Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139
• Hearing dates: On the papers
• Decision date: 07 May 2014
• Before: McColl JA at [1]; Basten JA at [75]; Emmett JA at [128]

Decision

(1) Allow the appeal in part and set aside order (1) made by the District Court on 13 September 2012.

(2) In place thereof, give judgment for the plaintiff against the first defendant in the amount of $717,970, such judgment to date from 13 September 2012.

(3) Make no order as to the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORT - negligence - contributory negligence -- general principles - duties of an occupier to ensure safety of premises for an entrant - whether culpability greater when controlling potentially dangerous vehicle - standard of care under the Civil Liability Act - apportionment under Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1)(b); Motor Accidents Compensation Act 1999 (NSW), s 138; Civil Liability Act 2002 (NSW), ss 5B, 5R.; TORT - negligence - contributory negligence - pedestrian injured in motor vehicle accident - apportionment of liability - respondent injured by a forklift on appellant's premises - failure by respondent to keep a proper lookout - relative culpability of the parties; WORDS and PHRASES - "common law"
• Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5F, 5R, s 5S; Divs 4, 8, Pt 1A; Law Reform (Miscellaneous Provisions) Act 1965 (NSW), ss 9, 10; Motor Accidents Act 1988 (NSW), ss 72, 74; Motor Accidents Compensation Act 1999 (NSW), s 138
• Cases Cited: Ackland v Commonwealth of Australia [2007] NSWCA 250; ACQ Pty Ltd v Cook [2008] NSWCA 161; 72 NSWLR 318; Alford v Magee [1952] HCA 3; 85 CLR 437; Anikin v Sierra [2004] HCA 64; 79 ALJR 452; Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50; 304 ALR 1; Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1; Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479; Boral Bricks v Cosmidis [2013] NSWCA 443; Carey v Lake Macquarie City Council [2007] NSWCA 4; Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152; Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; Aust Torts Reps ¶81-815; Cook v Cook [1986] HCA 73; 162 CLR 376; Council of the City of Greater Taree v Wells [2010] NSWCA 147; 174 LGERA 208; Evers v Bennett (1982) 31 SASR 228; Frost v Kourouche [2014] NSWCA 39; Glasgow Corporation v Muir [1943] AC 448; Imbree v McNeilly [2008] HCA 40; 236 CLR 510; Joslyn v Berryman [2003] HCA 34; 214 CLR 552; Mackenzie v the Nominal Defendant [2005] NSWCA 180; Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464; Monie v Commonwealth of Australia [2007] NSWCA 230; Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; 279 FLR 202; Nicholson v Nicholson (1994) 35 NSWLR 308; Nominal Defendant v Mackenzie [2005] HCATrans 844; Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380; Nominal Defendant v Rooskov [2012] NSWCA 43; 60 MVR 350; Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407; Pennington v Norris [1956] HCA 26; 96 CLR 10; Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; 172 IR 453; Smith v Zhang [2012] NSWCA 142; 60 MVR 525; Sons of Gwalia Ltd v Margaretic [2007] HCA 1; 231 CLR 160; Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; Aust Torts Reps ¶82-043; Taheer v Australian Associated Motor Insurers Ltd (trading as AAMI) [2010] NSWCA 191; Talbot-Butt v Holloway (1990) 12 MVR 70; Thompson v Woolworths [2005] HCA 19; 221 CLR 234; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; Walker Corporation v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259; Watt v Bretag (1982) 56 ALJR 760; Waverley Council v Ferreira [2005] NSWCA 418; Aust Torts Reps ¶81-818; Wynbergen v Hoyts Corp Pty Ltd [1997] HCA 52; 72 ALJR 65
• Texts Cited: Review of the Law of Negligence (September 2002, "The Ipp Report"); D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed, 2013), p 247
• Category: Principal judgment
• Parties: Boral Bricks Pty Ltd (Appellant); Orestis Cosmidis (Respondent in 2012/3300879)
• Representation: Mr M T McCulloch SC/Mr N J Polin (Appellant); Mr J Guihot (Respondent); Davidson Legal (Appellant); Frisina Lawyers (Respondent)
• File Number(s): CA 2012/300879

Decision under appeal

• Jurisdiction: 9101
• Citation: Cosmidis v Boral Bricks Pty Ltd [2012] NSWDC 144
• Date of Decision: 2012-09-13 00:00:00
• Before: Levy DCJ
• File Number(s): DC 2011/80368

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 18 April 2008, Mr Orestis Cosmidis (the respondent) was delivering a tanker load of fuel to premises occupied by Boral Bricks Pty Ltd (the appellant). When walking back to his truck, he was hit from behind by a forklift, suffering major injuries. The respondent was aware that forklifts operated in the area.

The appellant was found liable in negligence but the respondent was found not to be contributorily negligent for failing to keep a proper lookout. The appellant accepted liability but challenged on appeal the finding that there was no contributory negligence (and certain heads of damage).

On 18 December 2013, the Court of Appeal set aside the finding that there was no contributory negligence and directed that the parties have an opportunity to make submissions on the issue of contributory negligence for further hearing by the Court: Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443.

The Court (by majority) held: contributory negligence assessed at 30%; (McColl JA would have assessed contributory negligence at 10%).

(per Basten JA, Emmett JA agreeing)

1. Section 5R of the Civil Liability Act reflects the policy that people are to take responsibility for their own lives and safety. That the likely seriousness of harm caused by the driver's conduct is greater than the pedestrian's does not diminish the responsibility of either for the accident. If each were equally careless, liability should be shared equally. The approach taken in earlier authorities that the culpability of a person controlling a potentially dangerous heavy vehicle is necessarily greater no longer applies: [99]-[100]

Alford v Magee [1952] HCA 3; 85 CLR 437; Pennington v Norris [1956] HCA 26; 96 CLR 10; Watt v Bretag (1982) 56 ALJR 760; Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; Joslyn v Berryman [2003] HCA 34; 214 CLR 510; considered.

Cook v Cook [1986] HCA 73; 162 CLR 376; Imbree v McNeilly [2008] HCA 40; 236 CLR 510; Council of the City of Greater Taree v Wells [2010] NSWCA 147; 174 LGERA 208; Frost v Kourouche [2014] NSWCA 39 referred to.

Talbot-Butt v Holloway (1990) 12 MVR 70 distinguished.

2. The appellant's share of responsibility for the accident derives from its duty as an occupier to ensure the safety of the premises and the failure of the driver of the forklift to keep a proper lookout; the respondent's share from a failure to look in all directions when walking into an area where he knew forklifts operated: [114]-[115]

(per McColl JA dissenting)

3. Section 5R of the Civil Liability Act 2002 (NSW) says nothing about how the relative culpabilities of the plaintiff and defendant are to be determined. The applicable test for apportionment is the "just and equitable" test as found in s 138(3) of the Motor Accidents Compensation Act 1999 (NSW). Just and equitable apportionment requires a comparison of the culpability of the parties and the importance of their acts in causing the damage: [48]-[52]

Pennington v Norris [1956] HCA 26; 96 CLR 10; Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; Wynbergen v Hoyts Corp Pty Ltd [1997] HCA 52; 72 ALJR 65 applied.

Joslyn v Berryman [2003] HCA 34; 214 CLR 510; Nominal Defendant v Rooskov [2012] NSWCA 43; 60 MVR 350 considered.

4. It is necessary to consider an occupier's duty to ensure the safety of an entrant on its premises and the relative danger posed by the conduct of a driver of a vehicle compared to a pedestrian: [60]-[64]

Pennington v Norris [1956] HCA 26; 96 CLR 10; Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479; Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; 221 CLR 234; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330; Smith v Zhang [2012] NSWCA 142; 60 MVR 525 applied.

Judgment

1 McCOLL JA: In Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 ("Boral Bricks 1") the Court (Basten JA (McColl and Emmett JA agreeing)) held that the primary judge's assessment of the contributory negligence issue miscarried and, accordingly, his Honour's finding that there was no contributory negligence must be set aside. The Court also gave the parties the opportunity either to submit that the issue of contributory negligence should be remitted to the District Court or to supplement its or his written submissions concerning contributory negligence with a view to that issue being determined by this Court. The parties have pursued the latter course. Their primary submissions on the issue were, as directed, furnished by the same date. Accordingly each exercised its and his right of reply to the other's primary submissions.

