Thompson v Woolworths (Qld) Pty Ltd

[2005] HCATrans 7

[2005] HCATrans 007

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B54 of 2004

B e t w e e n -

THELMA JEAN THOMPSON

Appellant

and

WOOLWORTHS (Q’LAND) PTY LIMITED

Respondent

GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 FEBRUARY 2005, AT 10.21 AM

Copyright in the High Court of Australia

MR B.W.WALKER, SC:   May it please the Court, I appear with my learned friend, MR M.E. ELIADIS, for the appellant.  (instructed by Shine Roche McGowan)

MR J.A. GRIFFIN, QC:   May it please the Court, I appear with my learned friend, MR M.T. O’SULLIVAN, for the respondent.  (instructed by Blake Dawson Waldron)

GLEESON CJ:   Mr Walker and Mr Griffin, I hold some shares in Woolworths Limited, which I assume is the holding company of the respondent.

McHUGH J:   And so do I.

HAYNE J:   As do I.

KIRBY J:   I do not, but I do go to shop at Woolworths from time to time, quite happily.

MR WALKER:   As long as your Honour does not strike hard bargains.  No, your Honours, there is no difficulty for the appellant in any of those matters.

GLEESON CJ:   Yes, thank you, Mr Walker.  Yes, Mr Walker.

MR WALKER:   Your Honours, at the outset you will have all seen in the written submissions a reference by the respondent to a proposed notice of contention for which leave is sought to have it filed out of time.  There is no opposition by the appellant to any of that which is proposed.  Whether a notice of contention is entirely the correct vehicle, as a matter of substance we accept that the issue of contributory negligence may, in some of the contingencies that may arise, need to be within the grasp of this Court and to that end we give such consent as is necessary for our learned friends to do so. 

KIRBY J:   Is the percentage in the notice of contention the same as Justice McMurdo found – it is something higher I think, is it not?

MR WALKER:   From one third to one half.

McHUGH J:   I have always taken the view it requires a cross‑appeal and special leave.

MR WALKER:   Your Honour, that is one of the reasons why I said what I said about a notice of contention.  It is not a claim to uphold, obviously, an order in the Court of Appeal.  It is a move to ensure that this Court has within its grasp an issue which, undetermined by the Court of Appeal, may nonetheless come in certain events to be an issue requiring attention and apropos what your Honour Justice McHugh has noted, and with respect, with force, we cannot consent to special leave and thereby have it granted but we give such consent as is appropriate to ensure that the issue is here.

Your Honours, Woolworths sells food from premises to which it needs the vendors of those goods, those foodstuffs, to deliver them.  That includes what has been called for a long time “our daily bread”.  My client had a contractual arrangement with the baker, the vendor to Woolworths, under which what was called a licence to carry out the delivery obligations of Cobbitys to Woolworths, the baker to the shop, were to be carried out by my client and her husband.  From that statement of common ground it can be seen that Mrs Thompson’s presence and conduct on the premises occupied by Woolworths was something in which Woolworths had, in the old language, an interest.  It had an interest in the sense that it had bargained for, presumably, daily deliveries of bread.  It required, as a matter of the vendor’s obligation, that delivery to be undertaken and your Honours can safely proceed on the basis that it required deliveries to be made in a timely fashion, so that the bread may be available when trading commenced.

KIRBY J:   On the special leave application, the Chief Justice raised the question of whether, for the classification of the duty, one approached it through the law of contract.  Of course, there was no direct contract with your client, but can it be put into that Calin v Greater Union category of entry pursuant to contractual rights, she being a beneficiary of the contract with the bread manufacturer?

MR WALKER:    Probably not, in terms of a right enforceable by my client under the law of contract.  However, for the reasons that your Honour has touched on, the analysis of the relations between the parties – the three parties I have just named – would involve, in our submission, an obligation imposed on Woolworths to permit its vendor properties to carry out the delivery which was an obligation of the baker, that is, a Mackay v Dick implied term not to do things which would prevent the other side from performing its side of the bargain.  That includes when the premises have one entry only to the one loading dock to be used by the deliverers of foodstuffs; that includes ensuring that the loading dock is available.

HAYNE J:   Available at every time?

MR WALKER:    Your Honour has, I am sorry, cut me off in a sentence.  I was going to go on:  “available” being a quality or state which will vary according to the circumstances of both the deliverers and Woolworths.  It will vary, for example, by reference to the hours when it is being unavoidably used, either by other deliverers or the times when it is necessarily being used for Woolworths’ own non‑delivery purposes.  It will also vary, according to the standards of reasonableness as to, for example, congestion either by consignments, trucks or workers.  “Available” does not mean an absolute state of complete cleanliness, utter efficiency and, as it were, open slather for my client when she chose to arrive to deliver the bread.

It follows from those matters of relationship between plaintiff and defendant that the factual attention properly paid at trial and in the intermediate appeal turned then to the question of how the parties related to each other with respect to these bins.  Some things, even with the factual contention between the parties on their written submissions in this Court, remain common ground, not having either been challenged at trial or the sounds of that conflict having now died down completely.

HAYNE J:   You have just slid from Mackay v Dick implications in the contract between bread supplier and bread purchaser to the relationship between the plaintiff and the defendant.

MR WALKER:   I hope not to perform any slide.  I referred to Mackay v Dick in order to answer Justice Kirby’s question about what the role of contract would be and I have taken the position that my client did not have and certainly did not press any contractual claim herself, as it were, a third party beneficiary of an implied obligation owed by purchaser to vendor.

The relationship between my client and Woolworths was one which in a highly familiar fashion comes about because of a contract for the course of conduct which whether proved or not is of a kind commonly governed by a contract, a contract between others.  It came about, in short, because Woolworths expected its deliveries, wanted it deliveries to be made and therefore wanted those who were appointed delivery drivers under whatever mode of appointment - another contract, a mere permission, an ad hoc assignment, employment, independent contract; it does not matter – wanted those people who were the assigned delivery drivers to attend at its premises in, as I say, timely fashion and to unload.

In this case this was no mere fleeting contact intended by Woolworths with delivery drivers such as Mrs Thompson because it emerges from the evidence, appeal book 159, line 35, that the expectation of Woolworths fulfilled by Mrs Thompson was that she would not merely take the bread from her truck in the crates and load them onto what are called the dollies but she would also usually herself wheel those dollies into the store and it would be her job indeed to stack the supermarket shelves with the bread, that being, in our submission, a highly concrete physical demonstration of the extent to which it was the desire, intention, interest, expectation of Woolworths that Mrs Thompson attend to carry out the business of bread delivery via their loading dock and thus ‑ ‑ ‑

HAYNE J:   Again, you slide from the expectation which Woolworths may have under its contract with the supplier to the position of the employee of the supplier.

MR WALKER:   She was not an employee, but, for reasons I have already put, it would be immaterial ‑ ‑ ‑

HAYNE J:   The licensee, the person engaged by.

MR WALKER:   Your Honour, I do not seek to elide or ignore any distinction between the contractual position between vendor and purchaser and the position at common law between occupier, who happens to be purchaser, wishing to receive goods, and any person who happens, by any arrangement, to be the person delivering the goods to the premises as required under a contract, and therefore vis a vis the delivery driver as expected, as a matter of the physical dealings between them, between occupier and delivery driver.

HAYNE J:   I raise the point with you because it seems that the matters you urge would reflect upon an action brought by the delivery person against the person engaging them.  Let it be assumed to have been a master servant relationship, which it was not, it might have founded a claim against the employer.

