
Q:You didn’t ask Brian to move the forklift?---
A:No, not at the time, no.
Q:And you didn’t ask Brian to move the pallet?---
A:No.”[82]
[82]T78, L20 – T79, L16
119 The plaintiff agreed from where he parked his grey forklift, he had a clear view of the pallet upon which he fell and red forklift. He accepted that he did not ask Mr Aspinall to move the red forklift.
120 There was a dispute as to whether the CNUD pallets would be sent to a Chemcouriers CNUD bay or a Mainfreight “timeslot” bay. The plaintiff’s evidence was that the CNUD pallets are sent to the Chemcouriers CNUD bay and Mr Aspinal and Mr Kennedy both gave evidence that the CNUD pallets are sent to the Mainfreight “timeslot” bay. Ultimately, the plaintiff conceded in cross-examination that Chemcouriers did not have a separate bay and it utilised the Mainfreight CNUD bay.[83]
[83]T70, L8-19
121 Mr Aspinall’s evidence was that the plaintiff tripped over a pallet behind him while he was moving to the forklift.
Negligence
122 The plaintiff’s counsel submitted that the defendant owed the plaintiff a non-delegable duty to take reasonable care to avoid exposing the plaintiff to unnecessary risks of injury. Such a duty includes the provision of a reasonably safe place of work, safe system of work and competent fellow employees. The plaintiff submits that the defendant negligently breached its duty, such negligence being a cause of his injury, loss and damage.
123 The plaintiff relied upon the following particulars of negligence.
(a) failing to implement and/or enforce a loading/unloading exclusion zone (LUEZ) within the warehouse.
The LUEZ has nothing to do with how the plaintiff’s injury occurred. Furthermore, a LUEZ is only engaged when the process of truck loading/unloading is actually taking place. A LUEZ is designed to reduce the risk of injury to pedestrians from moving forklifts and or from freight falling off the trucks in the process of actual loading/unloading;
(b) failing to implement and /or enforce LUEZ rules.
This does not arise, based on the same reasoning as in (a) above.
124 Other allegations of negligence relating to the forklift were relied upon by the plaintiff which did not arise on the evidence and had no causative connection with how the plaintiff’s injury occurred. Accordingly, they have no relevance to my decision. Those allegations included:
(i) parking the forklift in an area designated for trucks and trailers, leaving the forklift in an area designated for loading and unloading of trailers when the defendant or its employees and agent knew that trailers were to be parking in the area thereby creating a sudden distraction and resultant danger of injury;
(ii) permitting or allowing deposited pallets, pedestrians, forklifts and delivery trucks to be in or move into the same area of the warehouse at the same time, thereby creating a risk of tripping;
(iii) failing to institute and/or maintain any proper system for ensuring forklifts were not parked in trailer bays;
(iv) failing to institute, implement and/or enforce compliance with a traffic management plan for the floor of the warehouse such that trucks, forklifts, pedestrians and pallets of goods could converge on the one area at the one time;
(v) having pallets on the warehouse floor which were tripping hazards in the vicinity of a designated truck and trailer loading area;
(vi) failing to have separate and clearly designated areas for forklifts trucks and trailers and/or failing to enforce such designated areas; and
(vii) failing to enforce the defendant’s purported policies and procedures on traffic management.
125 Based on the evidence, I accept that the plaintiff was injured when he tripped over a pallet and was not keeping a proper lookout. He was walking backwards and failed to turn around and look where he was going. This is not something that the defendant could reasonably guard against. The plaintiff was aware the tug was approaching the trailer bay from the time the tug entered the warehouse and sounded its horn. The tug was driven by a team member and was not moving quickly. The plaintiff was not responding to an emergency situation, nor did he respond in the heat of the moment. The film demonstrates that the tug had come to a complete stop before the plaintiff moved in the general direction. The plaintiff returned the iPad to Mr Aspinall, before he moved backwards. H was still talking to Mr Aspinall as he moved backwards. He did not appear to be rushing. The evidence was that the arrival of the tug and trailer was expected in preparation for the start of the PM shift. Mr Kennedy’s evidence was that it was one of the quietest times of the day.