2 These reasons should be read as incorporating the findings made in Boral Bricks 1 which will be repeated to the extent necessary, as will uncontroversial findings from the primary judgment: Cosmidis v Boral Bricks Pty Ltd [2012] NSWDC 144.

3 The respondent, Orestis Cosmidis, was injured on 18 April 2008 when he was struck from behind by a forklift truck driven by Daniel Mohr. Boral Bricks Pty Ltd, the appellant, employed Mr Mohr. The accident occurred on its premises. The respondent had just delivered a load of fuel to the premises and was walking back to his truck from an office when the accident occurred.

4 The appellant's premises comprised "a very large site" which did not include any dedicated pathways, roads or tracks for the exclusive use of forklifts: primary judgment (at [28]). The primary judge relevantly found (at [36] - [47]):

"36. During the time the plaintiff was on the site on the afternoon of the accident he had seen the forklift in question travelling around the site on a total of three occasions, whilst laden with bricks in its carrying compartment and also whilst unladen. He had the impression that on at least one of those occasions the forklift was being driven erratically at speed, and had turned a corner with a tilt because of the speed at which it had been driven.

37. The plaintiff knew that the forklift was being used to transport bricks for stacking on the site. When the forklift was laden with bricks, the bottom bar of its carrying tray or cage was about 150mm from the ground. When it was unladen, the bottom bar of the carrying arms or grabs were located in a much higher position up the mast, and over a metre above the ground.

38. After completing the transfer of fuel and dealing with the resultant paperwork at the site office, the plaintiff left the office, after being there for about 30 seconds. He then left the office via the door through which he had earlier entered ... He was guided in his path of exit by a series of 3 red safety cones and safety tape which indicated by their placement, that he should not enter upon the road directly.

39. At that time, the pumping equipment on the plaintiff's truck was making a noise as it was in high idle mode. He was wearing safety boots, long cotton pants, a long sleeved fluorescent yellow coloured safety shirt (Exhibit 'D'), safety glasses, earplugs and a cap. The plaintiff wore ear plugs not only because of the loud noise associated with the pumping equipment on his truck, but also because of noise near the workshop and office where machinery or conveyors were being operated.

...

41. The plaintiff ... said he had taken some three or four casual steps forward, after passing the third safety cone, and as he did so, he was hit from behind by the forklift truck which was travelling in the same direction of travel as he had been walking.

...

45. Exhibit "2" shows a view of the exit path from the office where the plaintiff walked out and turned to his left. Above the door is an elevated sign stating 'Forklifts in use' ...

46. ... The roadway in question was some 8 or 10 metres in width. The roadway covered a distance of about 4 to 6 metres in the plaintiff's general direction of travel. There was no marked walking path reserved for pedestrians beyond the position of the last of those safety cones.

47. The forklift approached the plaintiff from behind and the plaintiff had no notice of its approach ... "

5 The respondent conceded he probably saw the "Forklifts in use" sign as he left the office: primary judgment (at [135]).

6 The appellant's system of work required entrants to its premises to sign a Visitor's Pass, on which the statement "10. Forklifts have right of way" appeared. The respondent gave evidence that he never read what was written on the Visitor's Pass and assumed it was a form of identification. The appellant relied upon the warning in the Visitor's Pass in its defence: primary judgment (at [25] - [27]).

7 Although the driver of the forklift, Mr Mohr, did not give evidence, it is apparent from his statement to the Police (Exhibit "E") that immediately before the accident, he had driven past the door from which the respondent had emerged and travelled approximately 10 to 15 metres further when he heard a scream, stopped the forklift and saw the yellow sleeve of the respondent's shirt "on the bottom of the grabs": primary judgment (at [50]). The primary judge inferred (and the appellant did not dispute on appeal) that Mr Mohr had not seen the respondent before the impact or before hearing his screams: primary judgment (at [51]).

8 The appellant relied upon a defence of obvious risk pursuant to s 5F, Div 4, Part 1A of the Civil Liability Act 2002 (NSW) (the "CLA"). The primary judge found (at [4]) that the accident occurred in circumstances which fell within the definition of "motor accident" for the purposes of the Motor Accidents Compensation Act 1999 (NSW) and concluded by reference to s 3B(1)(e) of the CLA, that the latter did not apply. That was not correct: see s 3B(2)(a), CLA. Nevertheless against the possibility that he was wrong in this conclusion, the primary judge dealt with the obvious risk defence and made the following relevant findings.

9 First, his Honour was not persuaded that prior to the accident the respondent was relevantly aware of the risk of being struck from behind by the forklift: primary judgment (at [123]). His Honour found (at [125]) that the risk was not obvious to the respondent "because he had no notice of the approach of the forklift truck". Secondly, he rejected the appellant's submission that the respondent was on notice of the risk of forklift travel on the site by virtue of the Visitor's Pass (on the assumption the respondent signed one to gain entry to the site, on the day of the accident) because he concluded that the contents of that document were not drawn to the respondent's attention: primary judgment (at [127] - [132]).

Boral Bricks 1

10 The following passages from Boral Bricks 1 are relevant to consideration of the contributory negligence issue. In order to understand the description of the incident set out in the primary judgment (at [35] - [48]) Basten JA analysed photographs taken on the afternoon of the accident and reached the following conclusions:

"18. ... [I]t is probable on the basis of the evidence given of the plaintiff who had watched the forklift operating while he was delivering fuel, that the forklift in fact came down the right hand open area shown in photograph 2, between the stack of bricks immediately opposite the door and the edge of the covered area. The forklift then turned to its right, across the front of the doorway, travelled the length of the building parallel to the plaintiff's walkway and commenced to turn left at the end of the building, as indicated by the angle at which it came to rest.

19. Photograph 13 provides a view of the forklift from the front. The yellow metal vertical tines, with a bar across the bottom, were used to hold several pallets of bricks. At the time of the accident, the forklift was returning, unladen, to collect further pallets. The plaintiff was struck in the back by the yellow bars, presumably towards the left hand side, as indicated by the X on the lower 'grab bar' marked on photograph 10."

11 In considering, albeit concluding it was unnecessary finally to decide, the issue whether the driver saw the respondent before he hit him, Basten JA said:

"24. Mr Mohr stated that he had been travelling at approximately 10km/h ... [He] said that he had gone approximately 10-15 metres past the door to the workshop when he heard the scream.

25. At that speed, the forklift would have covered approximately three metres per second. It would therefore have taken 3 - 4 seconds to cover the distance from the doorway out of which the plaintiff came until the point of impact. It is likely that the plaintiff would have been in view before the forklift passed the doorway. However, as demonstrated by photograph 6, taken from inside the forklift looking in the direction of travel, the driver's vision was somewhat restricted. In any event, there is no issue as to the negligence of the driver for the purposes of the appeal and the question of when he first saw the plaintiff (if he did) need not be pursued further." (Emphasis added)

12 The appellant's case at trial on contributory negligence was run on the basis that the respondent failed to keep a proper lookout based on what he saw or should have seen. Basten JA addressed (at [26] ff) the issue as to the respondent's position at various points and why, as he asserted, he did not see the forklift before it hit him. That issue arose in the context of the primary judge's unchallenged acceptance (primary judgment (at [43])) of the respondent's evidence that he did not hear the forklift because he was wearing earplugs (at his employer's direction), and, too, that the noise of the pumping equipment on his truck in "high idle mode" would have made it unlikely in any event that he would have heard the engine of the forklift. Basten JA said:

"27. At the point at which he came out of the office doorway, he said that he looked both to right and left, but did not see the forklift which he had earlier noticed operating in the area. With the assistance of the photographs, the plaintiff gave extensive evidence as to the three occasions on which, whilst unloading his fuel, he saw the forklift operating: Tcpt, 23/04/12, pp 30-38. On the first (and third) occasions, the forklift, carrying a load of bricks, came from the area into which it appears to have been travelling at the time that it hit him. Thus, viewed from his position at the fuel depot, whilst facing the doorway of the office, the forklift when laden came from his right; the driver then turned the forklift to its right so as to travel towards the doorway. When it passed the doorway, it made a left hand turn between two stacks of bricks, which the plaintiff indicated by marking an X on photograph 9: Tcpt, p 33. Because the forklift undoubtedly came past the office doorway and hit the plaintiff from behind, there were, as it appeared from the photographs, only two courses the driver could have taken. One was to come out from the pavement to the right of the large stack of pallets visible when looking out from the doorway (see photograph 2), or from the covered area further to the right looking out from the doorway (as shown in photograph 9). As will be seen shortly, Mr Johnston estimated a time lapse of 10 seconds from when the plaintiff came out of the doorway until the point of impact. However, even without that evidence, a similar calculation could readily be made, using the speed at which Mr Mohr estimated he was travelling. It is difficult to see how the forklift could not have been within the visual field of the plaintiff, had he indeed looked to the right (as he said he did) when he came out of the door. He did not need to be warned to lookout for forklifts: he knew there was a large forklift operating in the area and had observed its operations during the half hour he had been unloading fuel.