MR WALKER:   It might have, it might have.  I do not say would have, but certainly it is something that may have arisen for consideration.

KIRBY J:   But that is if we are thinking within the paradigm of contractual relations.  We are thinking in the paradigm of tort ‑ ‑ ‑

MR WALKER:   There is no ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ and everyone knew that your client was the person who delivered the bread.

MR WALKER:   Yes, quite so, and you have, personally, Woolworths, by its human agents – the storeman, to whom your Honours have seen references, spoke with her, dealt face to face with her and her husband about the deliveries.  In short, there is nothing unusual – indeed, it is an extremely familiar, mundane matter – that a duty of care enforceable at common law arises between people by dint of arrangements, conduct, routines or systems themselves brought about in response to or as part of contractual relations between one of them and another person.

The next step, in our submission, therefore is to pay close regard, as has been done in the courts below, to how in the circumstances of that relationship and those expectations these bins played the part they did in the accident that occurred.  Your Honours will have seen a plan prepared on behalf of my clients at 378 of the book, a plan that one seems to need read by turning it around in sequence to read the legends in it, but as Figure 1 on page 378, that is Mr McDougall’s report which had been tendered at the opening at trial, one sees “our truck” – that is the plaintiff’s and her husband’s truck – indicated in the sketch just near the beginning of what could be called the driveway and then the two industrial bins again sketched.  There is no suggestion this is to scale.  One sees the stick figure and the arrow “Thel” - Thelma, my client - and then moving further up the page, “loading dock” in the cross-hatched area and then one sees the “enclosed area for bins” to the left-hand side where those heavy military map‑looking arrows depict how the industrial bins are meant to move.  Now, it is an incomplete sketch because there was lattice as well that your Honours will have heard about, but that is the general orientation of the areas which were the subject of more detailed evidence at trial.

KIRBY J:   In the detailed evidence, did it reveal whether or not that was a level surface?  One of the theories that the trial judge accepted was that the bin should have been put at a place where they could be more conveniently picked up and left.  Was that, as it were, to the left of the loading dock area?

MR WALKER:   Yes, the public car park that your Honour is referring to is an area further to the left and above, that is in the left–hand top corner, and that is an area to which access would need to be given by what is now called in the respondent’s written submissions structural alterations, but one should not be too struck by that abstraction.  In specific terms, that involved putting a gate in a wire mesh fence and re‑levelling some concrete paving, or either re–levelling or extending the width of some concrete paving. 

Could I then take your Honours to page 303.  There is a photograph that permits at least visually by estimate some notion of scale of my client and one of the bins.  The bins, as your Honours know, were very heavy.  They were on wheels, and they are of the kind that are adapted for mechanical movement, notwithstanding the evidence shows they were very often manoeuvred manually by males and by my client, a female.  Now, the bins were an essential part of Woolworths’ operation of its business on and from the premises it occupied because they were the means by which the rubbish was moved from Woolworths to the sanitation system.  In a shopping operation, it is hard to imagine anything more essential in terms of the inflow and outflow of goods.  Once one has taken account of the delivery of foodstuffs to be purchased, the asportation by customers who have purchased them, it is the generation of all the rubbish that then would be the other major physical movement of material. 

So there can be no doubt that this is an integral part of what might be called the materials or goods handling exercise involved in Woolworths’ business, Woolworths’ operation, being the operation or commercial business for which deliveries by my client were an essential part in the interest of Woolworths.  There can also be no doubt - and I have warned your Honours against treating Figure 1 on 378 as to scale - that as the premises occupied by Woolworths were configured, the industrial bins and the delivery trucks of people like my clients had to go down the same route, the one, the garbage trucks, in order to empty the bins, the deliverers in order to get to the loading dock.  That was a matter of Woolworths’ responsibility both historically and from time to time as a continuing matter.  Woolworths had chosen that, and in terms of what has been called in some of the individual contractor cases, matters of co–ordination, there can be no doubt that it was squarely in Woolworths’ camp how they co–coordinated the literal movement of goods in and rubbish out.  That co–ordination involved the operations, not quite truly independent, but in many ways in the eyes of the law, independent of Woolworths, of other people - not only deliverers such as my client, but also the council garbage contractors or staff, and your Honours have heard how they could not be relied upon like the 1 o’clock gun.  They would arrive not quite randomly but at times which could not be faithfully relied upon by anyone who, for example, would be organising teams of workers from within Woolworths to move industrial bins. 

That, in our submission, rather than shifting this question of co‑ordination away from Woolworths’ responsibility merely rendered, of course, more overt consideration of matters, part of the reasonable response of Woolworths to any risks which it ought to have appreciated were created by the way in which it had configured the premises and it expected the various people, the garbage contractors, delivery drivers, its storemen, to work in and around and with each other.

We then come to the question which is probably at the heart of the dispute from day one of the first aborted trial through to now.  Does it destroy actionability for the occupier who would otherwise, by reason of the matters I have already touched upon, clearly be subject to some duty of care owed to my client, as a destroy actionability by avoiding there being any content or scope covering what is required for her recovery in this case, to observe that it is an obvious risk of injury for any of us, any human being, to overexert themselves, to put excessive strain on their physical frame, in ordinary work conduct by pushing a large object.

The first thing, of course, to be said is that as good English it is, of course, obvious but almost circular to say that overexertion is a risk.  The prefix “over” tends to do that work already.  It is overexertion because thereby a risk of harm is created, and it is important to note in relation, for example, not only to the obviousness point upon which the Court of Appeal founded, but also on the contributory negligence point which would be raised if we were otherwise successful before your Honours, that overexertion involves something in the nature of – perhaps instinctive, perhaps considered – calculation on the part of a human being.  How hard can I push in this particular circumstance without it being too hard?  Now that, in our submission, provides an appropriate context for consideration of what is, we respectfully submit, over‑glibly characterised merely as an obvious risk.

The second aspect of the way in which my client failed in the Court of Appeal and which has remained from the beginning in dispute between the parties is the recourse which, on the evidence, could have been had and had been had in the past to what I will call “the buzzer”, the buzzer being a means by which - not just for the purposes of summoning help to shift heavy bins, but for any purposes for which a storeman might be necessary, particularly in the reception of deliveries – outsiders - delivery drivers, for example – could inform the staff of Woolworths inside the premises, perhaps behind a closed door, that there was somebody at or near the loading dock who wanted the attendance of a storeman.

We have collected in the written submissions – I will not take your Honours to any of the passages – the material which shows and the findings which are not challenged, that the buzzer could only be described as an unsatisfactorily working system for the purpose of co‑ordinating the deliveries from a number of different vendors and suppliers to Woolworths, bearing in mind the unpredictable nature of how long a delay may be caused.  I will come back to some of those specific findings when I come to certain of the questions of causation.

GLEESON CJ:   Was it part of the responsibility of the storeman to respond to the buzzer and move the bins if asked to do so?

MR WALKER:   That is not clear, from which I mean there is copious evidence that, what I will call “the good one”, did.  There is also evidence from what I will call “the bad one” that he did not always and was not sure that he should.  In particular, was not sure that upon seeing that there was a bin to be moved it was part of his job to move or help move that bin.  But your Honours ought to proceed on the basis, which is always obvious ‑ ‑ ‑

HEYDON J:   The good one is Frank Thompson and the bad one is Mr Bennett?

