Miloradovic v Osborne Park Commercial Pty Limited - [2017] WADC 129

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

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

CORAM: STEVENSON DCJ

HEARD: 12, 14-16 JUNE 2017

DELIVERED : 29 SEPTEMBER 2017

FILE NO/S: CIV 2910 of 2015

BETWEEN: ANTHONY MILORADOVIC
Defendant
AND
OSBORNE PARK COMMERCIAL PTY LIMITED
Third Party

Catchwords:

Torts - Negligence - Duty of care - Warehouse owner - Whether duty of care owed to customer collecting goods - Common-use access way - Reasonable foreseeability - Third party negligence - Breach of duty - Causation - Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 - Apportionment of liability between tortfeasors

Legislation:

Civil Liability Act 2002 (NSW) s 5B
Civil Liability Act 2002 (WA) s 5AK(3), s 5B, s 5C, pt 1F
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) s 7, s 7(1)(c), s 7(2)
Occupational Safety and Health Act 1984 (WA) s 19(1), s 22, s 22(3)
Occupiers' Liability Act 1985 (WA) s 2, s 5

Result:

Third party to contribute 25% of judgment sum paid to the plaintiff by the defendant

Representation:

Counsel:

Defendant: Ms B A Mangan
Third Party : Mr G R Hancy

Solicitors:

Defendant: Moray & Agnew
Third Party : Gillis Delaney

Case(s) referred to in judgment(s):

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Agar v Hyde (2000) 201 CLR 552
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Chapman v Hearse (1961) 106 CLR 112
Department of Housing and Works v Smith (No 2) (2010) 41 WAR 217
Jaensch v Coffey (1984) 155 CLR 549
Kuhl v Zurich Financial Services Ltd (2011) 243 CLR 361
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Woolworths (WA) Pty Ltd v Berkeley Challenge Pty Ltd (2004) 28 WAR 540

STEVENSON DCJ:

Introduction

In this action, the defendant (Mr Miloradovic) paid the plaintiff (Mr Gallagher) $865,000 (the judgment sum) as damages and costs for personal injuries caused to Mr Gallagher on 13 January 2015, as a result of his negligent conduct.
In these proceedings, Mr Miloradovic claims a contribution to the judgment sum from the third party (Harvey Norman) on the basis Harvey Norman is also a tortfeasor, and liable in negligence to Mr Gallagher.
The incident giving rise to Mr Gallagher's claim occurred in a common‑use driveway (the access way) used to service a number of different commercial premises, including Harvey Norman.
Mr Miloradovic has always admitted his negligence was causative of Mr Gallagher being injured in circumstances where he should not have been exposed to the risk of personal injury.
At the time he was injured, Mr Gallagher was a Harvey Norman customer acting on its instructions to collect goods he had purchased from its warehouse.
Immediately prior to the incident, Mr Gallagher was directed by a reception staff member to drive to 'the pick‑up bay' to collect his goods. He was told it was the first loading bay on the left hand side of the access way.
At the time he was injured, Mr Gallagher was being served in the access way by a Harvey Norman employee, Mr Matiu.
Mr Gallagher was not given any instructions or warnings as to his personal safety, or of the obvious dangers in the vicinity of the immediate area to which he had been directed to go to by Harvey Norman.
Mr Miloradovic is employed by Cahill Transport as a truck driver. Immediately before the incident he was parked on the left‑hand side of the access way adjacent to, and blocking, the Harvey Norman loading bay that Mr Gallagher had been directed to use.
At the time, Mr Miloradovic was delivering goods to a loading bay at the rear of Barbeques Galore on the other side of the access way. After the right side of his truck and trailer combination had been unloaded by a forklift driver from Barbeques Galore, his normal routine was to reverse back before driving forward to park on the right-hand side of the access way. The left side of his truck and trailer would then be unloaded.
On every occasion Mr Miloradovic would then reverse all the way back down the access way to the entrance on O'Malley Street because, once he had entered the access way, it was not possible to turn the truck and trailer combination around in order to drive out forwards.
Mr Miloradovic had performed his deliveries in this manner for about three years at least once a week and, depending on the time of year, more than once a week. Harvey Norman was aware of Mr Miloradovic's actions and that semi-trailers and trucks with trailers had no choice but to reverse out, because there was no drive-through to exit the access way to the commercial premises.
The access way is a common-use driveway used by all the tenants in the commercial complex for trucks and other vehicles to unload goods to their premises and in some cases, including Harvey Norman, to deliver goods directly to customers.
The access way is 7.44 m wide, with loading bays and car parking bays on either side. It is not akin to a carpark in a shopping centre, because commercial vehicles of different sizes are loaded and unloaded in the area. Sometimes this is done by hand and often by forklift.
The tenants, including Harvey Norman, have 'exclusive use' of unloading bays for their own use and also staff parking bays. Both can only be accessed from the common-use driveway.
Harvey Norman has a greater need to use the access way for all of its goods (whether being received or delivered) because of the way its premises are situated and configured in the commercial complex. All the other tenants have a common frontage onto Scarborough Beach Road with car parking for their customers in the front of their premises.
At the time of the incident, Mr Miloradovic's truck and trailer combination was blocking the Harvey Norman 'pick-up bay'. As a result, Mr Gallagher could not access the bay in his vehicle. In the circumstances, he parked behind Mr Miloradovic's truck and trailer, which was also parked in the access way on the left-hand side. To be able to collect his goods, Mr Gallagher reversed his vehicle (a Jeep Grand Cherokee) up to the rear of the truck and trailer, leaving a gap of about 6 ‑ 7 m.
After parking in the access way, Mr Gallagher got out. Mr Matiu, a storeman from Harvey Norman, served him and also assisted him to load the goods into the boot of the Jeep.
While Mr Gallagher and Mr Matiu were loading the goods into the rear of the Jeep, without any warning or proper lookout, Mr Miloradovic got into the cab and reversed the truck and trailer. As a result, he crushed Mr Gallagher between the two vehicles.
Fortunately, because of what he was doing at the time, Mr Matiu managed to avoid being pinned between the vehicles and was able to raise the alarm.
As a result, Mr Miloradovic stopped reversing and pulled forward. Mr Miloradovic was not aware of the collision because he did not feel any impact. He only became aware that something had happened when he saw Mr Matiu in the side mirror of his truck waving his arms and motioning to go forward.
Mr Miloradovic accepts his negligence caused the accident and the resulting injuries to Mr Gallagher. Accordingly, on 2 May 2016, Mr Miloradovic consented to a judgment being entered against him for the settlement sum of $865,000.
In these proceedings Mr Miloradovic contends Harvey Norman is also blameworthy and should make a contribution to the judgment amount paid to Mr Gallagher.
Harvey Norman denies any liability for the incident and resultant injuries sustained by Mr Gallagher. More particularly, Harvey Norman contends it did not owe a duty of care to Mr Gallagher and, even if it did, it did not breach any duty owed to him, and therefore was not negligent in any relevant sense.