28. These considerations were directly relevant to any assessment of contributory negligence on the part of the plaintiff. They were not addressed by the trial judge.

29. There was a further implausibility about the findings made. As appears from the photographs, the line of three safety cones ended well before the corner of the building along the side of which the plaintiff was walking. The plaintiff said that he was hit after taking some three or four steps past the third cone and without stepping to the right of the line of the cones.

30. That description is implausible for a number of reasons. First, it would place the left hand extremity of the cage in front of the forklift within a metre of the oxyacetylene cylinders beside which the plaintiff was walking. It would also mean that the forklift would have come close to knocking over the safety cones. Each of those propositions is highly implausible. Further, it is clear from the position of the forklift (as shown, for example, in photograph 1), first, that the point of impact must have been well beyond the area of the safety cones and, secondly, that the course taken by the forklift, before it started to turn to its left, must have placed it (as might be expected) in the middle of the paved area along which it was travelling. Again, these difficulties were not addressed by the trial judge.

31. It is clear that, in order to return to his truck, the plaintiff was required to walk down the line of the building (no doubt inside the safety tape for as far as it extended) and then cross over the paved area in the direction of the fuel depot. It seems likely that he had already commenced to make that crossing when he was struck, given the angle of the forklift, which had already started to turn to the left to round the corner of the building. Accordingly, at that point the plaintiff must have been in an open area in which he knew a large forklift was operating. Assuming (in his favour) that he could not expect to hear the forklift approaching, taking reasonable care for his safety would have required that he look both behind him and to his left before crossing the open area. Had he done so, he would inevitably have seen the forklift approaching and could have stepped out of the way. Again, this consideration was not addressed by the trial judge." (Emphasis added)

13 The appellant sought to tender at trial a report prepared by a consulting engineer, Mr Johnston, which it asserted demonstrated its system of work was sufficient to discharge its duty of care, demonstrated the accident could not have occurred as the respondent contended and established the latter's contributory negligence. The primary judge rejected the tender, a ruling which this Court found to be erroneous: Boral Bricks 1 (at [33] - 47]).

14 Basten JA analysed Mr Johnston's report as follows:

"35. Section 4 described the forklift, the author noting that neither the actual forklift nor one of the same model was operating at the site at the time of his inspection. He stated at paragraph 4.4 that he had conducted a 'speed assessment' on an available forklift. Section 5 was described as 'incident analysis'. It provided calculations of the time it would have taken the plaintiff to walk from the doorway to the point of impact and the distance the forklift would have covered in the same time. As will be seen from figure 5.1 (set out in the appendix) Mr Johnston estimated that the plaintiff would have taken 10 seconds to walk from the doorway to the point of impact at the corner of the building. He assumed in that figure that the forklift which hit the plaintiff was coming out from under the covered area, indicating by his diagram that it would have been at the edge of the covered area at the time the plaintiff came out of the doorway. As has been noted above, the description given by the plaintiff indicated that on its prior trips, the forklift had not entered the covered area, but had turned into or out of the open area between the covered walkway and the line of pallets immediate across from the doorway. Figure 5.1 does not describe such a route, but it may readily be inferred that, in order to reach the point of impact at the time that the plaintiff reached that point, the forklift would probably already have been moving in the general direction of the doorway down the open area. In combination with photograph 2 taken on the day of the accident, it is highly implausible that, had he looked in the direction from which he might have expected the forklift to be coming, he would not have seen it (as Mr Johnston said in a passage set out below).

36. Mr Johnston also considered whether there may have been difficulties for the driver to see a pedestrian. At paragraphs 5.18-5.20, he considered the visibility of a pedestrian, both in high contrast yellow or wearing more subdued colouring. (The trial judge accepted that the plaintiff was wearing a high visibility safety vest.)

37. Section 7 provided the response to specific questions. These were largely statements of inferences which could be readily be drawn from the descriptive material in the incident analysis. However, relevantly for present purposes, it is convenient to set out question 6 and the answer:

'6. If you apply the Worker's version of events and the Forklift came from between brick stacks directly in front of the workshop door, where would that place the forklift at the time the Worker came out of the workshop, having regard to where the Worker was eventually struck?

Immediately in front of the pedestrian probably no more than about 15 metres away.'" (Emphasis added)

15 For the purposes of considering the contributory negligence issue, it is relevant to set out Mr Johnston's [5.18] and [5.20] as follows:

"5.18. In my opinion the driver should have been able to spot a pedestrian wearing high visibility clothing at some stage during the ten second interval noting that the hardware on the front of the forklift and the a-pillar will have blocked the view of at least some or all of the pedestrian for most but not all of the 10 second interval. The pedestrian will pass across different sight obstructions as the forklift approaches the pedestrian from behind and to the left side of the forklift. The operator was generally looking towards a busy background with the side of the building and what appears to be a series of brick bunkers containing neutral coloured gas cylinders as shown in Figure 5.4. In my opinion a high contrast yellow or orange shirt should stand out sufficiently against the background such that even if only a small part of the shirt is seen it should be identifiable as a probable person.

...

5.20. Therefore although the forklift had right of way based on the operating conditions at the site the operator was still responsible for keeping a lookout and avoiding objects and persons with whom he might collide. In my opinion he probably had an obligation to identify the pedestrian if he was walking along the roadway for about 10 seconds prior to impact and should have done so even given the restricted vision from the cabin of the forklift if the pedestrian was wearing appropriate high visibility clothing, noting that the whole shape of the pedestrian would probably never be available simply a portion of the pedestrian would be seen between objects on the forklift. In those circumstances he should have been able to avoid impacting with the pedestrian. (Emphasis added)

16 In Section 7 of his report Mr Johnston's opinion as to the likely scenario to explain the collision was, relevantly:

"The worker has exited from the doorway and turned and walked towards the fuel depot where his truck was parked. He has failed to check for approaching forklifts as he exited the doorway and anytime leading up to the collision. The forklift has approached him from behind and the left end of the grab bar has struck the pedestrian in the back knocking him to the ground. The operator of the forklift has never identified the presence of the pedestrian due to the sight obstruction caused by the forklift hardware in front of the operator significantly restricting forward visibility ... "

Contributory negligence submissions

17 In further submissions on the contributory negligence issue filed pursuant to the leave granted in Boral Bricks 1, both parties relied on their original submissions on appeal on this issue as well as adopting passages of Basten JA's reasons for reaching this conclusion. It is unnecessary to identify the passages each adopted as the emphasis they placed on them will be apparent when their submissions are recounted.

18 The following encapsulates both the parties' written submissions prior to Boral Bricks 1 and those made pursuant to the leave granted in that judgment.

Appellant's submissions

19 The appellant submitted that the issue of contributory negligence was to be determined in accordance with s 5R of the CLA as explained in Council of the City of Greater Taree v Wells [2010] NSWCA 147 (at [81] - [83]). The respondent did not demur.