MR WALKER:   That is right.  It is also, in the nature of things, obvious, as it were, that a buzzer system was designed to summon people.  So another answer to your Honour the Chief Justice is the evidence surely reveals by the very existence of the buzzer system that people were expected to respond to it.  The question acute in this case was, upon response – that is if one can imagine the hatch being opened in the door – the faces look at each other, what then?  It was clear on the evidence that Mr Bennett, for one, did not accept that to him there had been clearly, unequivocally assigned a task of assisting someone such as the plaintiff in moving bins.

HAYNE J:   Now, at what level of analysis is this occurring?  At the level of duty, at the level of breach?

MR WALKER:   At the level of reasonable response to perceived risk.  Perhaps I need to go back one step in order to put that in the right sequence.  There is no issue between the parties that for a person of the stature of the plaintiff there was risk presented.  Indeed, the defence pleaded it specifically.  There was an obvious risk presented, they said, if she tried to move them manually.

HEYDON J:   Did you not lose in the Court of Appeal on the question of the width of the duty as distinct from ‑ ‑ ‑

MR WALKER:   Yes, quite so.

HEYDON J:   Well, does that stand with your previous answer to Justice Hayne? 

MR WALKER:   Yes.

HEYDON J:   I thought you said this was breach analysis?

MR WALKER:   No, I said reasonable response.

HEYDON J:   Well, is not reasonable response Shirt breach analysis?

MR WALKER:   I am sorry, yes.  The first part of a breach analysis is to ascertain what would have been the reasonable response; the second part to compare what was done with that, yes, your Honour.

HAYNE J:   So where are we, with duty or breach or both?

MR WALKER:   Both, your Honour.  The scope of the duty is to, in general terms, do that which is reasonable by way of response.  If the answer to that is nothing different from what you did, which may be the same as nothing, then it could be said and can be said that the scope of the duty did not include doing or refraining from doing that which is the impugned act or omission.

HAYNE J:   The duty could be stated as to take reasonable care for the entrant.

MR WALKER:   That is right.

HAYNE J:   The breach complained of is that what?  You should have stopped me shifting the bin.  You should not have had the bin there.  You should have had someone who would assist me to move the bin.  Now, I have read the particulars and they are cast in sufficiently general ways to encompass all of the above.  I just wanted to know the way in which you are putting it.

MR WALKER:   Yes, thank you, your Honour.  If I just give a reference to that which, with great respect, entirely justifies Justice Hayne’s comments – page 9, subparagraph 8(h), for example.  There are two, your Honour.  The first is that the reasonable response would have been to configure the bin area so as to arrange for the bins to be attended by the garbage men otherwise than through the driveway to the loading dock.  That is the first one, that is the one that requires a gate in a different part of the fence and that is upheld by his Honour.  That was one of Mr McDougall’s expedients. 

The second one, and your Honours will recall that in the critical passage his Honour talks about adopting either of the expedients of Mr McDougall, a somewhat obscure expression because on my count there are more than two in Mr McDougall’s report, but properly understood in light of all of the evidence to which we have given reference in our written submissions it means the second one is the clear and unambiguous instruction which comes in, if you like, has two characters to it, we will do it, you must not do it.

HEYDON J:   Is not the position - the judge set out four on page 417 - (a), (b), (c) and (d).  Are not (c) and (d) just qualifications and improvements to (b)?

MR WALKER:   Yes.  It is paragraph [37], page 417, (a) and (b) which are pretty closely reproducing what Mr McDougall said at page 376, I think, your Honours.  I will just take your Honours to that – 396 to 397.  It is not verbatim, but what Justice Heydon said is, with respect, how that ought to be interpreted and particularly how one therefore should read at page 434, paragraph [93] where there is a reference to “either of the measures identified by Mr McDougall”. 

I am reminded that in relation to the first of those one sees the particular at page 10, subparagraph 8(n) at line 7.  The procedural controls referred to at page 417 in paragraph [37](b), as I say, involve that there was the positive allocation in clear terms, unmistakable terms, to Woolworths employees of the job to get these bins out of the way of the deliveries.  The second which is, I suppose, simply part of exactly the same clear allocation of responsibility is to make that an exclusive responsibility by prohibiting the others.

There is a new factual contention raised in this Court which on our reading of the record – I will stand corrected if there is something that neither party has brought to light in their written submissions – was not the subject of testing factual exploration below, and that is, whether or not my client would have observed a clear and unambiguous prohibition.

It is pretty clear from the combination of [93] and [94] on page 434 that the trial judge thought that there would have been an effective chain of causation by her having been protected from what she did do by the procedural controls which are the second of the measures referred to by Mr McDougall.

HEYDON J:   You say she was not asked about that in cross‑examination?

MR WALKER:   That is right.

HEYDON J:   Did she say anything about it in‑chief?

MR WALKER:   Could I take your Honours in‑chief to page 109, 35.  The short answer to your Honour’s question is, no, not really.  So just after line 20:

Did Mr Thompson –

that is not her husband but Mr Frank Thompson the goods storeman –

ever tell you that it was the sole responsibility of Woolworths or some other person to move the bins?---No-one ever told me whose place it was to move the bins; so I didn’t know whether it was the Council’s responsibility after they’d emptied the bins or whether it was Woolworths’ responsibility.  I didn’t know whose place it was to do it.

That is not at all the same as, “Would you have desisted from trying to move it had there been clarity?”, where according to that evidence there was in fact confusion.

HAYNE J:   Does the evidence reveal who moved the bins from their storage place out to the point where they were left after collection?

MR WALKER:   I will have that checked your Honour.  I do not think it is possible to be exhaustive as to that matter.  There are two possibilities obviously in the movement of those bins from what I will call the latticed area, the storage area, to the obstructing position.  I think the evidence most suggests that that is just where they happened to be left after the garbage truck had done its upending exercise.

HAYNE J:   Darth Vader-style action.

MR WALKER:   Yes, that is right, and that I think means by inference that it was the garbage people who had left them there, presumably by having moved them there.  What I cannot tell your Honour off the top of my head is whether the evidence shows that they had been previously readied for garbage removal by Woolworths’ people putting them in the obstructing position, presumably at an hour when no deliveries could be expected, going back to my qualified availability point.  We have, for example, at 234 ‑ ‑ ‑

HAYNE J:   At line 26:

Who was taking the industrial bins from the latticed area?---The council workers.

MR WALKER:   Yes.

HAYNE J:   It is not beyond human experience that those collecting rubbish do not quite leave the receptacle where first it was found.

MR WALKER:   The parallel lines, right angles and concealment are not top of their order of priorities, your Honour, and with respect, neither need it be; they have their own delivery or collection schedules to stick to.

McHUGH J:   The trial judge expressly found, did he not, that the council workers would not put the bins back into the latticed area.

MR WALKER:   That is right, they just leave them, and there is no question and no dispute here that Woolworths knew about all of that.  Can I attempt a rapid summary of what we say the evidence - all the findings are set out in our written submissions from the trial judge, not challenged in the Court of Appeal - by way of summary and conclusion as to what this Court would be satisfied has been established as within Woolworths’ knowledge.  We do not have to talk about constructive knowledge, we are talking about what Woolworths demonstrably knew through its human agents about this loading dock, about the obstruction by the bins.  They knew that the bins were an essential part of Woolworths’ operation; they knew that they were routinely, on the schedule the evidence reveals, moved by the garbage collection operation into a position that obstructed delivery.  They knew that deliveries were an essential part of Woolworths’ business.  They knew that they were heavy.  They knew that delivery drivers were wont to do two things:  one, move them; two, complain about having to.