The issue

The question for determination is whether Harvey Norman's actions or omissions were in breach of a relevant duty of care, and if so, did they cause or contribute to the occurrence of Mr Gallagher's injuries such that it should be held liable to contribute to the judgment amount. If so, what is a just and equitable apportionment of its liability?
For the reasons that follow, in my view, Harvey Norman owed Mr Gallagher a common law duty of care in all the circumstances; the duty was breached and, together with the negligence of Mr Miloradovic, causative of the injuries sustained by Mr Gallagher.
Accordingly, I find it is just and equitable that Harvey Norman contribute 25% of the judgment amount paid to Mr Gallagher.

The pleadings

By his statement of claim in the third party proceedings, Mr Miloradovic pleaded that Mr Gallagher attended Harvey Norman to collect goods which had been purchased; was invited and directed by an employee of Harvey Norman to go to the pick-up bay to collect the goods; found that Mr Miloradovic's Isuzu truck and trailer was parked across the pick-up bay blocking vehicle access to the bay; found that there were no available parking bays adjacent to the access way; he consequently parked his Jeep behind the Isuzu so that the rear of the Jeep was facing the rear of the Isuzu; attended in person at the pick-up bay to collect the goods; was assisted to collect the goods by an employee of Harvey Norman at the pick-up bay; and, with the assistance of the employee, was proceeding to load the goods into the boot of the Jeep when he was injured. These factual allegations are admitted by Harvey Norman.
It is common ground that Mr Miloradovic (presumably through his employer's insurers) paid the settlement sum of $865,000 to Mr Gallagher pursuant to a judgment entered in this court on 2 May 2016. The basis for the judgment sum is not relevant for present purposes.
Harvey Norman accepts that Mr Gallagher's cause of action against Mr Miloradovic merged in the judgment obtained. Mr Miloradovic's liability to Mr Gallagher is thereafter res judicata: Woolworths (WA) Pty Ltd v Berkeley Challenge Pty Ltd(2004) 28 WAR 540 [23], [29] and [30].
The issue of any contributory negligence on the part of Mr Gallagher is also merged with the judgment and cannot be reopened as part of the process under s 7(2) Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (Contribution Act) of assessing the measure of any liability which it maybe adjudged Harvey Norman should bear; Woolworths [37].
Harvey Norman accepts the judgment amount received by Mr Gallagher was reasonable. Accordingly, this is not an issue in these proceedings.
Mr Miloradovic contends Harvey Norman owed Mr Gallagher a duty of care to take reasonable care to avoid foreseeable risks of injury to Mr Gallagher. Alternatively, Mr Miloradovic says Harvey Norman owed Mr Gallagher a statutory duty of care pursuant to s 5 of the Occupiers' Liability Act 1985 (OL Act) and also s 22 of the Occupational Safety and Health Act 1984 (OSH Act).
Harvey Norman denies it owed any relevant duty of care to Mr Gallagher and, in effect, pleads that the sole cause of Mr Gallagher's injuries was the 'negligent and reckless' conduct of Mr Miloradovic.
In the pleadings, Mr Miloradovic particularised the alleged negligence and breach of statutory duty of care by Harvey Norman to Mr Gallagher as follows:
(a)allowed, permitted or acquiesced to the series of events leading up to the incident;
(b)directed, permitted or acquiesced to the loading process;
(c)allowed, permitted or acquiesced to Mr Miloradovic parking his truck and trailer in the position it was at the time of the incident;
(d)directed, invited, permitted or acquiesced Mr Gallagher to parking his Jeep in the position it was;
(e)failed to warn Mr Miloradovic of the presence of Mr Gallagher or his Jeep, behind the truck and trailer combination;
(f)failed to request and direct Mr Gallagher to wait until the Harvey Norman pick-up bay was accessible before commencing the loading process;
(g)failed to have any or any adequate traffic management plan or system in the common-use driveway or the Harvey Norman loading bay;
(h)failed to have any or any adequate traffic management plan or system in place for the safety and direction of its customers using the common-use driveway or the Harvey Norman loading bay;
(i)failed to have any or any system of work in place to manage and minimise the risk of injury to pedestrians and persons operating vehicles in the common-use driveway or the Harvey Norman loading bay;
(j)failed to implement its own OHS traffic management plan issued in March 2014; and
(k)in all the circumstances, failed to exercise reasonable care to prevent a foreseeable risk of harm to Mr Gallagher.
On this basis, Mr Miloradovic says Harvey Norman is also a tortfeasor who is or, if sued, would have been liable to Mr Gallagher in respect of the judgment amount. Accordingly, Mr Miloradovic contends he is entitled to a contribution from Harvey Norman pursuant to s 7 of the Contribution Act.
Contrary to the evidence adduced during the trial, Harvey Norman denied each allegation of its alleged duty of care and that it breached any such duty.
As will be seen later in these reasons, Harvey Norman's evidence at trial was led in a manner intended to persuade the court that Harvey Norman had no knowledge of the risk of Mr Miloradovic ever reversing his truck and trailer combination in the access way, or that his actions ever affected customers directed to the pick-up bay.
Further, the final witness for Harvey Norman, Mr Uhrhane, maintained that he had never seen Mr Miloradovic park his vehicle on the left side of the access way adjacent to Harvey Norman.
Interestingly, Harvey Norman at par 11(b) of its defence pleaded:
[Mr Miloradovic] knew, and it was the fact, that it would be necessary to reverse the vehicle combination in order to move it from one side of the access way to the other for the purpose of unloading from the passenger's side or for the purpose of returning to O'Malley Street.
Harvey Norman also pleaded, in effect, that Mr Miloradovic's vehicle combination was stationary and blocking its customer pick‑up bay for 'over a period of about 10 minutes with the assistance of Anthony Scibilia, a forklift driver employed by [Barbeques Galore]' and that Mr Gallagher's Jeep was parked behind the truck and trailer combination 'for 5 minutes before [Mr Miloradovic] commenced to reverse the vehicle combination'.
The alleged periods of time for these events as pleaded by Harvey Norman is relevant to the duty of care said to be owed by Harvey Norman to its customer, Mr Gallagher in the intervening period. The length of time taken to do so also informs the opportunity for Harvey Norman to become aware of the risk, especially given the frequency of unloading by Mr Miloradovic in the manner at the time of the incident and its consistency with his normal routine procedure on each occasion.
Relevant to any assessment of contribution Harvey Norman, in its defence, pleads Mr Miloradovic was negligent (which is admitted) on the basis that he knew it was necessary to reverse his truck and trailer combination when he was aware of the blind spot immediately behind; and that he sought to do so without an assistant to act as a dogman or lookout, or having the use of any physical means to see what was behind when reversing. It is common ground that Mr Miloradovic did not take proper care, given his knowledge of the blind spot behind the trailer and failed to look or take any other reasonable steps to ensure that it was safe to reverse the unit before doing so.
Finally, in his reply to Harvey Norman's defence in the contribution proceedings, Mr Miloradovic denied that he was 'reckless'.
On the pleadings the issue is whether, in the circumstances, Harvey Norman owed its customer, Mr Gallagher, a duty of care to prevent him from being exposed to any foreseeable risk of injury, whether the risk of injury was foreseeable and, if so, whether Harvey Norman breached its duty of care?
If Harvey Norman is determined to be a tortfeasor in respect of the injuries suffered by Mr Gallagher, then it is liable to contribute to the judgment sum received by Mr Gallagher. The court must then determine what is a just and equitable amount as a percentage of the judgment amount.
In any event, it is noted as stated by Pullin J in M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 at [50] that, even if the duty of care in s 19(1) the OSH Act had been breached in that case, the same considerations would have to be taken into account in determining a common law claim and what response was required from the employer to a risk of injury which it knew or ought to have known. A duty imposed on an employer under the OSH Act is not an absolute duty: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 [30] – [36] (Murphy JA) .