20 The appellant's essential submission was that the respondent's conduct indicated a significant departure by him from the standard of care to be expected of a reasonable person in the circumstances, and, in particular, a far greater degree of culpability when compared with Mr Mohr's breach. It submitted that the only negligence that could be attributed to it for the purposes of contributory negligence was its vicarious liability for Mr Mohr's failure to see the respondent in time to avoid him even though he was driving at a reasonable speed.

21 The appellant relied upon the following matters to make good these propositions.

22 In its written submissions in the principal appeal prior to delivery of Boral Bricks 1, the appellant pointed to what it contended was evidence consistent with contributory negligence on the respondent's part in failing to keep a proper lookout both at the point when he emerged from the office and when he walked past the third cone, wearing earplugs and failing to observe the two warnings about the use of forklifts on the site. This evidence included the facts that the respondent had commenced delivery of fuel to the site two years earlier and he thereafter attended the site approximately every month or two, that he acknowledged that he may have read some of the matters contained in the Visitor's Pass, that he was aware that there were forklifts operating on the site and that he had to keep a lookout for them, that he had seen the sign warning of the presence of forklifts and had walked out the door where the sign was situated on many occasions before, that he recognised that the witches' hats and tape created a path for him to follow, that while he was filling the fuel tank from his truck he saw a forklift operating in the general area where the accident occurred on at least three occasions, that he was aware from the observations that he had made of a forklift going fast or driving erratically that he could see the forklift, but could not actually hear it and, finally, that it was apparent from the contemporaneous photographs that there was good vision for the respondent such that he would have seen the forklift if he had looked for it. The appellant further contended, on the basis of the respondent's evidence that when he got to the third cone he made no attempt to look for a forklift, that he had failed to keep a proper lookout at that point too.

23 The appellant contended by reference to the photographs taken on the day of the accident and the measurements in Mr Johnston's report, that the forklift was clearly visible and was no more than 15 metres away from the respondent as he left the office, such that he could not have failed to see it as it came between the stacks of bricks directly in front of the office door. It argued that in order for the respondent to have been struck where he was, he must have walked out in front of the forklift, which he should earlier have observed approaching him between the stack of bricks, following the path he had seen it follow earlier that day, albeit in the opposite direction. This was in circumstances where, by choosing to wear earplugs, the respondent was left to rely solely upon his visual observations to ensure his safety. The circumstances were also such that he was, or a reasonable person in his position should have been, aware that the site was purpose built for the storage and movement of pallets by large forklifts, whose drivers might have obstructed views.

24 Further, the appellant submitted (relying in part upon Basten JA's observations in Boral Bricks 1 (at [18])), that the respondent should have recollected his previous observations concerning the movement of the forklift which ultimately struck him and its likely path, being information he should have used to determine what precautions he should have taken as he left the path parallel with the witches hats before venturing out onto the open roadway.

25 Thus, the appellant contended, it was not open to the respondent to treat the site as if it was a normal pedestrian thoroughfare such as he might have encountered on a footpath adjacent to a public road. It criticised the respondent's evidence at trial to the effect that when he walked down a street he did not "turn around to see if there is a car coming behind me" as manifesting a significant degree of departure from the standard of care to be expected of a reasonable person in his position. It emphasised that the circumstances of the work site were such as to call for a greater degree of care than might be expected of a pedestrian on a public street. It contended the respondent's conduct was to be likened to a pedestrian wearing headphones who decided to cross a road in the path of oncoming traffic without looking to either side.

Respondent's submissions

26 The respondent submitted that the proper consideration of the contributory negligence issue, and the relative apportionment of responsibility as between the appellant and himself, involved more than a comparative analysis of the reasonableness of his behaviour and that of the driver of the forklift, and also required the Court to take into account the appellant's breach of its duty as occupier to take care for the safety of a lawful entrant upon its premises. His essential submission was that the appellant's negligence was properly characterised as of a major systemic nature which, taken into account with Mr Mohr's negligence greatly outweighed his momentary or casual failure to take care for his own safety.

27 The respondent accepted, as found in Boral Bricks 1, that if he had looked he would have seen the approaching forklift in sufficient time to move out of its path. However he argued that his failure to look back and see the forklift should be considered to have been a momentary and casual want of care. He also contended that his obligation to look back in order to keep an eye on what might be approaching from behind him was not his only obligation in terms of keeping a proper lookout as he was also aware of forklift trucks having emerged previously from around the corner of the building ahead of him such that he had to keep that corner under observation as well. He submitted that there was no basis for a finding that he in fact looked and saw the forklift, but decided to continue walking regardless.

28 Next the respondent adopted Basten JA's inference that Mr Mohr had not seen the respondent before the accident (Boral Bricks 1 (at [23])), an inference he contended was supported by Mr Mohr's statement to the police which made no reference to him having been aware of the respondent until he heard him scream. He also adopted Basten JA's findings that, on the basis of the speed at which Mr Mohr told the police he was travelling (10 kilometres per hour) and the distance he had travelled past the doorway from which the respondent had exited prior to hearing the respondent scream (10 - 15 metres), it would have taken Mr Mohr 3 - 4 seconds to cover the distance from the doorway out of which the plaintiff came until the point of impact: Boral Bricks 1 (at [24] - [25]).

29 The respondent accepted Basten JA's findings that it was "difficult to see how the forklift could not have been within the visual field of the plaintiff, had he indeed looked to the right (as he said he did) when he came out of the door (Boral Bricks 1 (at [27])), that it seemed "likely that he had already commenced to make that crossing when he was struck, given the angle of the forklift, which had already started to turn to the left to round the corner of the building" (Boral Bricks 1 (at [31])), that it might readily be inferred that in order to reach the point of impact at the time that the respondent reached that point, the forklift would probably already have been moving in the general direction of the doorway down the open area (Boral Bricks 1 (at [35])) and, finally, that "taking reasonable care for his safety would have required that he look both behind him and to his left before crossing the open area [and that] had he done so, he would inevitably have seen the forklift approaching and could have stepped out of the way: Boral Bricks 1 (at [31]).

30 However the respondent submitted that the use of forklifts in areas where pedestrians were obliged to walk created a risk of serious injury given that they were relatively large for the areas in which they were permitted to operate and the visibility of the driver was obscured by the presence of the masts and carrying mechanisms located at the front of the vehicle which were deployed at variable heights. Accordingly, the respondent contended that the appellant ought to have foreseen that a forklift driver might not observe the presence of a pedestrian and might run such a person down causing severe, if not fatal, injuries. He relied upon the evidence of Mr Roditis, an employee of the appellant, who had previously driven the forklift that struck him, who confirmed it had "blind spots" for a driver.

31 Accordingly, the respondent argued that the actions of the appellant in placing cones and tape extending only a limited distance from the workshop office door did not address the risk of contact between a pedestrian exiting the workshop office door to return to the fuel tank area because, at some point, such a person would be required to travel beyond the length of the tape and walk in a different direction. In this respect, the respondent referred to, and relied upon, documents the appellant produced on subpoena at trial concerning safe working procedures for forklifts at its premises, two of which recommended that pedestrians be excluded from areas where forklifts operated. I refer to those documents in greater detail later in these reasons.

32 The respondent also relied upon the fact that after the accident, the appellant installed a convex mirror on the roof of the fuel tank cover which enabled pedestrians to see vehicles approaching from behind and around the corner in front of them as demonstrating a precaution that could and should have been taken to avoid the accident. He pointed out that this precaution had been recommended in a C & C Safety Procedure Forklifts document dated 27 February 2007 and, accordingly, submitted that the omission to take this step prior to his accident should be taken into account in assessing the appellant's relative culpability.

33 Accordingly the respondent submitted that the Court should find his responsibility for the harm that befell him should be assessed at between five percent and ten percent.

Reply submissions

34 The appellant submitted in reply that it was open to the Court to find that the respondent saw the forklift, and contended that that was the only finding open on the evidence. It resisted the respondent's submissions that his culpability could be described as "momentary inattention", contending that it fell into the most significant breach of duty and causal potency. It emphasised that the site was well laid out with clear lines of visibility of approaching forklifts and that the conditions were not cramped, that there were rules made in an effort to give forklifts right-of-way having regard to "their inevitable restrictions on visibility", that the witches hats and safety tape provided sufficient guidance away from the office door to avoid people walking into the path of forklifts and, finally, that it was entitled to expect that people entering the site would exercise appropriate care for their own safety when moving about it, referring to Thompson v Woolworths [2005] HCA 19; (2005) 221 CLR 234 (at [35]).