Against that, one can then add a few more detailed observations about what Woolworths’ conduct by its human agents reveals about its response or reaction to the risk which – it accepts it by its pleading and by its continued stance in this litigation – was a risk of which they were aware for people such as my client.  We stress, by the way, that is not people typed by sex, that is people typed by physical stature.

Now, they ought to be taken to know, because it is part of human understanding, that delivery drivers, male or female, come in what might be called all shapes and sizes.  They knew – in fact, real play is made of this in their written submissions in this Court – that male delivery drivers, including those named, the evidence from whom is referred to in both parties’ written submissions in this Court – often resorted to moving the bins themselves when obstructed.

Indeed, they say, that is why they do not accept that they knew of a risk to males.  It is, in our submission, a new and irrelevant intrusion of a non‑issue into the argument at this stage, but it is worth observing this about it.  It is an extraordinary proposition that because some men on some occasions moved these extremely heavy bins designed for mechanical manipulation that one did not become aware or simultaneously understand that overexertion would be a very likely possibility and that overexertion very often caused injury.

But leave aside the question of risk to people who are big and burly.  They accept the risk for the lady.  They understand that the buzzer system does not always operate as a means by which ordinarily expected, timely delivery to a loading dock that they have, by their configuration, left vulnerable to this kind of obstruction – they know that that does not operate.  And they know that one of the responses to the inadequacy of the buzzer system is precisely what they make such play of and rely on in other contexts, namely, that delivery drivers are wont to move the bins themselves.

Not only, therefore, was Woolworths negligent by failing to have a system about “Press the buzzer, we will move the bins, you must not”; there is no such system attempted to be shown.  Not only did they not have it, as it were, in effect, as a neglected placard on a wall; they did not have any conduct showing that any such habit had worked itself out informally or had been the subject of interaction, interdependent operations, in the coordination necessary of deliveries, garbage and storeman duties.

KIRBY J:   What was the weight of the bin?

MR WALKER:   It was 350 kilos, although – they are on castors, of course ‑ ‑ ‑

GLEESON CJ:   I do not imagine anybody tried to lift them.

KIRBY J:   It is just a bit of a suggestion ‑ ‑ ‑

MR WALKER:    I do not think even I would suggest that would be mere inadvertence or misjudgment, your Honour, no.

KIRBY J:   During the special leave, Mr Griffin put some emphasis on the fact that they were on rollers ‑ ‑ ‑

MR WALKER:    Yes, castor wheels.

KIRBY J:   The suggestion was, as I understood it, that it was not all that difficult to move them despite their weight, so long as you had sufficient size yourself.

McHUGH J:   The evidence was, was it not, that the pushing force to get them moving was 19 to 21 kilograms, and then some particularly heavy bins, it could be as high as 30 to 40 kilograms.

MR WALKER:   And it is common ground, hence their repetition of the obvious risk, obvious to them, as well as they say to my client, that for someone of her stature - they knew that people of her stature were among the delivery drivers, because they knew her.  For somebody of her stature, that was over the accepted prudent limit.

KIRBY J:   But if you look at the reasonable system that could be put in place, and think of theory 2 of the primary judge, that is to say, shifting the pick–up point to the car park, you have to then take into account that you have to move heavier filled bins to the car park.

MR WALKER:   No.  The truck simply comes.  There is no more movement of bins if you put the gate on the other side of the storage area.  There is exactly the same movement of bins.  The truck has to come up to a gate, an opening in the storage area, and the bins have to be upended.  There is no suggestion anywhere, your Honour, that what I call the car park solution involved a longer trip or materials handling of loaded bins.

KIRBY J:   The rubbish is in the store, and you have to get it from the store to the bin.

MR WALKER:   No, but we are not moving where the bins are being stored.  We are just making an opening in the side of the storage which is presently closed.

HEYDON J:   Is this what happens?  The bins could be in any place you like, but the rubbish is brought to them from inside the shop?

MR WALKER:   Quite.  And the first of the judge’s expedients does not involve the location of those bins being altered for that purpose.

HAYNE J:   The opening being put on the public car park side?

MR WALKER:   That is right.

HAYNE J:   Where the council contractors would of course be the more careful to avoid leaving them in the way of the public than they were in the way of the delivery drivers perhaps, but that is a captious comment.

MR WALKER:   And, it I may say so, simply unexplored by any challenge, consideration, after the event, rationalisation, advanced on behalf of Woolworths.

HAYNE J:   Exactly so.  The list of matters you gave fastened upon knowledge by Woolworths of the fact of moving.

MR WALKER:   Yes.

HAYNE J:   You did not refer in that list to any knowledge of the reason the delivery people moved them.  Is it relevant?  Was there material about why drivers would set about this task, as, for example, was there evidence of commercial imperatives on drivers, self‑employed lorry owner drivers, who were working piecework in effect to get on and deliver, or is this again an area unexplored?

MR WALKER:   Yes, there is, but for me to adopt the language of “imperative”, it puts me in danger of rhetorical flourish.  Imperative is ‑ ‑ ‑

KIRBY J:   You would never be guilty of that, Mr Walker.

MR WALKER:   Quite so.  And “imperative” is too strong a word, but yes, commercial ‑ ‑ ‑

McHUGH J:   But did not Mr Shatte say, “Look, I don’t want to be here all bloody day.  I’ve got milk to unload”, or whatever it was.

MR WALKER:   That is right, exactly.  So yes, there is evidence.  We have collected it all and the findings in our written submissions.  The bins were moved, one, because they had to be physically.  They were in the way of the tailgate up against the delivery dock platform.  Two, because the delivery drivers, those that gave evidence about this, were not people whose only job was to deliver that day - it mattered not what hour - to Woolworths.  They had other jobs to do.  Three, because Woolworths had no system, buzzer, provoked or otherwise, for Woolworths to do it, when Woolworths noticed that as usual the bins had been left obstructing deliveries. 

Next, they did it because, yes, they had schedules to which they wished to keep, and the clear message from the evidence in particular of my client and her husband is that these were schedules which were really pretty demanding in the sense that try as you might, circumstances of traffic and exigencies that are readily imaginable at all the different delivery points meant that you could not be accurate about predicting when you would be at a particular place.  Now, that is important for another point to which I am going to come, about one of these fresh, here thereto unheralded factual contentions raised by the respondent in this Court, but I will come back to that in a moment.

It is the case that the plaintiff obtained and should be regarded as still enjoying the benefit of the findings we have collected in our written submissions as to the reasonableness of the response that she made in common with her burlier male equivalents, the other delivery drivers, namely to try and move them herself in order that there not be delay introduced into her busy round.  Now, that is not a finding which could now be the subject of ventilation by way of challenge in this Court and it does not appear to have been, in the terms that it was found by the trial judge, the subject of any successful challenge in the Court of Appeal.  Certainly, there is no contention on which goes to that.