Evidence led at trial

The actual circumstances leading up to and at the time of the incident when Mr Gallagher was injured are not in dispute. In part, the reason for this is because the incident was captured on CCTV. This was tendered as exhibit 5. The evidence depicted by the CCTV recording is summarised in schedule A attached to these reasons.
As mentioned, the evidence adduced by Harvey Norman was intended to minimise its actual knowledge of the existence of the risk caused by Mr Miloradovic's operations in the access way and the impact on access to its customer pick-up bay.
As a result, a factual controversy emerged on the evidence about the extent to which Harvey Norman possessed (by its employees and staff) knowledge of the activities of Mr Miloradovic and their impact on Harvey Norman's operations. For example, Mr Cramond, the sole director and manager of Harvey Norman, said that he had not been made aware of any occupational health and safety issues with respect to loading operations in the customer pick‑up bay. Similarly, Mr Uhrhane maintained he had only ever seen Mr Miloradovic parked on the right side of the access way adjacent to Barbeques Galore (the other side from Harvey Norman).
The factual controversy is as a result of the evidence of Mr Miloradovic as to how he, as a matter of routine, went about unloading his truck and trailer in the access way (which incidentally is consistent with Harvey Norman's pleading in this regard) and also, other evidence from Harvey Norman employees that from time to time they served customers while parked in the access way.

Mr William James Gallagher

In 2015, Mr Gallagher was employed by Ecovue as a manager and sales representative. Part of his salary package included a Jeep so he could perform his duties.
On 13 January 2015, in the course of his employment, he went to the Harvey Norman commercial store at Unit 7 and 8, 2 O'Malley Street in Osborne Park to collect some goods. The goods consisted of various electrical appliances for a kitchen.
On arrival at Harvey Norman, he parked the Jeep in a parking area at the front of the building. He then proceeded into the reception showroom area and spoke to a female member of the Harvey Norman staff. Having identified the order, she instructed Mr Gallagher to drive his vehicle down the side of the building where he would find a loading bay where his vehicle could be parked and loaded with the goods.
Mr Gallagher said, 'The lady explained it in detail that I just go out the door and just drive down. You'll find the loading bay clearly on the left, it's the first loading bay on the left'. She did not give him any other information or warnings about his safety or the other commercial operations in the access way.
On leaving the reception, Mr Gallagher said he saw a truck parked near the loading bay and decided to reverse his vehicle down, not knowing at the time that the truck was blocking the loading bay. He said: 'I think I got down as far as the truck and I could see that the truck was over the loading bay. And then I pulled forward, from memory, giving around six, seven metres distance between my vehicle and the truck'. Mr Gallagher then opened the back to obtain access to the boot of the Jeep.

