Thompson v Woolworths (Qld) Pty Ltd

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, KIRBY, HAYNE AND HEYDON JJ

THELMA JEAN THOMPSON  APPELLANT

AND

WOOLWORTHS (Q'LAND) PTY LIMITED  RESPONDENT

Thompson v Woolworths (Q'land) Pty Limited [2005] HCA 19

21 April 2005
B54/2004

ORDER

1.Appeal allowed with costs. 

2.Set aside orders 2 and 3 of the orders of the Court of Appeal of the Supreme Court of Queensland made on 12 December 2003 and in their place order that judgment be entered for the appellant in the sum of $105,327.92.

3.Respondent to pay the appellant's costs of the proceedings in the District Court of Queensland.

On appeal from the Supreme Court of Queensland

Representation:

B W Walker SC with M E Eliadis for the appellant (instructed by Shine Roche McGowan)

J A Griffin QC with M T O'Sullivan for the respondent (instructed by Blake Dawson Waldron)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ, McHUGH, KIRBY, HAYNE AND HEYDON JJ.   In an action brought in the District Court of Queensland, and heard by Samios DCJ, the appellant, who sustained a back injury while delivering goods to the respondent's store at Stanthorpe, sued the respondent for damages for negligence.  She succeeded, and was awarded damages of $157,991.89.  An allegation of contributory negligence was rejected[1].  By majority (de Jersey CJ and Williams JA; McMurdo J dissenting) the Court of Appeal of Queensland reversed the primary judge's finding of negligence and ordered that there be judgment for the defendant in the action[2].  The dissenting judge would have upheld the finding of negligence but reduced the judgment by one-third on account of contributory negligence.  The primary question in this appeal is whether the Court of Appeal was justified in reversing the primary judge's finding of negligence.  There is also a question as to contributory negligence.

    The facts

  2. The appellant's action arose out of an occurrence in late August 1999.  She was unable to identify the precise date.  She made no complaint to any employee of the respondent on the day.  She first sought medical attention about three weeks later.  The appellant had previously injured her back, in another work-related incident, a week or two before the events with which this case is concerned.  Both injuries aggravated a pre-existing degenerative condition.

  3. The appellant suffered the injury the subject of this appeal while she was on premises occupied by the respondent.  However, the case is not simply concerned with an occupier's liability for hazards associated with the static condition of premises.  The appellant was on the respondent's premises for a mutual commercial purpose, and was required to conform to certain systems and procedures established by the respondent.  The case concerns those systems and procedures, and the risks they involved for persons in the position of the appellant.  It is, therefore, necessary to explain the context in which the injury…

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Details
Case
[2005] HCA 19
Decision Date

CaseChat Overview and Summary

The appeal concerned a negligence claim brought by the appellant, a bread delivery driver, against the respondent, Woolworths (Q'ld) Pty Ltd, for a back injury sustained while delivering goods to the respondent's store. The appellant had been attempting to move industrial waste bins that were obstructing the supermarket's loading dock. The primary judge in the District Court of Queensland found the respondent liable and awarded damages, rejecting a claim of contributory negligence. However, the Queensland Court of Appeal, by majority, overturned this decision, finding no negligence on the part of the respondent.

The High Court of Australia was required to determine whether the Court of Appeal erred in reversing the primary judge's finding of negligence. A secondary issue was whether the appellant was contributorily negligent. The central dispute revolved around the content of the duty of care owed by an occupier to an independent contractor entering the premises for a mutual commercial purpose, and whether the respondent had breached that duty by failing to implement reasonable measures to mitigate the risk of injury to the appellant.

The High Court allowed the appeal, finding that the Court of Appeal was not justified in reversing the primary judge's finding of negligence. The Court reasoned that the respondent, as occupier, owed a duty of care to the appellant, an entrant on its premises for a mutual commercial purpose. This duty required the respondent to take reasonable steps to avoid foreseeable risks of injury. The Court noted that the primary judge had found the risk of injury from moving the bins to be foreseeable and that reasonable measures, which were neither expensive nor difficult to implement, could have been taken to mitigate this risk. The Court of Appeal's reversal of this finding was considered an error.

The High Court ordered that the appeal be allowed with costs, setting aside the orders of the Court of Appeal. Judgment was entered for the appellant in the sum of $105,327.92, reflecting a one-third reduction for contributory negligence, as suggested by the dissenting judge in the Court of Appeal. The respondent was also ordered to pay the appellant's costs in the District Court.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside orders 2 and 3 of the orders of the Court of Appeal of the Supreme Court of Queensland made on 12 December 2003 and in their place order that judgment be entered for the appellant in the sum of $105,327.92.