Now, once it is established in that fashion that Woolworths knows about conduct by delivery drivers, including my client, which itself is held to be reasonable, that is to do it yourself rather than to ask Woolworths to do it, and one adds to that the repeated and adamant assertion by Woolworths that they understood the risk that that involved to someone of my client’s stature, we do move, in our submission, to the next part of the Shirt sequence, as it were, what was the reasonable response of a person in Woolworths’ position to that combination of knowledge and expectation as to what would continue if it were not stopped or modified.  Now, the first thing to be said, of course, is that ‑ ‑ ‑

McHUGH J:   This reference to response, is it sourced in Justice Deane’s judgment in Hackshaw v Shaw where I think he spoke about what was the ‑ ‑ ‑

MR WALKER:   Yes, I am sorry that I cannot respond to your Honour’s saying that it is sourced there but it certainly is in there.  I do not know whether that is the fons et origo.  There is no magic, in our respectful submission in the word “response”, but it conveys appropriately this aspect of things.  Knowing these matters, having these circumstances and, we add not immaterially, benefiting from the conduct of the plaintiff, as the judge held, if you can get the delivery drivers to move the bins it is a bit like getting the delivery drivers to do the sweeping, so much the less for your own employees to do.  Benefiting, knowing, expecting things to continue, one then says what does the law require as reasonable conduct on the part of the defendant as a response to the accepted, that is appreciated, risk.

Now, there is some criticism expressed in the written submissions against us in this Court as to our, probably unnecessary, characterisation of the Court of Appeal’s approach as partaking somewhat of the nature of an argument about voluntary assumption of risk.  But there is this to be said, that it would appear that Woolworths’ position has always been and still remains one that says it was obvious to you, from which the corollary is it was obvious to us, and therefore, as the Court of Appeal held, your entirely voluntary act in altering what Justice Williams described as the static, riskless position, was one which you brought about, you were the author of your own misfortune. 

In our submission, all of that leaves out of account what we know was the case at common law by reason of the facts, the knowledge, the circumstances, the expectations and the benefit in relation to Woolworths’ position before this very accident occurred, and one can say from very early in whatever history it was when these bins were first prone to be placed in this obstructing position.  The question arose as to whether anything should be done and if so what should be done, and then the balance of the factors, famously suggested as to some of them not in an exhaustive way by Justice Mason in Shirt.

There is another new and hitherto unheralded factual contention sought to be raised in the written submission in this Court which is clearly not open, and that has to do with a large and important part of the balance of factors in the Shirt formulation.  The trial judge found – I have already drawn to attention paragraphs [93] and [94] – that there was neither expense nor difficulty nor inconvenience to implement the two upon which our case depends.  As to the promulgation of a system of clear assumption of responsibility exclusively in Woolworths staff and the correlative prohibition on delivery drivers, it is just absurd to suggest that there could be any challenge to that conclusion by his Honour. 

As to the second, it has to be said that the forensic course makes this a somewhat unmeritorious plea in the written submission in the High Court by Woolworths.  Mr McDougall’s report in which the extent of the insertion of a gate, that is, swapping a gate from one wall to another, one fence to another, the re‑dimensioning of a concrete slab on the footpath, all of that was raised in his report which was tendered in opening.  Now, a better way of showing evidentiary contentions, cases which were between the parties who then fight issues that are truly raised, cannot be imagined, and as to matters peculiar to Woolworths, including its occupation of these premises, peculiarly within its knowledge and corporate understanding, one would expect in ordinary terms in relation to weighing of the evidence and drawing inferences from the capacity of the respective parties to bring forward evidence on certain issues, one is left with an entirely blank slate at trial and on the intermediate appeal about what is now sought to be raised, namely, that there is no proof that Woolworths would have been able to arrange to swap the gate over to the other side of the fence or to arrange for the necessary concreting or paving work to be done.  The short answer is that they had all the opportunity in the world at the trial to raise that point and they did not – nothing about it at all.

Can I come next to the comment concerning this notion that whilesoever the bins were left motionless, static, they did not present a risk.  The risk was created by the decision, as it were, of my client, presumably from time to time, not just on this occasion, to try to move it.  In our submission, assuming that this epithet “static” is intended to conjure back up the now superseded distinction between “static” and “dynamic” for various purposes of Indermaur v Dames or independent contractor position, one would say of it that in relation to bins on castor wheels, it is a highly odd way to characterise them.  They are by their nature designed to be moved and manipulated.  They are, of course, static when they are not in the immediate course of being moved or manipulated but they are not, as it were, a fixed part of the furniture or the premises to which, for example, the invited house painter simply must adjust.  They are something not only designed to be moved but expected by Woolworths to be moved from time to time by the range of delivery drivers, all shapes and sizes, that they wanted to come down to their loading dock.

In our submission, the notion that my client created a risk is one which is an entirely wrong analysis, commencing as it does at far too late a point in the narrative about the creation of and responsibility for the circumstances which caused her injury.

I told your Honours that there was another factual contention which really is too late to be raised in this Court and should be rejected on that ground.  Your Honours will have seen the written argument and to the effect that my client should be regarded as somebody who, in a foolhardy or reckless fashion, and then my word, apparently irrationally, that is, without cause, set about moving the bins because after all, so runs the argument, she did not stand to gain any time at all or, if there was any time saving it was trivial.  This is a theory which one does not find in the confrontation that fairness required between cross-examiner and plaintiff.  Again, I will stand to be corrected if there is something that our researches have not revealed, but it is certainly not shown in any of the written submissions.

There is a confrontation whereby the plaintiff is asked to respond to the proposition that she did not perceive any urgency on the part of Woolworths, but that of course goes nowhere to support the new suggestion that this was conduct undertaken by her for no apparent good reason because she must have understood or did understand that she was not thereby going to save any time. 

Now the first thing to be said is that the male delivery drivers certainly corroborated her and her husband in the proposition that they all believed, and the judge held reasonably, and the judge assessed my client and her husband as reliable, trustworthy, impressive witnesses, all those people thought that they were saving time and avoiding delay by moving the bins themselves.  It is possible that they all suffered from a mass delusion, but there was no attempt at trial nor on the intermediate appeal to reveal that.

The analysis in writing in this Court turns crucially on one circumstance.  The supposed fact that is a matter of pact between a husband and wife, the husband would invariably, that is, as a matter of necessity, be present for a critical part of the unloading operation.  Now, we have collected references that simply refute that.  They are in paragraph 14 of our reply submissions at page 3 which suffers from some typographical error and I wish to add some supplementary references.  In 14, could I ask your Honours to expand the references so as to embrace first the passage starting on page 105 as well as 106, 107 and also pages 158, 179 and through to page 210 from page 208.  The reference to page 200 at the end of paragraph 14 as printed is an error.  That should have read 210.

HEYDON J:   The end of paragraph 14 should say 210, at what?

MR WALKER:   I apologise for the wrong typographical convention.  It should read, 208, line 42, that is, continuing through to 210, line 15.  I regret to say that what appears typographically as paragraphs your Honours will have picked up in transcript is a reference to the handwritten five‑line reference down the left‑hand side.

There are also the findings at 402, paragraph [6] about line 17 and on page 421, point 5.  What they all amount to is this, and it is a finding, that the husband would try to be there to help but he could not always be.  So an essential premise to this notion that you could not save time by moving the bins yourself just falls away.  It is a theory latterly arrived at, not ventilated when it should have been in cross‑examination of the plaintiff and not raised until now.

In any event, Woolworths have the difficulty that they have no notice of contention to raise the objection that his Honour was wrong in the findings he made, all collected in our written submissions, to the effect that it was a reasonable response of the plaintiff by dint of her understanding of the pressures of possible delay, for her not to press the buzzer and perhaps wait for quarter of an hour but rather to attempt to move it herself.