Mr Gallagher's recollection was that there were no spare parallel parking bays near the loading bay, 'so my idea with parking this side was I would keep a clear access for the forklifts and any other vehicles that were going up and down there without causing an obstruction'.
On this basis, Mr Gallagher reversed the Jeep on the Harvey Norman side of the access way so there was sufficient space between the rear of his vehicle and the rear of the parked truck to open the boot and load the goods.
In cross‑examination, Mr Gallagher confirmed the reason he did not drive into the Harvey Norman parking bay was because the truck 'was over the loading bay' and he could not obtain access. He remembered clearly that there was a truck in the way which prevented his access to the loading bay. He accepted he may have decided to reverse the Jeep down to the loading bay before the truck came into view after leaving the front carpark.
It is not in dispute that Mr Gallagher could not access the loading bay with his vehicle because of the presence of Mr Miloradovic's truck and trailer combination.
The evidence of Mr Gallagher was as follows, bearing in mind that there is CCTV footage. It must be borne in mind that Mr Gallagher had not seen the CCTV footage and (understandably) did not want to see it in the course of his evidence. I did not permit it to be shown to him as he did not want to see it.
In cross‑examination, Mr Gallagher accepted that whatever was shown on the CCTV footage would be correct and, quite properly, that, by reason of the accident, his memory or understanding of what happened might not be perfect or precise.
After parking the Jeep, Mr Gallagher said he walked up to the loading bay area and drew attention to himself. His evidence is:
There was – there was a few people around there anyway and one of the guys came over. I think I gave him the – the docket and he says, 'Yeah, your ‑ your stuffs here, I'll just get a trolley.' And from what I remember, he assisted me to come out to the Jeep. I pointed it over to him where I parked. And he said, 'that's fine, I'll give you a I'll give you a hand.' I think we had a bit of a conversation. I think he was from New Zealand. It was just basic chit chat from what I remember. He then helped me start putting some of the stuff in. For some reason he had to go back to the warehouse, whether it was to get another item, I can't remember. And then all I recall then is hearing the clatter of the trolley.
Mr Gallagher has a memory of putting some of the goods into the boot of the Jeep. He said:
At the time when I heard the clatter of the trolley, I was actually in – so leaning into the Jeep to manoeuvre some box around to get another box in. And that's as I looked round and saw the trolley go. And the next thing the truck was – the – the – the boot, if you like, I don't know what you call it, the hatch was up and I was pretty much crumbled in between that and I was trying to push myself – pull myself to get away, to the side of the vehicle, but that basically trapped me against the pillar then where before when it initially happened I was in the middle of the vehicle and I was trying to get out here.
Mr Gallagher thought the Harvey Norman staff member (Mr Matiu) assisted him to take the trolley to the Jeep but then said he actually loaded it himself while the Harvey Norman staff member went back to get another box or some paperwork. In any event, either way the Harvey Norman employee was prepared to serve Mr Gallagher with full knowledge of where the Jeep was parked behind the truck.
Mr Gallagher said the Harvey Norman staff member asked him, 'Where are you parked?' and he pointed to the Jeep. Mr Gallagher observed that at no stage was he asked to park his vehicle in a different place or anywhere else. In cross‑examination, Mr Gallagher maintained the Harvey Norman employee 'clearly asked' him where he was parked and that he actually pointed to the Jeep and said 'I'm just here'.
There is no doubt Mr Gallagher was not required to move his vehicle before being loaded in the access way by an employee of Harvey Norman. No warning was given to keep a look out or to take care to ensure his own safety. No precautions were taken at the time to identify any risks or hazards and accordingly, no steps were taken to minimise the risks.
Mr Gallagher said the Harvey Norman staff member saw that he was trapped between the Jeep and the back of the truck and that he asked for the truck to be moved forward. He then felt 'a release in pressure' which he thought was the driver changing the gear 'and that then it was full pressure on. And that's when I could see – I could feel my feet being dragged in – on the ground and visually see tyre marks'.
Mr Gallagher thought he passed out briefly, before then finding himself still on his feet having scrambled out of the way and holding onto the rear wheel of the Jeep. He felt he was bleeding internally and couldn't breathe. His next recall was of ambulance officers assisting him.
Mr Gallagher said he was not warned by the driver of the truck that he intended to reverse before the truck struck him. Further, Mr Gallagher said that he did not receive any warning or perceive that he was about to be struck by the trailer of the truck. He did not hear a reversing beeper.
Mr Gallagher described the environment at the time of the accident as 'damned near impossible' to hear a vehicle that is coming towards you, given the ambient noise in the area.
In re‑examination Mr Gallagher said:
There's a lot of sounds in that – you know, you've got extraction units, you've got forklifts, you've got forklifts that beep when they go past doors and typical industrial sorts of sounds. Maybe another truck, truck, you know, sound from O'Malley Street. You know, it's a – there's a lot of sounds there. But if it had – if it had a bleeper where I believe it should have had a bleeper, then I would – I would clearly hear it. And if he had a camera where I believe he should have had a camera, he would have seen me.
And did you hear the truck motor running?‑‑‑No. If I did it was in a – in a combination of other noise.
Yes?‑‑‑It – it wasn't something, let's put it this way, let's be clear on that. It wasn't as if I heard an engine starting that would have caught my attention. There was no sudden change to the sound of a new engine starting. That's the truck. Nothing like that.
I accept Mr Gallagher gave his evidence honestly, and I find he was a reliable witness, bearing in mind the impact of the trauma associated with his injuries. His evidence about the context and circumstances which resulted in the incident was, in effect, corroborated by the content of the CCTV footage. Findings of fact can be made, and are made, consistent with his evidence.