126 Counsel for the plaintiff relied upon the High Court decision of McLean v Tedman & Brambles Holdings Limited.[84] Namely, that the system of work in place contemplated forklift drivers parking where they wanted and that the system of work was condoned by Mr Kennedy, including blocking a semi- trailer parking bay. In the words of the majority of the High Court:
“It was a system fraught with some degree of risk of injury to employees in some circumstances.”[85]
[84](1984) 155 CLR 306
[85](Ibid) at paragraph [7]
127 Counsel for the plaintiff submitted[86] in circumstances, where a carelessly placed pallet in the vicinity of the truck bay was impeding Mr McLeod’s path to a carelessly parked forklift, the employer cannot rely upon the answer that it –
“… has no control over an employee’s negligence or inadvertence. The standard of care expected of a reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others … the employer’s obligation in this respect cannot be restricted to the provision of the system which safeguards the employee of all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations, the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.”[87]
[86]Plaintiff’s Outline of Final Submissions, paragraph 11
[87]McLean v Tedman & Brambles Holdings Limited (ibid) at paragraph [8]
128 I accept, based on the evidence of the plaintiff, Mr Aspinall and Dr Culvenor, the cause of the incident does not have anything to do with loading/unloading procedures nor does it involve plant (such as forklifts, tugs, trucks, trailers) and a pedestrian, such as the plaintiff. Adopting the common-sense test of causation in March v E & MH Stramare Pty Ltd,[88] the real cause of the plaintiff’s trip was as a result of walking backwards and failing to keep any proper lookout. Further, the plaintiff was a long-standing employee, the operations manager, and experienced worker.
[88](1991) 171 CLR 506
129 Accordingly, this factual situation does not arise out of a system of work as contemplated in McLean v Tedman & Brambles Holdings Limited.[89]
[89]Supra
130 I accept that the defendant owed a general duty of care to the plaintiff as its employee. That duty was to take reasonable steps to protect the plaintiff from a foreseeable risk of injury.
131 Counsel for the defendant submitted that it is insufficient for the plaintiff to simply allege that the employer owed a duty of care. Rather it is incumbent on the plaintiff to identify the scope and contents of the duty in the circumstances. In Stevens vBrodribb Sawmilling Company Pty Ltd,[90] Deane J stated the position thus (at 50):
“Where a duty of care exists under the common law of negligence, it requires the taking of reasonable care to avoid a reasonably foreseeable and real risk of injury. That being so a relevant duty of care will have existed in a particular case only if there was some reasonable foreseeability of a real risk of that injury of the kind sustained would be sustained by a member or members of a class which included the particular plaintiff.”
[90](1985-1986) 160 CLR 16
132 This was applied by J Forrest J in Victorian WorkCover Authority v O’Brien & Ors.[91] It is necessary, as a first step, to identify with reasonable precision the risk of injury, which it is alleged should have been foreseen by the defendant, and guarded against.
[91][2017] VSC 39 at paragraph [79]
133 The real risk of injury to the plaintiff that eventuated was not reasonably foreseeable; that is, he would walk backwards, trip over the pallet when moving toward the forklift, in order to move the forklift. There was no breach of duty because there was nothing that a reasonable employer in the position of the defendant could have done to prevent the risk of injury other than to advise him to look where he was walking.
134 I accept it was not negligent to check the CNUDs in the staging area before transferring them to the Mainfreight timeslot and/or the CNUD bay. I accept the evidence that it was more appropriate to check the CNUDs in the staging area as it allowed the staff to move around the pallets. It was common commercial sense and accepted practice.
135 I accept that it was not negligent for Mr Aspinall to park his forklift where he did; it was an active work zone used by all forklifts as required. The only requirement was for him to move the forklift, if necessary. This would be a minor inconvenience but does not constitute negligence.
136 I accept that the parking of the forklift was not the cause of the plaintiff’s injury. Relying on the dicta of McHugh J in March v E & MH Stramare Pty Ltd,[92] the parking of the forklift was an incident which precedes the history or narrative of the events and is to be ignored for the purpose of legal liability.
[92](Supra) at paragraphs [40]-[45]
137 Further, any alleged breach of duty, for example failure to have exclusion zones around the truck parking bay, is not causally related to the injuries the plaintiff suffered, nor was it the cause of his injuries suffered, as there was no loading or unloading. The real cause of his injuries was his own, admitted, act of negligence, in walking backwards and in not keeping a proper lookout.
138 Accordingly, I accept the plaintiff has not established liability against the defendant with respect to negligence. Accordingly, the issue of contributory negligence does not arise for my consideration and I do not consider the plaintiff’s claim for damages. I will dismiss the plaintiff’s claim.
139 I will hear the parties on costs.
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