If I could simply move in conclusion in relation to the position of Woolworths so far as it requires to be understood in relation to the argument against us based upon well‑known authorities referred to in the written submissions that as people in the position of independent contractors, indeed agents of an independent contractor, an independent contractor of an independent contractor, they were not within the scope or content of any duty of care owed to occupiers in such a way as to require Woolworths to have done any more than it did which may well amount to doing nothing.

That depends upon the proposition, using familiar terms, that Woolworths was not there to tell the Thompsons how to carry out their bread delivery, that Woolworths did not have as part of its corporate responsibility, let alone of its relation such as it was with the Thompsons, any power or authority of direction, for example, as to how heavy a load should be carried, how one’s back should be arched or not arched and what should be lifted or not above the level of one’s shoulders.

In other words, the classic distinction between the responsibility, for example, of an employer and safe system of work and an occupier in relation, for example, to the housepainter who, it may be safely and in a civilised society properly assumed by the householder, knows how to put up a ladder safely.  That is the contrast designed to be drawn in this part of the argument against us.  In our submission, there is no substance whatever in the application of those principles, well accepted and familiar as they are, to the facts of this case.

GLEESON CJ:   Is it part of your case that what is reasonably to be expected of an occupier by way of response to a risk might depend, amongst other things, upon the commercial or domestic context in which the risk exists.

MR WALKER:   Yes.  In particular, your Honour, that may cast important light on financial dimensions.

GLEESON CJ:   And on whether or not a person has any responsibility to remove a risk at all.

MR WALKER:   Yes.

GLEESON CJ:   I am just looking at Justice Mason’s judgment in Wyong v Shirt 146 CLR 47 and 48. You said earlier that what he says is not a comprehensive statement, and it is obviously not a comprehensive statement because a domestic householder may have on the land risky things.

MR WALKER:   We all have electricity on our premises.

GLEESON CJ:   Well exactly, and it is not just a question of the expense difficult and inconvenience of taking alleviating action; it is a question of whether anyone can reasonably require you to take any alleviating action at all.

MR WALKER:   Can I give this example with electricity.  It would not cost any of us any money worth counting to put up a placard defacing our walls next to every power point, “Electricians, observe your occupational training before sticking screwdrivers in here”.  There is no money involved.

GLEESON CJ:   I have ponds in my garden which no doubt constitute a risk to some kinds of entrant, and it would be very inexpensive to remove them, but I do not want to remove them.

MR WALKER:   No, quite.

GLEESON CJ:   And it would not be reasonable of anybody to require me to set out to have risk-free premises.

MR WALKER:   Your Honour, the word “reasonable” is not only one avowedly intended to capture the circumstantial nature of each factual determination but also involves value judgments, including matters of social, utility and amenity and personal liberties of a kind which are obviously not all captured and not intended to be captured by Justice Mason’s statement.

GLEESON CJ:   The commercial context of the present case may be important in deciding what it is reasonable to expect of Woolworths.

MR WALKER:   That is why in opening my address I referred to the interest, the essential commercial nature of the movement in and out of stuff, stuff for them to sell, and the detritus generated by the selling.  And, in our submission, that is how Woolworths make their money.  That is self‑evident.  It is necessary for their profits, their turnover, that it be efficient.  Their deliveries, in particular, of a commodity such as bread are obviously deliveries in which timeliness is important to them, not just to the delivery drivers with their crushing schedules, and, in our submission, the physical delivery of bread plus what I have called for obvious reasons the co‑ordination involved of all the different deliveries and the rubbish removal was something which was unequivocally in the commercial interest of and necessary for the business operations of Woolworths.

HAYNE J:   Does that not invert the way in which to look at it?  It focuses on the commercial pressures on Woolworths.  Rather, I would have thought the case that is sought to be made is that the occupier knew that those who were bound to and anxious to, in the sense of subject to strictures of time, complete deliveries to its premises, knowing that they shifted an obstruction to that task without assistance, did not take reasonable steps, so you say, to prevent or remove the obstruction, the fence point ‑ ‑ ‑

MR WALKER:   To ameliorate it perhaps.

HAYNE J:   ‑ ‑ ‑or to take reasonable steps to forbid its movement by the entrant.

MR WALKER:   Yes, your Honour, I am sorry if ‑ ‑ ‑

HAYNE J:   But the essential element in that is not that Woolworths wants its deliveries on time and it wants its bread on its shelves by five ‑ ‑ ‑

MR WALKER:   But it is difficult ‑ ‑ ‑

HAYNE J:    ‑ ‑ ‑ but it is that the delivery person – it knows that the delivery person needs to be out and that the delivery person will not sit in the laneway saying, “Well, tough, Woolworths aren’t going to get their bread.  Gee, that’s hard”. 

MR WALKER:   And certainly is not going to sit in a driveway and say not only tough to Woolworths but tough to other truck drivers.  Males are capable of shifting these things in a queue to be created.  I mean, according to the Court of Appeal, there was a pretty simple response by my client, she could just block the driveway while she waited the quarter hour.

GLEESON CJ:   The concept of voluntariness is ambiguous in a context like this.  Of course she did not have to move the bins in the sense that she was under a legal compulsion to move the bins, but she was under a commercial necessity to move the bins.

MR WALKER:   Yes, yes.  But the exigencies of the circumstances included her moving the bins as a matter of them being reasonably understood and to intrude into the analysis the notion of lawful direction binding in some master and servant fashion, or by some mythical contract between Woolworths and the delivery driver is, in our submission, to intrude an unrealistic element into an inquiry which, driven as it is at all these points by the canon of reasonableness, should not be so constrained.

Now the human dimension of what the Court of Appeal proposes namely, just stay in the queue, wait for the buzzer to work its magic and hope that Mr Bennett got out of the right side of bed that day, can be illustrated by my client’s husband’s evidence to which I do not need to take you.  It starts at 213 line 45, continues at page 214 to about line 15 or so.

HAYNE J:   But if all the deliverers were employees, if they were all employees of Woolworths ‑ ‑ ‑

MR WALKER:   Yes ‑ ‑ ‑

HAYNE J:    ‑ ‑ ‑ perhaps their reasonable response might have been to just sit in the truck and what takes this apart, so you say as I understand it, is that the deliverers were under their own pressures.

MR WALKER:   Yes, to the knowledge of Woolworths.

HAYNE J:   That I understand.

MR WALKER:   I have not mentioned it before, the evidence is completely, perhaps over‑completely canvassed in the exchange of written submissions about complaint.  There is difference factually, contended between the parties in this Court.  We rely upon both our written submissions in‑chief and in reply for these propositions.  The complaints unquestionably brought to the attention of Woolworths the annoyance or irritation, not only of the Thompsons but of others, but of the Thompsons will suffice, that there could be delay caused as well as a risk presented. 

They, indeed, rely upon the risk presented in order to make good their overall answer, look this was obvious it might hurt a little lady and she knew about it, see her prior note in the diary, see her husband’s complaints.  Therefore she is the author of her own misfortune for persisting in a course of conduct that we expected delivery drivers to carry out and we did nothing about, notwithstanding the repeated – see the evidence about my client’s husband, Mr Thompson, and Mr Dailey - attempt to raise a better way of handling this matter. 

KIRBY J:   Would you explain your reference in written submission 21 to the fact that your client made an entry in her diary a few months prior to the accident.  Was that a personal diary or a work diary or – why would that be admissible that she makes her own little statement to herself, unless it is to rebut a recent invention ‑ ‑ ‑

MR WALKER:   Well, it was admissible on the issue joined between the parties as to her own appreciation of the risk of physical injury by having to move heavy bins.  That is how it was used.  Now, in our submission ‑ ‑ ‑

KIRBY J:   It was received into evidence, was it?