Mr Anthony Mark Miloradovic

Background and routine procedure

Mr Miloradovic is a truck driver employed by Cahill Transport. On 13 January 2015, he had been working in this capacity for over three years, and still is. Over the entire period, he used a truck and trailer combination to deliver goods to Barbecues Galore at the Osborne Park complex. Occasionally, but rarely, he used the truck only.
Mr Miloradovic has held a truck driver's licence since he was 18 years old. He described the vehicle combination he operates for Cahill Transport as a 'rigid vehicle with a pig‑trailer' (also known as a dog‑trailer).
Mr Miloradovic's normal work procedure is to attend Cahill Transport's depot in the morning to collect his truck and dog-trailer, an Iveco FHL 2‑axle rigid truck registration YMJ 761 (Victoria) and dog‑trailer registration U19 053 (Victoria).
In length, the truck is 10.7 m and the trailer 6.3 m. Both are 2.49 m in width. The overall length of the combination is 18.69 m.
Having collected the truck and trailer from Cahill Transport, Mr Miloradovic would drive to Super Amart where the vehicles would be loaded. He would then deliver the loaded goods to the Barbeques Galores' stores in the metropolitan area.
Although it was not always necessary to load the dog‑trailer, Mr Miloradovic would not know this until the vehicle was loaded at the Super Amart depot. For this reason, the dog‑trailer would remain attached to the truck during the delivery run. As Mr Miloradovic said:
And how frequently do you - did you, this is in January 2015, how frequently did you drive in there with the rigid - with the trailer as well as the rigid? - Every time that I went there.
So you always took the trailer? - Generally have the trailer. It's very rare that I don't have it especially the main reason is it's because the stock is not at my yard I can't determine sizes. So even if I go to A-Mart and it ends up I can just fit it all in the rigid the trailer is with me then and still comes with me.
The evidence of Mr Miloradovic was that he would deliver to the Osborne Park Barbeques Galore store once a week, although in busy seasonal periods he might be required to deliver two or three loads.
Having loaded the truck and trailer, Mr Miloradovic would drive to the Barbeques Galore store situated at the Osborne Park commercial complex at 2 O'Malley Street. Mr Miloradovic said his normal routine procedure was to turn left from O'Malley Street into the access way, which consisted of loading bays on either side used to service the various commercial outlets.
To unload the truck and trailer, Mr Miloradovic would unclip the load restraint tarps on one side and then slide the whole curtain to expose the whole side of the truck and trailer to allow access to the goods by a forklift driver.
The procedure always adopted by Mr Miloradovic was to drive the truck and trailer into the access way and park it on the left, between Harvey Norman and its associated car bays and opposite the Barbeques Galore loading bay on the right side. The right side of the truck and vehicle would be unloaded by a Barbeques Galore forklift operator - the truck first, then the trailer.
Once the right hand side was unloaded, Mr Miloradovic would reverse the truck and trailer back down the access way towards O'Malley Street, before then driving forward on the right side of the access way to a position almost directly opposite the Barbeques Galore loading bay. He would then undo all the curtains on the left side of the truck. At this stage, according to Mr Miloradovic, 'I even block off nearly all the Barbeques' entry so nothing can get in there'.
Once the left side of the truck and trailer is unloaded, Mr Miloradovic would reverse the truck and trailer back down the access way across O'Malley Street (and oncoming traffic) so he could then drive forward in the direction onto O'Malley Street where he initially came from.
Mr Miloradovic was asked why he adopted this procedure. He said: 'When I first started I did one day of training on it and when I went there that's what the guy did that had the truck before me and I just followed. It is the easiest way'.
Mr Miloradovic said that no other tenants or users of the driveway had ever given him any directions as to how he should go about his unloading for Barbeques Galore.
I interpose that a safer procedure would be to move forward first and then to reverse back into the left side of the access way before parking adjacent to Barbeques Galore. This option to minimise the risks associated with not being able to see behind the trailer does not seem to have been considered by Mr Miloradovic. In my view, any risk assessment of the workplace would have identified this option as being preferable in the circumstances.
Mr Miloradovic did say that, when he was parked there, he had been asked to move the truck a few times, in particular by a person who he thought worked for Harvey Norman and, occasionally, he would ask others to wait five minutes until he was finished and ready to move.
By reason of the trailer, it was not possible for Mr Miloradovic to drive forward to the rear of the access way and the back carpark area to turn around (by reversing) so as to be able to drive out forwards.
There was evidence that this is the procedure usually adopted by other rigid trucks and vehicles involved in deliveries and collections in the access way. They would enter forwards and would leave the access way forwards by driving to the rear of the premises, reversing back and then driving out forwards.
Because of the attached trailer to the truck being driven by Mr Miloradovic, this manoeuvre was not open to him.
I find Harvey Norman employees, after over at least three years (although it is not known how long the truck and trailer combination had been used in this way by Mr Miloradovic's predecessor) were aware of Mr Miloradovic's routine procedure of ingress and egress to and from the access way.
Mr Miloradovic said there were always forklifts from Harvey Norman and Barbeques Galore operating in the access way, unloading all kinds of vehicles, although 'mainly for Harvey Norman'. The vehicles consisted of 'small, rigids and cars and bigger utes and things like that'. He described the access way as a 'slip lane', which he said was used by all trucks to park for the purpose of unloading goods.
I observe that obviously smaller vehicles could utilise the unloading bays and there is evidence that sometimes Harvey Norman received and loaded trucks inside its warehouse.
The use and business of vehicles using the access way is such that, according to Mr Miloradovic, sometimes he had to wait before he could enter the access way because of the presence of other trucks. Sometimes this would be on O'Malley Street, and sometimes he would drive in and wait behind other trucks that would then drive forward, turn around and drive out, creating space for him to park where he needed to.
Because the truck is a twin turbo, Mr Miloradovic generally left the engine running for 15 to 30 minutes while he was parked in the access way for unloading. This added more general ambient noise to the area.

13 January 2015 – the day of the accident

Mr Miloradovic said the day started as any other day on which he was required to make a delivery to Barbeques Galore at Osborne Park.
On arrival, Mr Miloradovic turned left from O'Malley Street into the access way and drove forward on the left-hand side before parking the truck and trailer opposite the Barbeques Galore loading bay - restricting access to the Harvey Norman loading bays on the left side. He left the vehicle running.
Working backwards from the front of the truck he unclipped the curtain and then did the same with the trailer. Sometimes there was a delay before the forklift driver from Barbeques Galore is available to unload the truck. Sometimes the wait can be five minutes after the whole side is opened up. There is no evidence whether there was any delay on this occasion.
The trailer was unloaded first. Mr Miloradovic closed the curtain and the rigid was then unloaded. Because it is a 24 space truck Mr Miloradovic estimated the forklift would undertake 'probably at least 10 and some oversized pallets at least 10 times for the entire truck, or the entire side'. The evidence is unclear as to whether about 10 or 20 forklift movements were required to unload both sides.
Having unloaded and closed up the curtain on the right side of the truck and trailer, Mr Miloradovic said he had 'a brief look down to see that there was no‑one behind me, or there was nothing there. I didn't see anything, unfortunately'.
Mr Miloradovic then got into the truck and, because of the cars parked in the car bays on the left side, looked in the left rear side mirror before proceeding to reverse the truck and trailer. He readily accepted he had a blind spot immediately behind the trailer which he could not see into when reversing the unit.
He said, 'I had a look back down the side to make sure nothing was beside it. … I didn't see anything'.
In cross‑examination, Mr Miloradovic admitted he did not know how far he was from the driver's door when he looked behind the unit before getting into the cab to reverse. Clearly he did not step far enough back to be able to see Mr Gallagher's Jeep. On any view, it was a cursory check and totally inadequate in circumstances where, on his own admission, he knew he had a significant (and obvious) blind spot behind him.
Mr Miloradovic maintained he could hear the reversing beacon on the truck (not the trailer) in the cab when he reversed.
Mr Miloradovic did not attempt to use the reversing camera on the rear of the trailer because, according to him, he could not see the picture on the screen in the cab due to the sunlight. Based on his evidence, it would appear it was necessary to open up a second screen to access the picture from the reversing camera on the trailer (as opposed to the camera on the truck).
In any event, his evidence was plain, and I find that he did not attempt to use the reversing camera because, according to him, 'the sun comes in, I just can't see the screen. The sun's shining across it'. He indicated that the white lights on the trailer were reversing lights (although the evidence is that they were not working at the time and therefore could not have warned Mr Gallagher that the truck was about to move backwards).
Mr Miloradovic accepted that the left and right indicators could be operated at the same time as hazard lights, but he did not think to do this.
As mentioned, Mr Miloradovic readily accepted that there was a blind spot behind the trailer attached to the truck where he could not see when reversing.
Mr Miloradovic maintained that, since the accident, he gets down on his hands and knees in front of the truck to look underneath it 'so I can make sure 100% there's nothing there'.
Having said that, Mr Miloradovic then said 'cars can come and go really quickly' (based on his experience) and 'that way then I quickly jump in now and I put it straight into reverse in case someone does come behind me while I'm preparing to manoeuvre'.
In my view, even this precaution, albeit an attempt to use best endeavours, is fraught with risk and danger. On Mr Miloradovic's own evidence, there is still a period of time whereby a vehicle could park behind him, or a pedestrian walk in the blind spot before he is able to enter the cab and start reversing. The backwards movement of the vehicle could not in any circumstances, on its own, be sufficient warning and an appropriate precaution to avoid legal liability in a place where members of the public are invited and have access.
In addition, Mr Miloradovic did not say that he now operates the indicators at the same time as a hazard warning light. Neither, it appears, does he use the rear reversing camera.
Finally, he does not use a spotter to assist him when reversing in the access way (e.g. the forklift driver involved in the unloading). In my view, all of this is contumelious of the risk he is taking when reversing the combination in the access way. Unfortunately, it indicates nothing has really changed, even though somebody was seriously injured. As will be seen later in these reasons, it also seems Harvey Norman has not made any material changes to address the risks to which it exposes its customers to.
Mr Miloradovic's response to the risk, after the event, is equally of grave concern and demonstrative of a reckless attitude to the danger he admits he is creating whenever he needs to reverse the truck and trailer.
Saliently, it was put to Mr Miloradovic in cross‑examination:
Did it ever occur to you that this is just a fundamentally unsafe vehicle combination to use in that circumstance at all when you can't see what's behind you?‑‑‑Well, I'm employed by a company, I'm told to go do what I do. I don't wake up in the morning and go jump in trucks and drive around for fun, I do it for a living. I'm – I'm told this is what you've got to do, and I have to go deal with it.
On this occasion, having entered the cab to reverse the truck to reposition it on the right-hand side of the access way adjacent to Barbeques Galore, Mr Miloradovic said he looked in the left mirror and
when I started moving, a guy jumped out from behind the truck waving and so I stopped the truck suddenly, as quick as I could cause he looked like he was in a bit of a panic, and I thought 'I've hit a car'. So I put the power brake – I moved forward, he – he actually said move forward. He said 'Move forward, move forward'. So I did, I moved forward, I put the park brake on and took it out of reverse. Jumped out, went back there and that's when I'd seen Mr Gallagher had been hit.