35 The respondent submitted in reply that, even if (which he disputed) the only relevant comparison was between his and Mr Mohr's negligence, the causal potency of the latter's omission, bearing in mind he was driving an 8 tonne brick carrier, greatly exceeded his own, whereas his conduct "posed no danger to anyone but" himself, referring to Talbot-Butt v Holloway (1990) 12 MVR 70 (at 88) per Handley JA (referred to with approval in Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552; (at [127]) per Kirby J).

36 The respondent emphasised the fact that the Court found in Boral Bricks 1 (at [25]) that he would have been in view before the forklift passed the drive doorway, but that Mr Mohr did not see him before running over him even though he was wearing a high visibility vest.

37 The respondent further submitted that the appellant's culpability could not be confined to Mr Mohr's conduct and repeated his earlier submission that the Court had to take into consideration the fact that the appellant was in breach of its duty as the occupier with care and control of the premises because it failed to implement reasonably practical measures which might have obviated the accident in circumstances where the system of work to which it exposed lawful entrants included interaction with heavy forklift trucks moving around the site with drivers having limited visibility and where there were no adequate precautions taken to keep safeguard pedestrians from the risk of harm in such circumstances.

Contributory negligence: consideration

38 The primary judge found (at [4]) that the accident was a motor accident within the meaning of the Motor Accidents Compensation Act 1999 (NSW) (the "MAC Act") and, accordingly was governed by that legislation rather than the CLA. As I have said, the latter conclusion was incorrect, at least as a general proposition, because some parts of the CLA applied, notwithstanding that provisions of the MAC Act were also relevant.

39 In the present context mention needs only be made of s 138(1), (3), (4) and (6) of the MAC Act which provide:

"(1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.

...

(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

(4) The court must state its reasons for determining the particular percentage.

...

(6) This section does not exclude any other ground on which a finding of contributory negligence may be made."

40 In addition, s 138(2) of the MAC Act provides that the court must, in the circumstances there specified, make a finding of contributory negligence. None of those circumstances apply to this case.

41 Section 138 substantially reproduced s 74 of the Motor Accidents Act 1988 (the "MAA"). Relevantly, s 138(3) is on all fours with s 74(3) of the MAA.

42 Save as to s 138(2), s 138 does not address how a court should determine whether a person has been guilty of contributory negligence. Rather, that task is left to the "common law and enacted law": s 138(1).

43 At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed: Joslyn v Berryman (at [16]) per McHugh J.

44 Further at common law, it was an essential element of establishing contributory negligence that the plaintiff's lack of care for his or her own safety "actually contributed to the occurrence of the injury or the nature or extent of it": Nicholson v Nicholson (1994) 35 NSWLR 308 (at 333) per Mahoney JA; Astley v Austrust Ltd [1999] HCA 6; (1991) 197 CLR 1 (at [21]) per Gleeson CJ, McHugh, Gummow and Hayne JJ; Ackland v Commonwealth of Australia [2007] NSWCA 250 (at [138]) per Ipp JA (McColl JA agreeing), referring to Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 (at 165).

45 Thus, as Campbell JA (Mason P and Beazley JA agreeing) explained in Monie v Commonwealth of Australia [2007] NSWCA 230 (at [102]):

"The culpability element in contributory negligence is concerned with a situation where the conduct of a plaintiff is a cause of the particular damage that the plaintiff has suffered. The culpability element enquires whether the plaintiff's carelessness for his or her own interests means that to some extent the plaintiff can be blamed for the injuries he or she has suffered."

46 The enacted law of contributory negligence includes s 5R of the CLA: Taheer v Australian Associated Motor Insurers Ltd (trading as AAMI) [2010] NSWCA 191 (at [36]) per Giles JA (Harrison J agreeing); Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380 (at [79]) per Sackville AJA (McColl JA agreeing); Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464 (at [32]) per McColl JA (Macfarlan JA agreeing). However, even if s 5R was not part of the "enacted law", it would apply by virtue of s 3B(2)(a) of the CLA because it is found in Division 8, Part 1A of that Act. It provides:

"5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."

47 The correct legal question in determining the issue of contributory negligence in accordance with s 5R is "whether a reasonable person in the position of the [plaintiff], i.e. having the knowledge which the [plaintiff] had or ought to have had, was negligent": Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407 (at [217]) per Hoeben JA (Macfarlan and Ward JJA agreeing) applying Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) 174 LGERA 208 (at [107] - [108]) per Basten JA

48 While s 5R must be applied to determine whether a person has been guilty of contributory negligence, it says nothing about how, if that issue is determined by a finding adverse to a plaintiff, the relative culpability of the plaintiff and defendant are determined. That exercise is governed prima facie, by s 138(3) and, arguably also by s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (the "1965 Act") which deals with apportionment of liability in cases of contributory negligence and, in particular, s 9(1)(b) which provides that "the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage".

49 Section 9 is also part of the enacted law as to contributory negligence captured by s 138(1): Nominal Defendant v Rooskov [2012] NSWCA 43; (2012) 60 MVR 350 (at [117]) per Campbell JA (Young JA agreeing); see also Joslyn v Berryman (at [69]) per Gummow and Callinan JJ (referring to s 10(1) of the 1965 Act which, at the time applicable to the accident in that case, dealt with apportionment of liability in cases of contributory negligence.)

50 However there are differences between s 138(3) of the MAC Act and s 9(1)(b) of the 1965 Act. As Kirby J explained in Joslyn v Berryman (at [133]), albeit by reference to s 74(3) of the MAA (which as I have said is relevantly on all fours with s 138(3) of the MAC Act):

"Secondly, in s 74(3) of the Motor Accidents Act, Parliament has avoided the more complex statement of the criteria found in s 10(1) of the 1965 Act. There is no reference to the respective 'faults' of the persons involved. Nor is there a reference to the 'responsibility for the damage'. In s 74(3) provision is simply made for the reduction of the damages recoverable 'as the court thinks just and equitable in the circumstances of the case'. It is not entirely clear whether this more limited formula replaced the previous statement of the 'enacted law' set out in the 1965 Act. On the face of things, it appears to do so and thus leaves wholly at large the reduction for contributory negligence, made by reference to nothing more than what 'the court thinks just and equitable'"

51 Hayne J also considered the operation of s 74(3) and concluded (at [157]) that it required the decision-maker to undertake the process of apportionment as described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 (at 494). In Mackenzie v the Nominal Defendant [2005] NSWCA 180 (at [60] ff) (special leave refused, Nominal Defendant v Mackenzie [2005] HCATrans 844) Giles JA (Stein AJA and Gzell J agreeing) considered the different wording of s 9(1)(b) and s 138(3) and concluded (at [62] - [63]) that the latter still required the court to apply Podrebersek v Australian Iron & Steel Pty Ltd. His Honour accepted that s 138(3) was the applicable provision no doubt because the case involved an intoxicated plaintiff in which circumstance s 138(2) as then in force was invoked. However as s 138(1) only captures the "common law and enacted law as to contributory negligence ... except as provided by this section", in my view the apportionment exercise must be undertaken in accordance with s 138(3). As is apparent from what follows this may be a distinction without a difference.

52 Neither party referred to either s 9(1)(b) or s 138(3), both being content to submit that the question of apportionment the "just and equitable" test invokes requires attention to the "degree of departure from the standard of care of the reasonable man": Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 (at 16). The reasoning in Pennington v Norris finds reflection in the statement in Podrebersek v Australian Iron & Steel Pty Ltd (at 494) that the just and equitable apportionment test requires:

"... a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."

These statements were re-affirmed in Wynbergen v Hoyts Corp Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65 (at 66) per Hayne J (Gaudron, McHugh, Gummow, Kirby JJ agreeing).