MR WALKER:   Yes.

KIRBY J:   This was to rebut the suggestion that this was some recent invention, was it?

HEYDON J:   It is an admission.

MR WALKER:   It is an admission, it is tendered against her, used against her.  That is how it is now used, I should say, by the defendant. 

KIRBY J:   Why is it against her when she says, “It is too heavy for me to move”?

HEYDON J:   It shows contributory negligence.

KIRBY J:   I see, it is on ‑ ‑ ‑

MR WALKER:   That is, I think, its main purpose now, your Honour, yes.  Of course, I think the next thing ‑ ‑ ‑

KIRBY J:   It tends to support her in relation to her primary claim of ‑ ‑ ‑

MR WALKER:   It is against her, your Honour.

KIRBY J:   Well, it is for her in the sense that it is an indication that this was just too heavy a task to be given to many people, male and female, if they happened to be small.

MR WALKER:   Yes, I suppose that is right, and it also goes to the fact of frustration in attempts to have Woolworths ameliorate the position.  However, as Justice Heydon has pointed out, its present relevance is chiefly in that which it portends for a contributory negligence argument.  I will be coming to that almost directly. 

Your Honours, finally, on the question of obviousness, in our submission, there is no common law doctrine by which a duty found, a breach found – that is, negligence by a defendant – ceases to be actionable because the duty was to make better response to a risk equally appreciated by the plaintiff as by the defendant.  In some cases, that is a conclusion which may lead to there being either no duty, or the response requiring nothing whatever to be done. 

This Court has, in the multifariously different factual circumstances to which the general principles have to be applied, made decisions such as Woods v Multi-Sport – not only in warning cases, but in other cases as well – about whether or not a plaintiff’s appreciation of risk is a good answer at one or more of the stages of the tort analysis to the claim that the defendant is liable in negligence.  But there is no common law doctrine which makes that an absolute blanket ban on recovery. 

So much is obvious from the understanding before the contribution statutes, the apportionment statutes, were introduced into this country, the understanding – for example, see the disquisition in Alford v Magee – of how contributory negligence had worked.  The concept was that the injury had been brought about by two persons’ negligence; not by a circumstance which rendered one of them non‑negligent, but rather by two persons’ negligence.  The defendant’s negligence would not be actionable, but negligence it nonetheless was, and so the language appears in the statements of general principle that one finds, for example, in Alford v Magee. 

Now, the apportionment statutes, one of which applies in this case, the Queensland one, obviously contemplate that that is the position of common law doctrine, and correctly so, in our submission.  The wrong, that is, the negligence of the defendant, subsists, remains as a wrong.  A former defence is removed, that is, an argument which would render it non‑actionable is removed, but not by saying no duty and not by saying no failure to achieve a reasonable standard, rather, by an argument which, as pointed out in Alford v Magee, will always include elements of causation reasoning – an argument that says it is the plaintiff’s negligence which needs to be seen as preventing the defendant being rendered liable. 

Now that there is an apportionment statute, to come to my last matter which concerns contributory negligence, the issue that the respondent wishes to raise, in our submission, this is a case where, perhaps not quite in the way articulated by the trial judge but by reason of the very same circumstances to which he referred, in the circumstances that obtained which include that element of pressure of schedule, physical configuration and the responsibility of Woolworths in relation to the rubbish bins being moved, not being discharged by the kind of system in question, rendering it reasonable for an attempt to be made by the delivery driver herself, in all those circumstances, what she did in that second push that morning, that extra exertion, falls classically within the category of momentary inattention, inadvertence, misjudgement or miscalculation, not the standard required in order to constitute contributory negligence.

In paragraph [81], very carefully, his Honour points out that he is not using evidence from the employees of Woolworths, but rather making an inference from the whole of the case and the nature of things that there was, as he puts it:

a benefit for an employee of the defendant in that that employee did not have to do it –

and perhaps that is about at the most basic level of reasoning one can get, that it is not everybody who hunts up jobs to do at work and for many people not having to do a job is a benefit rather than a neutral factor.  So that, in our submission, the way we put it in‑chief concerning the convenience to turn a word against the respondent, to Woolworths of knowing that the delivery drivers would do this is manifest.

In relation to the uncertainty of Mr Bennett, your Honours will have seen the findings at 413, paragraph [27], particularly at about line 35 where the passage to which I have drawn attention is the subject of the basis of a specific finding by his Honour, Mr Bennett not being too sure whether “it was my job or not”.

Your Honours have heard in relation to what I will call “reasonableness of response” about the virtues of what was called by the respondent “the buzzer system” with the tendentiousness of suggesting that it was somehow designed to meet this risk.  The buzzer system, of course, was one that the respondent’s own arguments on other aspects of this case talked about as being available for these apparently universally capable male delivery drivers to do things which had nothing to do with a risk which Woolworths, for some reason, stoutly denies could possibly have existed for males as well.

Now, I do not have to run a case about risk to males.  If my learned friends assert that there was no risk to males, in our respectful submission, the Court does not need to go into the area, but one can at least, with respect, raise an eyebrow to the proposition that 350 kilogram mechanically manipulable bins being moved by males presents no risk of a kind which might start a sequence of reasoning along a Wyong v Shirt basis.  For present purposes, what is important is that there were complaints, and that is accepted by the other side.  What is not accepted is what that means as to the reasonableness of response.

The complaints are the subject of a finding not challenged and not challengeable, which one will find on pages 407 to 408 in paragraph [17].  This is the passage which was construed by my learned friend this afternoon in such a way in relation to line 42 on page 407 as to suggest there was some notion of one flesh of husband and wife, so that none of this had anything to do with knowledge by Woolworths about the wife being in difficulty moving these matters.  The first thing to be said, of course, is that they knew the wife was doing it manually:  see line 30 on page 407.

The second thing to note is that when one looks at the passage at line 12 on page 407, Mr Dailey, the assistant manager’s, response being somewhat dismissive:

Oh, don’t worry about it –

Mr Dailey being a person of whom the trial judge made the comment that he thought Mr Dailey could never really see the concern about these bins.  Then, having noted Mr Dailey apparently thinking it was a joke at line 15, saying:

Oh, I’ll speak to the boys about it.

But speaking in other words at least a professed willingness and ability to do something which in the grandiose expression of Mr McDougall was what might be called one of these procedures.  A realisation of being heavy as a result of the dialogue in this - too heavy – the dialogue from these complaints - see line 22 on page 407 - and a specific understanding that there was a concern that somebody would be hurt, line 30.  Between lines 30 and 35, a reference to Mr Dailey saying:

he would make sure the boys assisted his wife shifting the bins.

Again, it may have been insincere and it was certainly not made good, but it certainly shows the ease with which a procedure, so far as one can tell from uncontradicted material, could have been done.  Now, when I say uncontradicted, Mr Dailey was not very forthcoming in his recollection of everything that had passed between him and Mr Thompson as put to him, but the trial judge specifically makes the finding that Mr Dailey must have forgotten the conversations and finds that the conversations took place as Mr Thompson had sworn.