As instructed, as part of his training by Cahill Transport, Mr Miloradovic took photographs of the scene and also provided some assistance to Mr Gallagher including, it would appear, using Mr Gallagher's mobile telephone to ring his employer so that they could attend the incident.
Subsequently, an ambulance, the police and WorkSafe inspectors attended while Mr Miloradovic was there. In this period of time, he moved the vehicle to the right-hand side of the access way to complete the unloading process to Barbeques Galore.
Mr Miloradovic was cross-examined in relation to his answers on oath to interrogatories provided in the course of the proceedings in relation to the screen for the reversing camera. The sworn answer in the interrogatory by Mr Miloradovic was that 'the screen did not display the rear view from the trailer because it was not working'. In evidence, Mr Miloradovic departed from the plain meaning of the sworn interrogatory by suggesting he was not sure what he was attempting to say, because he was only '80% sure they weren't working'.
In cross‑examination, Mr Miloradovic, in defence of what happened maintained, 'all trucks have multiple blind spots' and it was not a legal requirement to have a beeper on a trailer. Apart from this assertion by Mr Miloradovic, neither party sought to prove its truth.
Mr Miloradovic maintained he accepted responsibility for the accident because he 'was driving'. However, he said he did not expect anybody to park behind his vehicle and he was 'shocked'. He maintained 'it would have taken the guy five seconds – "Hey, buddy. I'm parked behind you. Don't – you know" '. He maintained, in many places and on many occasions, that he is often informed by people that they have parked behind him. He maintained 'the issue was they should have told me he was there'. This carries with it a degree of a failure to accept responsibility for what happened and a lack of remorse.
It is presumptuous for Mr Miloradovic to assume that other users of the access way would somehow know he would reverse in order to change sides or exit the access way. Any person who did not have prior knowledge could reasonably assume, given the size of the trucks in the access way, that they would drive through in order to exit. This is especially so given the small size of the common area, its purpose for access by multi-tenants, the proximity of the parked vehicles on either side, the presence of active forklifts and occasional pedestrians. This in part, together with Mr Miloradovic's admitted knowledge of the blind spot, is no doubt why Harvey Norman in its written submissions contended that the conduct of Mr Miloradovic 'was arrogant and reckless and causally overwhelming'.
Mr Miloradovic said in cross‑examination he did not tell anybody at Harvey Norman that he had a blind spot. His evidence was, 'The only time Harvey Norman had ever spoken to me was abuse and swearing at me, so I don't really talk to them; nor do I want to'.
At the time he gave evidence, I inferred he was talking about before the incident. In any event, there is evidence from Harvey Norman's own staff that they did serve customers parked in the access way and the only reasonable inference is that this was because, for whatever reason, the customer could not obtain access to the pick‑up bay in their vehicle.
On this occasion, Mr Miloradovic said he did not feel the impact with the Jeep and, but for seeing the Harvey Norman employee 'jumping out', he would have kept reversing and thereby moved the Jeep further than he had.
Mr Miloradovic said he had never asked anybody to act as a spotter for him before reversing the truck and trailer in the access way.
Mr Miloradovic maintained in cross‑examination that he had spoken to people at Barbeques Galore about the problem he had when reversing but, by inference from his evidence, he had not sought any assistance at any time before moving the truck and trailer forwards or backwards.
Mr Miloradovic was a credible witness who gave his evidence in a forthright and frank way, perhaps to his own detriment, and without a full appreciation of the position. In any event, he did accept his fault in not looking properly to determine if it was safe to reverse the truck and trailer.
However, his evidence about his claimed inability to see the image on the reversing camera monitor in the cab is of concern. He did not dispute he did not use the reversing camera and it would appear he made no attempt to have the correct camera image displayed on the monitor, let alone inform his employer, Cahill Transport, of the danger to which he was exposing people and property every time he reversed the truck and trailer combination.
Cahill Transport is not a named party to the proceeding and it is not appropriate to comment about this obvious risk, as admitted by its employee (Mr Miloradovic), or any culpability it may have as a result of allowing its employees to operate the truck with the known blind spot and deficient reversing camera.
It is contended by Harvey Norman that Mr Miloradovic did not say in his evidence that his routine procedure on every occasion he had a trailer attached to the truck was to unload in the manner I have described above. He was not directly challenged in cross‑examination to the contrary. As I mentioned to counsel, having heard his evidence, this was my unequivocal understanding of what he said.
With respect, I do not accept the position advanced by Harvey Norman based solely on the transcript of the evidence (and, in hindsight, after the evidence given by its last witness, Mr Uhrhane) that Mr Miloradovic was just describing what he did on the day of the incident. The transcript of a trial is, of course, simply a tombstone of the living organic process in the courtroom. A strict literal interpretation might be strained to achieve one interpretation as opposed to another, by relying just on transcript.
I mention this because the evidence of Mr Uhrhane was that, in the period September 2000 to November 2014 (some months before the incident), he only ever saw the Cahill Transport truck and trailer parked on the right‑hand side of the access way and never on the left side. In fact, he said he had never seen Mr Miloradovic in the overlapping period before he left Harvey Norman. Even if Mr Uhrhane's evidence is accepted in this regard, it does not mean that Mr Miloradovic did not follow his routine procedure each time – it just means that he only saw the truck on the right-hand side after it had been re-positioned in order to unload the left side of the combination. Although I have no expert evidence from a statistician, the probability of this, whatever it is, must be rejected for at least the following reasons.
First, the likelihood of Mr Miloradovic manoeuvring the truck and trailer combination multiple times to position it where the forklift driver can access each part of the right side in the manner described is contrary to human behaviour. Why make the job harder when there is a simple more convenient way (especially if on Harvey Norman's case, there is not much traffic in the access way anyway)?
Secondly, there is evidence from Harvey Norman's own employees that customers were served while parked in the access way. As mentioned, the only reasonable inference is that, for whatever reason, the customer has not been able to drive their vehicle into the pick‑up bay. A reason might be that the bay is either occupied by another customer or it is blocked (wholly or partially) by a truck.
Finally, there is no evidence that Harvey Norman (before or after the incident) gave any consideration to the risks as a result of a customer not being able to access the pick‑up bay. This includes the associated risks to its own staff as a result of loading a parked vehicle 'in the middle of the road'.
If an assessment of the hazards had been undertaken by Harvey Norman, there would be a record of the frequency of the occasions that the risk was created (and a record of the actions taken or implemented to minimise any obvious risks). This is an observation only because, obviously, the absence of some thing cannot prove the existence of the same thing – but is made in the context of determining what is a just and equitable contribution, if fault is established on the part of Harvey Norman.