The operation of s 5R

53 Section 5R and s 5S of the Civil Liability Act presuppose that someone has been contributorily negligent. They operate to modify the way in which the law of contributory negligence operates under the 1965 Act rather than creating by themselves any particular rights or defences: ACQ Pty Ltd v Cook (2008) 72 NSWLR 318; [2008] NSWCA 161 (at [158]) per Campbell JA (Beazley and Giles JJA agreeing); Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; (2013) 279 FLR 202 (at [180]) per Gleeson JA (Basten and Meagher JJA agreeing).

54 The question whether a person has been guilty of contributory negligence is determined objectively, the question being whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; [2009] Aust Torts Reps ¶82-043 (at [146]) per McColl JA (Ipp JA agreeing); Council of the City of Greater Taree v Wells (at [83]) per Beazley JA (McColl and Basten JJA agreeing); Nominal Defendant v Meakes (at [80]) per Sackville AJA (McColl JA agreeing).

55 Section 5R reflects the concept expressed by Callinan and Heydon JJ in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [220]), "that the duty to take reasonable care for one's own safety does not 'disregard the burden, by way of social security and other obligations that a civilised and democratic society will assume towards [a plaintiff] if he is injured' [as well as]... the expectation, expressed in the Negligence Review [Review of the Law of Negligence, Final Report, September 2002] at para 8.10, that 'people will take as much care for themselves as they expect others to take for them'": Waverley Council v Ferreira [2005] NSWCA 418; [2005] Aust Torts Reps ¶81 - 818 (at [85] - [87]); Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; [2005] Aust Torts Reps ¶81 - 815 (at [68] - [70]) per Ipp JA (Giles and Hunt AJA agreeing).

56 The words "reasonable person in the position of that person" in s 5R are equivalent to the words "a reasonable person in the plaintiff's position": Waverley Council v Ferreira (at [87]); Carey v Lake Macquarie City Council [2007] NSWCA 4 (at [10]); Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; [2008] 172 IR 453 (at [14]) per McColl JA (Mason P and Beazley JA agreeing).

57 The fact that s 5R reflects a plaintiff's duty to take care for his or her own safety, rather than a duty to anyone else should be emphasised. Thus "a plaintiff can be guilty of contributory negligence notwithstanding that he or she owes no duty to the defendant or any third person [as reflected in the proposition that a] pedestrian ... owes no duty to a speeding driver to avoid being run down but is guilty of contributory negligence if he or she fails to take reasonable care to keep a proper lookout for speeding vehicles": Astley v Austrust Ltd (at [21]) per Gleeson CJ, McHugh, Gummow and Hayne JJ.

58 Thus, it can be seen that s 5R, insofar as it picks up s 5B of the Civil Liability Act, reflects the common law proposition concerning contributory negligence McHugh J explained in Joslyn v Berryman (at [16]) (see above at [43]). As his Honour added, "[i]n principle, any fact or circumstance is relevant in determining contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise to the injury suffered": Joslyn v Berryman (at [16]).

59 It is not apparent that s 5R goes further than invoking s 5B (and probably s 5C) of the CLA. This matter was not argued, but on this assumption, the common law requirement as to the role of the plaintiff's negligence in contributing to the injury applies, rather than the "necessary condition of the occurrence of the harm" test in s 5D(1)(a).

The relative culpability of the parties

60 In considering the degree to which the appellant and respondent departed from the standard of what is reasonable, it is necessary to have regard to the duty of care the appellant owed the respondent: Astley v Austrust Ltd (at [30]). That subject received no consideration at trial (or in the parties' submissions on appeal), it presumably having been common ground that the appellant, as occupier, owed the respondent as entrant a duty to take reasonable care to prevent injury to him on the assumption he was using reasonable care for his own safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 ; (2007) 234 CLR 330 (at [45]) per Gummow J;

61 As the High Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) explained in Thompson v Woolworths (Queensland) Pty Ltd (at [24] - [27]) the following factors are relevant to the relationship between the parties. First, the status of the appellant as occupier of the land on which the respondent was injured gave the appellant a measure of control that is regarded by the law as important in identifying the existence and nature of a duty of care. Secondly, the purpose for which, and the circumstances in which, the respondent was on the appellant's land. Just as in Thompson v Woolworths (Queensland) Pty Ltd the respondent was on the appellant's land delivering goods, in this case fuel, to the appellant for use in the course of the appellant's business. Thus, "[s]ince the [appellant] established the system to which the [respondent] was required to conform, the [appellant's] duty covered not only the static condition of the premises but also the system of delivery": Thompson v Woolworths (Queensland) Pty Ltd (at [26]).

62 The delivery system included the requirement that the respondent walk to and from the office to obtain a key to the fuel tank into which his load was to be pumped and to complete paper work: primary judgment (at [24]).

63 Accordingly, as "the [appellant] established and maintained a system ... its obligation to exercise reasonable care for the safety of people who came on to its premises extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury": Thompson v Woolworths (Queensland) Pty Ltd (at [27]). It was incumbent upon the appellant, in my view, to ensure that its system took into account that pedestrians in and around its site, particularly strangers to the premises (even those who had made regular visits) might be inattentive or even negligent in regards to their appreciation of the travel of forklifts in the area: cf Thompson v Woolworths (Queensland) Pty Ltd (at [35]); Taheer v Australian Associated Motor Insurers Ltd (trading as AAMI) (at [42]).

64 Insofar as the respondent is concerned, it is relevant that his relationship with the appellant was not that of an employee, but an entrant: Thompson v Woolworths (Queensland) Pty Ltd (at [40]). In that context, perhaps somewhat more emphasis might be placed on his obligation to take reasonable care for his own safety, although what that means will depend upon the circumstances of the case: Thompson v Woolworths (Queensland) Pty Ltd (at [35]).

65 Turning to s 5B, it is apparent that the appellant appreciated the risk of harm to pedestrians who had to interact with the forklifts using the premises. The risk of physical injury to such persons was clearly not insignificant and had been adverted to by the appellant prior to the accident. It is apparent from the pre-accident recommendation to the appellant in the C & C Safety Procedure Document that it install a convex mirror "especially in areas where there are risks", that the appellant was alive to the risk of forklifts operating in areas where pedestrians were present. This was also emphasised earlier in the document which warned that "[t]he use of forklift trucks ... in industry is often associated with substantial risks [including] severe injuries and fatalities ... [and] the risk to both the operator and other persons in the vicinity is still significant if proper safe systems of work are not in place". In that light, no doubt, the document recommended under the heading "Safe Work Areas" that:

"5.7... Barricades: ... pedestrian and traffic areas should be barricaded or clearly designated. Where possible, pedestrian traffic should be separated from forklifts and other vehicles."

66 These recommendations, which one might think were a matter of common sense, were not implemented. Instead the appellant required entrants such as the respondent to move about its site without adequate separation from forklifts, without any means other than visual observations to alert them as to the possible arrival of a forklift from at least two directions (in the case of the instant accident) and, most importantly without any knowledge of the limited observations of the forklift driver of those in his path. Even if the respondent had seen the direction on the Visitor's Pass that forklifts had right of way, its meaning was obscure insofar as pedestrians were concerned. A reasonable person reading it might well conclude that it applied to vehicles (such as that the respondent drove onto the site), rather than to pedestrian traffic.

67 Insofar as Mr Mohr is concerned his conduct also manifested a severe departure from the standard of reasonable care. There was, as Basten JA said in Boral Bricks 1 (at [25]), no issue that Mr Mohr was guilty of negligence. As Mr Johnston opined, and in any event as one might expect, he was obliged to keep a proper lookout. Indeed, the C & C Safety Procedure document advised in the section dealing with "Safe Systems of Work" that "5.4.2 ... pedestrians must be given right of way". Had he done so Mr Johnston further opined he ought to have seen the respondent during the time which elapsed between when the respondent exited the office door and the accident.