As to reasonableness of response, there is, in our submission, a very important element to be gained from noting what happens after repeated complaints - need to be repeated yet again because things have not been improved.  Now, on Woolworths’ view of the case in this Court, that probably helps their position, they say.  “Not only did you know there was a risk, you knew we weren’t doing anything about it, even though you’d asked us to”.  How much more easily on the Woolworths’ view of the case could it then be said, “You must be really careless for your own welfare because you told us about it, you knew about it, you knew we knew about it, you knew we had apparently insincerely or faithlessly said we would do something about it and we haven’t”. 

In our submission, that is plain perverse, and yet it is just a step in reasoning away from that position and the position that has been presented by Woolworths on the scope of this duty, that is, the reasonableness of the response, and on the question of contributory negligence.  The specific finding in relation to Mr Dailey, by means of which the credibility dispute between him and Mr Thompson was resolved, will be found in paragraph 64 on page 426.

Can I go back now to the answer which was given to these confrontations which were made, but not on the “no real saving of time” point, page 158.  What my client said when it was suggested to her that there was no particular urgency – as I say, a suggestion that rather conveys the position then of Woolworths that there was some delay which it just was not too bad to have to wait for – in the answer, she refers back to, that is, she is speaking in the context of, what she has already said about her perception of the length of time.  Attention has already been drawn to it this afternoon, line 15:

They took too long to respond . . . a good 10 minutes or more.

And – but surely, Mrs Thompson, even if you waited 10 minutes, you knew you that a store person would appear?---Yes. 

. . . 

And why is it you say you weren’t prepared to wait that, say, period for 10 minutes?---Well, there was – I had to get in and out as quickly as I could –

there is her perception, never a challenge to the fact that it was “wholly fallacious” –

because there were other trucks waiting to get in.  I needed my husband there to help me unload the truck –

That is the answer they rely upon to build their whole edifice of had to have the husband.  But that is one part of the evidence, which overall, the judge makes a finding on, sometimes he could not be there:

I had to get my truck down to the dock to be unloaded as quickly as possible.

Mrs Thompson, there was no urgency for you to have left the dock at any particular point in time . . . As I said, I had to work in with – Chris –

that is her husband, who had his other runs –

I tried to work in together –

tried, we stress –

so that he had to get away off to do – he had over a hundred Ks to do of a morning.  He tried to be down there to help me so we tried to work in together -

The word “tried” has been used three times.  This is not the word of the language of a necessity as perceived by her or surely, as available in the evidence for her husband to be there.

so that he could then leave and get away on his runs, and as I said, I had my other runs to do too -

the language of somebody subject to a perfectly honourable pressure, that is, to get on with schedules, whether they were contractual or otherwise, because she perceived that otherwise she would be delayed in doing so.  In our submission, there is simply nothing in the basic premise, which has been erected against us in this Court.

Finally, on contributory negligence, four, five, six times today, your Honours heard there was only one small woman.  Now, in our submission, the extraordinary fallacy behind that as apparently a relevant matter in this argument is that, on the question on duty, it was somehow reasonable for a known small woman to be injured, that is, Woolworths’ response could take account of it would be just one small woman.  Bearing in mind that the duty is owed to individuals and though it needs to be considered, hypothesising individuals rather than necessarily knowing about them, and also bearing in mind that they did know about this individual, in our submission, that is an argument which would be rejected out of hand in relation to duty, that is defendant’s duty.

Then we come to its use in contributory negligence.  The notion here is that “Knowing you are only a small woman, you should not have done anything at all in relation to these bins which Woolworths knew would obstruct the delivery work which had to be done” - and one comes back to the fact that there was only woman, says my friend – “bearing in mind that nobody else had this problem”.  Now, in our submission, that is a form of discrimination of an illegitimate kind which even in the not quite so pure area of tort jurisprudence really ought not to be allowed to intrude.  I do not mean to say simply and bluntly that the defendant takes the plaintiff as it finds her but, in our submission, this is a case where the circumstances, the proven facts and knowledge of Woolworths make it, in our submission, untenable to suggest that in the balance of reasonableness of apportionment of responsibility between Woolworths and the plaintiff, she starts behind square one because she was only a small woman. 

The fact that she knew these were, to use her words, “too heavy” has to be understood as an ordinary use of language.  They were not too heavy in the sense of being heavier than the maximum she could push because that had already been her successful accomplishment 20 or 30 times before.  It means very heavy, presenting a risk.  Then we come to what is really the linchpin of what the other side puts against us in relation to contributory negligence, both as to it being something of which my client was guilty and also as to the respective apportionment between the parties, and that is that she knew the risk and nonetheless took it.  The risk, to remind your Honours is that she would injure herself by trying too hard to push something too heavy, and too hard and too heavy, of course, are matters of which no exact calibration could be made, as her own previous experience had made clear. 

Knowing of the risk or knowledge of a risk is obviously relevant to a contributory negligence inquiry.  After all, if a plaintiff does not know of a risk, then it would absurd to suggest that a failure to take precautions or to exercise prudence would be contributory negligence.  Thus it is certainly appropriate for the plaintiff’s knowledge of the risk to be considered in relation to contributory negligence.  But can acting with knowledge in itself suffice, either in all cases or in this case, that is, either as a general rule or something which emerges for consideration of the evidence in this case, to show that she must have been contributorily negligent?

It is there that one goes back to the law in this Court which contemplates that, not surprisingly, for the human beings who are plaintiffs injured by a defendant’s negligence, there will not always emerge in the evidence perfect conduct from the point of view of self‑protective prudence.  This Court has a collection of labels for conduct which may fall short of that which was necessary in order to preserve safety, and your Honours are familiar with all of them – momentary inattention, excessive familiarity, inadvertence, misjudgment, miscalculation.  That is a category of conduct.  Every single one I have used describes conduct which falls short of something in terms of adequacy to protect, and they are by definition, in all the authorities which establish them, not contributory negligence, not a failure to take reasonable care for your safety. 

In our submission, bearing in mind the circumstances that continued to obtain between Woolworths – recalcitrant in the face of complaint, able very readily to remedy the matter – and this delivery driver in terms of putting content to the test, reasonable care for her own safety, your Honours would, as to the contributory negligence argument, simply find that there was no contributory negligence.  This was a misjudgment or ‑ ‑ ‑

GLEESON CJ:   Is it your primary submission that the system at Woolworths should have been or should have included arranging for the storemen to clear the driveway?

MR WALKER:   Yes.

GLEESON CJ:   By moving the bins themselves.

MR WALKER:    Yes, that is right.

GLEESON CJ:   Consistently with that then, it must have been safe for most people to move the bins.

MR WALKER:   Well, that would be an industrial question for Woolworths.  It depends whether we are talking about someone working on their own or not or somebody having mechanical assistance or not.  No, I am certainly not putting that it follows from the way in which we particularise matters that it is a one-man job.  We do not say that either.  We say it is the responsibility of Woolworths.  “Woolworths employees would do it; you are not to do it”.  That is what we say the procedural control should have been.

KIRBY J:   Is there any evidence about a mechanical device that could – like a tip-up truck?

MR WALKER:   There is evidence in Mr McDougall’s report but not of a kind that enables me to be anywhere near specific about something of that kind.  We did not run a case that there should have been a mechanical device for her.  There is reference to that in Mr McDougall’s report, and we certainly of course did not run a shadow case of the storeman against Woolworths.  May it please your Honours.

GLEESON CJ:   We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow morning in Sydney and 10.30 tomorrow morning in Canberra.

AT 4.02 PM THE MATTER WAS ADJOURNED