Vincent Christopher Matiu

Mr Matiu worked as a storeman at the Harvey Norman warehouse at 2 O'Malley Street, Osborne Park between January 2014 and October 2016. He now works for a Harvey Norman retail entity in Brisbane (not commercial).
Mr Matiu said that customers would always come to the pick-up bay or loading dock to collect their goods from the warehouse. A squeeze hooter hangs on the gate so customers can get his attention.
Mr Matiu remembered serving Mr Gallagher at the loading bay gate on 13 January 2015. He collected goods for Gallagher from the warehouse and placed some of them on a trolley. He was unsure if Mr Gallagher took a box out to the vehicle. Like Mr Gallagher, his evidence of movements on the day can be compared to what was captured on the CCTV at the time. Mr Matiu's evidence was refreshed as a result of having seen the CCTV footage prior to trial.
In cross-examination, Mr Matiu was adamant he did not ask Mr Gallagher where he parked 'because [he] saw him walk out of it'. According to him, he wheeled some of the goods to Mr Gallagher's vehicle using a trolley.
Mr Matiu said the second loading bay was the 'receiving bay' where Harvey Norman received its products into the warehouse. The third doorway, he said, was where Harvey Norman loaded trucks for deliveries to its customers.
The first loading bay was utilised by customers who came themselves to collect goods which he described would be a 'variety of things', for example a microwave or a fridge. The size of the loads varied. He said Mr Gallagher had an oven, range hood and sink to collect.
The products received into the warehouse, he said, were delivered by trucks which he described as 'sometimes semis, but the smallest you're probably looking at maybe about an 8 to 10 tonner'. He estimated at the time that on average more than five delivery trucks were unloaded at the second loading bay but that it could even be a dozen. Goods, once unloaded onto the Harvey Norman loading dock, were then put away by staff.
At the receival gate he said trucks 'just parked on the road … parallel with the building'. Sometimes a forklift was used to unload the trucks and sometimes it was done by hand or trolley.
Mr Matiu described the trucks loaded at the third bay to deliver goods to their customers as 'they're only little ones, so – yeah, probably the biggest one, 8 tonne, and then the other ones would probably be about, like, 4 and a half, 5 – tonners'.
Mr Matiu was unsure of how many people were working with him in the warehouse for receiving and dispatching goods in January 2015. He thought it may have been about five.
Mr Matiu confirmed that at different times of the year the access way and the business of Harvey Norman got busier, particularly during the Christmas and January holiday period.
Mr Matiu said that he received Mr Gallagher at the loading bay gate after the customer had been sent there by someone from reception at the front of the building. Mr Matiu confirmed that sometimes customers reversed their vehicle into the loading bay if the customer was collecting a 'big load'. Sometimes he would open the gate up so the customer could reverse the vehicle inside the store to facilitate loading.
Mr Matiu said that not only trucks delivering and collecting goods for Harvey Norman and other businesses with access to the laneway utilised it, but it was also the subject of forklift and pallet picker traffic as a result of those actions. He accepted there would also be people walking in and around the access way during the course of the day, including customers who came to the gate on foot. He said there was 'quite a bit of noise in the area from engines of vehicles' and the activities described.
Mr Matiu confirmed that, when he saw Mr Gallagher's car parked behind the truck, he did not say anything to him about moving it. I also infer and find that he did not take any other steps to minimise the risk of injury, for example by informing the truck driver that Mr Gallagher's vehicle was parked behind him in order to access the loading bay which had been blocked, or by putting out orange cones to act as a warning.
As a result of the accident, Mr Matiu said a new procedure was implemented whereby they put cones behind customers' cars once they were in the loading bay itself. He described it as 'blocking the car in' so that it did not reverse out into the common access way. I infer that the person removing the cones would also act as a lookout at the time of the actual reversal of the customer's vehicle.
Mr Matiu did not think any other changes had been implemented as a result of the incident except for the placing of cones. For example, there was no instruction as to what would happen if the loading bay was already occupied or blocked by a Harvey Norman or third party truck.
In examination‑in‑chief Mr Matiu said when Mr Gallagher was struck by the trailer, he was on the other side of Mr Gallagher's Jeep, he described the warning for him immediately before Mr Gallagher was hit, as follows (ts 132):
What was that warning? - - - The - the warning for me was I could - I could hear my trolley moving and I thought it was actually falling towards the Jeep so I thought I'd take evasive action and try and catch it but I didn't realise it was the truck that was pushing it.
That was the warning to you, the noise - - -? - - - Yes, sir - - -
- - - from what you thought was - - -?- - - - - - of the trolley - - -
- - - the trolley falling? - - - Yep.
Did you have any other warning that something might happen? - - - No, well, not up to that point. It happened so quickly.
Fortunately for Mr Matiu, he was in a position where he became aware immediately before Mr Gallagher was struck by the trailer of the situation such that he was able to jump out from behind the Jeep and to wave to the driver to stop and pull forward.
It is important to set out the conclusion of Mr Matiu's examination‑in‑chief because his evidence was, in effect, intended to be that he and others (to his knowledge) only loaded customers' vehicles which were parked in the Harvey Norman loading bay itself, as opposed to the common access way (ts 133):
And you were doing that not in the loading bay or pickup bay but in the drive area where he'd parked his Jeep? - - - Yes.
Had you ever loaded in that kind of situation on any previous occasion, in - - -? - - - In that sort of - in that sort of situation?
In the access way rather than in the pickup bay? - - - Well, to be honest with you, I can't remember.
Can't remember. Had you ever seen anybody else loading goods in the access way rather than in the pickup bay who was a person employed by Harvey Norman? - - - Like - well, like I - like I said to you, it's like there's that many of us that serve customers at the gate.
Say that again? - - - I'm not the only - I'm not the only one that does it.
The loading? - - - Yeah.
Right, but had you ever - had you yourself ever seen anybody load goods - had you seen anyone loads goods, that is, Harvey Norman people loading goods, in the access way rather than in the pickup bay when you were working there? - - - Yes.
Yes? - - - Yes, sir.
Right.
I find, based on Mr Matiu's evidence and common sense (given there was no traffic management plan in place or other precautions and instructions) that from time to time Harvey Norman staff loaded customers vehicles with goods while the vehicle was parked in the active common-use driveway. In my view, Mr Matiu gave truthful and credible evidence of his memory of the incident and the work practices as he recalled them. I have no difficulty accepting his evidence.