68 Turning to the respondent, it is relevant to note that while the appellant relied upon his knowledge that forklifts should have right of way (a fact which it has not been found he was aware of) or, at least, his knowledge that there were forklifts travelling in and around the site, there has been no suggestion that he knew, or a reasonable person in his position should have been aware, that forklift drivers had limited vision, such that Mr Mohr's ability to see the respondent, notwithstanding his high visibility clothing, may have been compromised. There is no basis in the evidence, in my view, for the appellant's submission that the respondent must have seen the forklift yet walked straight into its path.

69 I accept, as the appellant submits, that the respondent should have been alert to his environment and should have, but did not, look to see whether a forklift was in the vicinity prior to walking either along the path separated by cones from the road, or when stepping beyond them. In that respect he exposed himself to a risk of injury which might reasonably have been foreseen and hence was guilty of contributory negligence.

70 Turning to the apportionment issue, it is relevant to take into account in assessing the parties' relative culpability both the appellant's control of the site and implementation of the systems in which its employees as well as entrants were required to work as well as the fact that a driver is "in charge of a powerful vehicle [and has] obligations to exercise care for pedestrians in the position of the appellant": Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 (at [46]) whereas the pedestrian's conduct, although contributorily negligent, does not endanger the driver of the vehicle or anybody else: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 (at 16); Smith v Zhang [2012] NSWCA 142; (2012) 60 MVR 525 (at [13] - [16]) per Macfarlan JA; (at [29] per Meagher JA (with whom Tobias AJA agreed).

71 In my view the appellant's culpability for the accident, having regard to its obligations as occupier of the site to ensure that its system of work did not expose entrants to unreasonable risk of physical injury and its responsibility for Mr Mohr's failure to keep a proper lookout manifestly exceeded the respondent's culpability. In that respect I would accept the respondent's submission that his failure to keep a proper lookout should be characterised as an act of momentary inattention, albeit that it did constitute a departure from the standard of care he ought to have exercised in the circumstances in which he was walking. It is clear that his omission contributed to the harm which befell him.

72 I would assess the respondent's contributory negligence at 10 per cent.

73 I agree with Basten JA's reasons on the costs issue.

74 I agree with Basten JA's orders, save that in lieu of the judgment of $717,970 his Honour proposes in order (2), I would order that there be judgment for the respondent against the first defendant in the amount of $923,104.80, being 90 per cent of the damages assessed by the primary judge as reduced on appeal: see Boral Bricks 1 (at [104]).

75 BASTEN JA: On 18 April 2008 the respondent, Mr Orestis Cosmidis, delivered a tanker load of fuel to premises occupied by the appellant, Boral Bricks Pty Ltd, at Badgery's Creek, south-west of Sydney. After completing the delivery and attending the appellant's office, he walked back towards his tanker. He was hit from behind by a forklift and suffered significant injuries.

76 The respondent obtained a judgment from the District Court against Boral Bricks, which was found liable in negligence. Boral Bricks did not challenge the finding of liability, but did appeal from the finding that there was no contributory negligence on the part of Mr Cosmidis. (The extent of the appeal is considered further below.) On 18 December 2013 the Court upheld the appeal: Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443. The Court directed that the parties have an opportunity to make further submissions as to whether:

(a) the question of contributory negligence should be remitted to the District Court;

(b) if not, there should be a further hearing on the issue in this Court,

and were given an opportunity to file further written submissions with respect to -

(c) the issue of contributory negligence, and

(d) the appropriate orders as to costs.

77 In accordance with those directions, both parties filed submissions on 24 January 2014. The parties were agreed that this Court should determine the issue of contributory negligence and, as confirmed by submissions in reply filed on 5 February 2014 on behalf of the respondent, neither party sought a further oral hearing.

Contributory negligence

78 Both parties made submissions as to contributory negligence prior to the hearing of the appeal on 25 November 2013; both supplemented their submissions in writing in accordance with the directions given on 18 December 2013. It is necessary to identify the relevant principles before considering their application to the facts of the case.

(a) relevant principles

79 The appellant submitted that the case must be decided by reference to s 5R of the Civil Liability Act 2002 (NSW). That section provides:

5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

80 The appellant further submitted that the relevant principles had been summarised by Beazley JA (with whom McColl JA agreed) in Council of the City of Greater Taree v Wells [2010] NSWCA 147 in the following terms:

"[82] In Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 at [67] and [68], Ipp JA (Giles JA and Hunt AJA agreeing) noted that in determining whether a plaintiff has been contributorily negligent it is necessary to have regard to the plaintiff's personal responsibility for his or her own safety. As Callinan and Heydon JJ remarked in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, at [220] 483, a person owes a duty:

'... not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized.'

These remarks are consistent with the provisions of the Civil Liability Act, s 5R(1): Consolidated Broken Hill per Ipp JA at [67] 558-559.

[83] Contributory negligence is determined objectively from the facts and circumstances of a case, which includes what the plaintiff knew or ought to have known at the time: s 5R(2)(b); Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [16]."

81 The appellant referred to the statement of the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494 that:

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682 ...."

82 The respondent adopted the same passage from Podrebersek, but added a reference to Talbot-Butt v Holloway (1990) 12 MVR 70, where Handley JA stated at 88, reflecting the reasoning in Pennington v Norris [1956] HCA 26; 96 CLR 10:

"The evaluation and assessment of the culpability of the plaintiff and the defendant must take proper account of the fact that ... the plaintiff's conduct posed no danger to anyone but herself, while the defendant who was driving (the vehicle) ... was in charge of a machine that was capable of doing great damage to any human being who got in its way."

83 One feature of recent case law is the frequent reference to the "common law rules of contributory negligence". (Even under the common law it was rarely helpful to refer to 'rules' as opposed to 'principles': see Alford v Magee [1952] HCA 3; 85 CLR 437 at 456 and 460.) However, were it not for the terms of the Motor Accidents Compensation Act 1999 (NSW) and the Civil Liability Act, contributory negligence would be assessed in accordance with s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ("the 1965 Act"). That section relevantly provides:

9 Apportionment of liability in cases of contributory negligence

(1) If a person (the claimant) suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person:

...

(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.

84 The Motor Accidents Compensation Act provides that "[t]he common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section": s 138(1). The section then provides that findings of contributory negligence must be made in particular cases, but expressly preserves any other ground: s 138(2) and (6). Section 138(3) states that "[t]he damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case." Although this last provision is not identical in terms to s 9(1)(b) of the 1965 Act, because s 138 does not purport to impinge on the obligation to have regard to the injured person's share in the responsibility for the damage, it should not be read as an exception to which s 9(1) is made subject by s 138(1) of the Motor Accidents Compensation Act.

85 Section 5R of the Civil Liability Act is found in Div 8 of Pt 1A. Those provisions expressly apply to motor accidents: Civil Liability Act, s 3B(2)(a). The Civil Liability Act being enacted later than the Motor Accidents Compensation Act, and making specific provision in s 3B for its operation with respect to motor accidents, should not be taken as subject to s 138. Rather, it should be given operation according to its terms.

86 In this somewhat complex statutory scheme it is not clear what role is to be played by the "common law", including the reference in s 138(1) of the Motor Accidents Compensation Act. If (as must be the case) it means no more than the way courts have construed the statutory provisions, it is not only otiose, but "is apt to distract attention from the supreme importance of statute law", to adopt the language of Gummow J in Sons of Gwalia Ltd v Margaretic [2007] HCA 1; 231 CLR 160 at [35]; and see Walker Corporation v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259 at [30]-[31] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50; 304 ALR 1 at [18] (French CJ). For example, s 5R(2) of the Civil Liability Act deals with the "standard of care", which may or may not affect the "just and equitable" test in s 9 of the 1965 Act.

87 The references in the case law are often to the "rules" identified by McHugh J in Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at [16]ff. These references are curious for a number of reasons. First, Joslyn was concerned with the application of s 74(2) of the Motor Accidents Act 1988 (NSW), not the common law (assuming the intended distinction is between the common law and statute; cf Leeming JA in Frost v Kourouche [2014] NSWCA 39 at [31]). McHugh J was indeed conscious of that distinction, making clear the importance of the statutory test at [14]. The following paragraphs of his judgment involved an historical account of the "common law" of contributory negligence, at a time when contributory negligence was a complete defence and the common law devised a number of mechanisms to diminish the unsatisfactory consequences. Secondly, no other member of the Court expressly adopted the reasoning of McHugh J. Thirdly, whilst doubting the current applicability of the reasoning of the High Court in Cook v Cook [1986] HCA 73; 162 CLR 376 (in respect of the duty of a care owed by a learner driver to an instructor) Joslyn pre-dated the decision in Imbree v McNeilly [2008] HCA 40; 236 CLR 510 which overruled Cook.