3. Respondent to pay the appellant's costs of the proceedings in the District Court of Queensland.

Background

Background to the litigation

GLEESON CJ, Mc In an action brought in the District Court of Queensland, and heard by Samios DCJ, the appellant, who sustained a back injury while delivering goods to the respondent's store at Stanthorpe, sued the respondent for damages for negligence. She succeeded, and was awarded damages of $157,991.89. An allegation of contributory negligence was rejected[1]. By majority (de Jersey CJ and Williams JA; McMurdo J dissenting) the Court of Appeal of Queensland reversed the primary judge's finding of negligence and ordered that there be judgment for the defendant in the action[2]. The dissenting judge would have upheld the finding of negligence but reduced the judgment by one-third on account of contributory negligence. The primary question in this appeal is whether the Court of Appeal was justified in reversing the primary judge's finding of negligence. There is also a question as to contributory negligence.[1]Thompson v Woolworths [2003] QDC 152.[2]Thompson v Woolworths (Q'land) Pty Ltd [2003] QCA 551.The facts The appellant's action arose out of an occurrence in late August 1999. She was unable to identify the precise date. She made no complaint to any employee of the respondent on the day. She first sought medical attention about three weeks later. The appellant had previously injured her back, in another work-related incident, a week or two before the events with which this case is concerned. Both injuries aggravated a pre-existing degenerative condition. The appellant suffered the injury the subject of this appeal while she was on premises occupied by the respondent. However, the case is not simply concerned with an occupier's liability for hazards associated with the static condition of premises. The appellant was on the respondent's premises for a mutual commercial purpose, and was required to conform to certain systems and procedures established by the respondent. The case concerns those systems and procedures, and the risks they involved for persons in the position of the appellant. It is, therefore, necessary to explain the context in which the injury occurred. The appellant and her husband conducted a bread delivery service in the Stanthorpe area pursuant to a contract with Cobbity Farm Bakeries Pty Ltd. They used two vehicles. The appellant's husband drove a van, and delivered mainly to small retailers. The appellant drove a truck. She made daily deliveries to Woolworths' Stanthorpe store. She delivered at some time between 5 am and 5.30 am. The respondent's store was part of a shopping centre complex. Deliveries were made to a loading dock at the end of a lane. The loading dock led to a storeroom which was under the control of a storeman. There was a roller door between the loading dock and the storeroom. The appellant, like other deliverers of supplies, would reverse her truck along the laneway, and unload her goods onto the loading dock, from where they were taken to the storeroom. The respondent's storeman was necessarily involved in that process, for the purpose of agreeing upon the quantities delivered, and, no doubt, seeing that they were appropriately stored. The checking of quantities was done on the loading dock. The storeman was often, but not always, in or around the storeroom or loading dock area when the appellant arrived. Sometimes he was elsewhere, and it was necessary to press a buzzer to attract his attention and bring him to the loading dock. On some occasions it took up to 10 or 15 minutes for the storeman to arrive. The appellant could not unload her bread and depart to do her other deliveries without the presence and co-operation of the storeman. Sometimes the appellant's would be the first of the delivery vehicles to arrive at Woolworths; sometimes others would arrive there before her. If she arrived first, the lane was not wide enough to permit another vehicle to take her place. The appellant was a small woman. Her husband frequently went to Woolworths after doing his first delivery in order to help her unload her truck. Occasionally, he arrived at Woolworths for that purpose before the appellant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HUGH, KIRBY, HAYNE AND HEYDON JJ (dissent)
The primary judge found that the respondent "was aware of the risk of injury to the [appellant] pushing the bins and that some change ought to be made so that the [appellant] was not placed at risk of injury moving the bins." He held that the respondent "should have as a reasonable person implemented either of the measures identified by Mr McDougall in his evidence as either of those measures was not expensive or difficult or inconvenient to implement." As to the first of the measures recommended by Mr McDougall, there was nothing in the reasons for judgment dealing with the practicability of providing access to the bins through the car park except what is implicit in the statement just recorded. The matter was not explored in evidence in chief or cross-examination.The decision of the Court of Appeal In the Court of Appeal, McMurdo J, who would have upheld the decision of the primary judge on liability, summarised his conclusions as follows: "In the present case, the trial judge found that the risk of injury to the [appellant] was reasonably foreseeable. There is no basis for a challenge to that finding and I do not understand that it is challenged. In the context then of the [appellant] being a permitted entrant to premises in the [respondent's] occupation, the [respondent] owed her a duty to do what was reasonable to avoid the risk of injury from her attempting unassisted to move the bins.The content of this duty was then affected by a consideration of 'the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.' To these considerations can be added others such as the relationship between the parties, but ultimately the factual question is what a reasonable person, in the position of the respondent, would do by way of response to the risk.The trial judge held that reasonable care required the avoidance of the risk by one of two alternative courses, neither of which was said to be significantly expensive or problematical. In my view there was no error in that factual conclusion. The risk may have been obvious, but the probability of the occurrence of injury was relatively high. To the extent that the [respondent] did anything towards discharging its duty, it knew that this had not avoided the risk, and it knew or should have known that this was because the [appellant], like other drivers, was likely to run the risk of injury through the pressure of meeting the requirements of her work programme. It was, of course, a risk that came from the way in which the [respondent] organised its own business and premises. Because neither of the available steps was taken, the [appellant] remained exposed to the risk and the [respondent's] duty of care was breached." (references to authority omitted) McMurdo J found that there had been contributory negligence. Plainly, the appellant was or ought to have been aware of the risk of injury. McMurdo J did not mention expressly, but no doubt had in mind, not merely the diary note of May 1999 and the appellant's expressions of concern on previous occasions, but also the fact that she knew (and the respondent did not know and could not have known) of her recent back injury. He thought it appropriate that the judgment should be reduced by one-third, to $105,327.92.

Ratio Decidendi

Legal Principle Established

Established by:

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