David Carlise Cramond

Mr Cramond is the sole director of the third party, Osborne Park Commercial Pty Limited which he described is a 'franchisee of Harvey Norman'. Since 2004, it has been the registered holder of the business name 'Harvey Norman Commercial Osborne Park'. The business is carried on at Units 7 and 8, 2 O'Malley Street, Osborne Park. He said the annual turnover of the warehouse of the business in 2015 was $26 million.
Mr Cramond has been the sole director of Osborne Park Commercial Pty Limited since May 2004. However, based on the evidence of Mr Uhrhane, it appears the business has operated at the premises from about September 2000.
Mr Cramond accepted that there is a written lease pertaining to his company's business premises between various parties, but that he was unable to produce anything in writing to prove the relationship between those parties and his company.
There is in evidence a copy of a relevant lease dated 1 November 2011 between various parties described as 'the landlord' and Lesandu WA Pty Limited as 'tenant'. Harvey Norman Holdings Limited is a party to the lease agreement as a guarantor for Lesandu's obligations as tenant. Mr Cramond's evidence is that he did not control Lesandu.
Mr Cramond was not concerned about the uncertainty as to the legal basis of occupation of the premises by Harvey Norman. He was content that his business had exclusive use and possession of the warehouse premises and associated adjacent loading and parking bays since 2004 and 'that's how we've always conducted our business out of there'.
Mr Cramond explained how the first bay on the left side of the Harvey Norman warehouse is called 'a pick‑up bay', the second doorway is for 'receivables' (deliveries into the warehouse) and the third doorway is used as the 'deliveries doorway' (for deliveries from the warehouse to customers off‑site). He said the contractors' trucks which were loaded in the third bay were predominantly pantechs ranging in size from small to medium tonnage.
As to the assumed exclusive use of the parking car bays at right angles to the wall of the warehouse adjacent to the common access way, Mr Cramond assumed they had exclusive access of these carparks by reason of usage. He also relied on the notices on the wall of the warehouse stating 'Harvey Norman customer and staff parking only' with the threat 'Failure to comply may result in your car being towed at your expense'.
The evidence of Mr Cramond was guarded, and having listened to his evidence and observed him giving evidence, it was more notable for what he did not know than what he did. For example, he was asked in cross‑examination that, if he saw an unsafe practice in the common access way, would he bring the matter to the attention of Lesandu and talk to them about it to see what to do – his response was 'I guess, yes'. In examination‑in‑chief, Mr Cramond was carefully led to limit the extent of his personal knowledge of any safety issues in the common-use driveway by reference to the Cahill's Transport truck and trailer being driven by Mr Miloradovic, and no other vehicles or activities.
Bearing in mind that Mr Cramond saw the CCTV footage of the incident prior to giving evidence, his evidence in examination‑in‑chief was, in part, as follows:
Had you seen that vehicle combination yourself before that day?‑‑‑Yes, I had.
Did you, before that day, ever see it block the pick-up bay where customers would go to collect their goods?‑‑‑I can't say I can remember it ever blocking the - or noticing that it was blocking the - the bay.
Did you at any time ever see customers being prevented from accessing the pick‑up bay by that rigid trailer truck and trailer combination?‑‑‑Not in memory.
Did anyone ever tell you that it was blocking the loading bay before this incident?‑‑‑No.
…
HANCY, MR: At any time before the incident where Mr Gallagher was hit by the trailer of the truck and trailer combination, did anyone tell you at any time that that particular combination on that or any other occasion was blocking the loading pick-up bay?‑‑‑No.
Did you on any occasion before - that means any day, not just the day of the incident but at any time before the incident occurred where Mr Gallagher was struck by the trailer, did you ever see anybody loading goods into a car that was parked behind that vehicle combination?‑‑‑No.
(emphasis added)

01.17 pm	1:17	Black four wheel drive parks in Harvey Norman carpark, proceeds to enter right side of access way and parks in front of Harvey Norman loading bay.
01.24 pm	1:20	Police officer gets into passengers side of silver sedan, another gets into driver's side.
01.26 pm	1:21	Man in black t-shirt opens driver's door on black four wheel drive, storeman hauls box towards rear of black four wheel drive.

Terms used
M = Mr Miloradovic
G = Mr Gallagher
V = Mr Matiu
Notes
Note 1: Left side refers to the side looking up the access way from the O'Malley Street entrance, adjoining the Harvey Norman warehouse.
Note 2: CCTV video shows constant traffic traveling in both directions on O'Malley Street.
Note 3: The CCTV video begins at 11:47am and ends at 1:26pm. However, the counter states that the video is 1 hour 21 minutes and 46 seconds in length. There is a total of 18 minutes unaccounted for. Lapse in time is attributed to CCTV camera only recording footage when it senses movement.