88 Finally, although there have been statements in this Court to the effect that s 5R(2) reflects the principle stated by McHugh J in Joslyn, the correctness of that statement is not self-evident and the reasoning underlying it has never been fully exposed, no doubt because it has been accorded the status of received wisdom. However, McHugh J described the test of contributory negligence as "an objective one": Joslyn, at [32]. He described it as one which "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question", quoting Glasgow Corporation v Muir [1943] AC 448 at 457 (Lord Macmillan). McHugh J noted exceptions in respect of children and possibly certain other "special and exceptional circumstances" (referring to Cook) at [30] and [32]. The standard identified in s 5R(2)(a) is at best a qualified objective test: it is not one that conforms to the language adopted by McHugh J in Joslyn.

89 For present purposes, it is not necessary to consider whether those statements remain correct, a matter which depends not at all on the common law, but on the meaning of the phrase "a reasonable person in the position of [the injured person]". However, what does need to be determined is the extent to which the approach adopted in Pennington v Norris, and relied on in Talbot-Butt, continues to operate.

90 There are, as I sought to explain in Council of the City of Greater Taree v Wells at [107]-[108], considerable difficulties in applying the same legal principles in determining negligence of the defendant and determining whether the injured party was contributorily negligent in failing to take precautions "against the risk of that harm". Secondly, it is not entirely clear whether, by an implication from the statement in sub-s (1) that the principles applicable in determining negligence also apply in determining contributory negligence, the standard of care identified in sub-s (2) in relation to the injured person also applies to the person causing the injury: cf D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed, 2013, Lawbook Co) at 247.

91 Thus, in the present case, the appellant is vicariously liable for the negligent operation by the driver of the forklift, and is liable for any lack of reasonable care in providing a safe system of work as the operator of a commercial venture on land which it occupied and controlled. By contrast, the injured respondent was a visitor to the premises, with no control over the operation of vehicles (other than his own) on the premises and was a pedestrian when struck. In Pennington v Norris, the Court (Dixon CJ, Webb, Fullagar, Kitto JJ) said with respect to a pedestrian run down at night on a public road (at 16):

"The plaintiff's conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration. The defendant's position was entirely different."

92 The judgment then noted that the defendant did not merely fail to keep a proper lookout, but drove too fast in circumstances where it was a misty night, the road was wet and visibility was impaired in part by mistiness on the inside and outside of the windscreen. Driving at 30 miles per hour in a town at night under those circumstances was described as "an obviously dangerous thing": at 17.

93 Findings of fact are not, of course, binding on this Court. It would be open to a court in such circumstances to find that a pedestrian walking carelessly across the road had endangered others, because of the very real risk that a car forced to swerve violently to miss a pedestrian might collide with another vehicle, or even another pedestrian. Further, although the Court eschewed any attribution of "moral blameworthiness" the assessment of "culpability" did not appear to involve markedly different considerations. If the respective dangerousness of a pedestrian's conduct and the conduct of a driver is always a substantial factor, the most careless pedestrian will recover a significant proportion of his loss even though the negligence of the driver was limited, because it is the latter who is driving, in the words of Handley JA, "a machine that was capable of doing great damage to any human being who got in its way".

94 The intended purpose of s 5R is clearer than its actual operation. It was intended to apply to the assessment of contributory negligence the general principles set out in s 5B (and arguably s 5C) in determining the negligence of the defendant. Like s 5B(1)(c), s 5R(2) adopts the qualified objective test of "a reasonable person in the position of [the plaintiff]".

95 According to the final report entitled Review of the Law of Negligence (September 2002, commonly referred to as the Ipp Report) the provision was intended to change current practices. Somewhat rhetorically, the report asked at paragraph 8.7:

"Should the law allow people to take less care for their own safety than it requires others to take for their safety? ... Another way of putting this question is to ask whether the standard of care applicable to victims of the negligent conduct of others should be different from that applicable to the negligent person merely because they are victims?"

96 The Report then stated at par 8.11:

"Leading text book writers have asserted that in practice, the standard of care applied to contributory negligence is lower than that applied to negligence despite the fact that, in theory, the standard should be the same. There is a perception (which may reflect the reality) that many lower courts are more indulgent to plaintiffs than to defendants. In some cases judges have expressly applied a lower standard of care for contributory negligence. This may result, for example, in motorists being required to keep a better lookout than pedestrians. In the Panel's view, this approach should not be supported."

97 The penultimate sentence was supported by reference to three judgments in the High Court and two in the South Australian Supreme Court. The comments of Murphy J in Watt v Bretag (1982) 56 ALJR 760 at 762-763, are in point. Referring to the South Australian equivalent of the 1965 Act, s 9(1)(b), Murphy J stated:

"The speed and size and weight of the vehicles in contributing to the severity of the damage should be taken into account, not merely those factors which contributed to the collision. ... For example, where the collision is between a semi-trailer or other juggernaut vehicle and a pedal bicycle, even if the driver and the plaintiff rider each made an equal contribution to causing the collision, it would generally be just and equitable to reduce the plaintiff's damages not by half, but by much less. Similarly, excessive speed may greatly increase the damage, even though the fault of the other driver was the major cause of the collision."

98 There is some irony in placing reliance on the reasoning of Handley JA in Talbot-Butt: his was a dissenting judgment. Further, in the following paragraph, he was inclined to diminish the weight to be given to the factor which he had identified. On the other hand, Clarke JA (who, with Kirby P, constituted the majority) expressed a similar view at 78(45). Clarke JA described this factor as being of "primary relevance" in determining the relative responsibilities, referring to Evers v Bennett (1982) 31 SASR 228 at 234, where Zelling J stated that "[t]he train of authority over many years is to hold the motorist, who is capable of doing considerable injury to a pedestrian, more culpable than the pedestrian in such circumstances." Evers was one of the cases identified in the Ipp Report as expressly applying a lower standard of care to plaintiffs.

99 Assuming that the requirement that people should take responsibility for their own lives and safety is now reflected in s 5R, and was intended to override the approach of Murphy J in Watt, there is a question as to whether the statements in Talbot-Butt still reflect the law in this State. The potential dangerousness of heavy machinery and fast vehicles can no doubt be applied universally, although the consequence of its application will vary depending on whether one, both or neither party is in control of such a vehicle. On the other hand, applying the general principles in s 5B(2) one could approach the matter differently. Thus, the probability that harm would occur if care were not taken and the likely seriousness of the harm would operate differentially with respect to the driver of the forklift and the pedestrian, but with the same result. That is, no distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. If the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally.

100 A purposive approach to the operation of s 5R (and s 5B) requires that this approach be adopted. To approach the matter in this way is not to decline to follow applicable earlier authority of this Court. Talbot-Butt long pre-dated the Civil Liability Act; it also pre-dated s 74 of the Motor Accidents Act, the forebear of s 138 of the Motor Accidents Compensation Act.

(b) application of principles

101 It is convenient to deal first with the appellant's share of the responsibility for the accident. Because it did not challenge its liability on appeal, it was not necessary to consider the basis of that liability in the earlier judgment of this Court. To do that, it is necessary to refer to the reasons given by the trial judge, Levy DCJ, relevant to that issue.

102 The trial judge found the appellant liable on two bases, namely vicarious liability for the negligent driving of its employee and, directly, for not implementing its own system for managing traffic.

103 As to vicarious liability, the trial judge stated at [161]:

"In this case, the plain fact is that the plaintiff was struck, knocked down and dragged along by the forklift because [the driver] had not seen him. In my view, those circumstances bespeak a clear failure on the part of [the driver] to keep a proper lookout whilst driving the forklift in circumstances where he must have known it was likely that persons such as the plaintiff could be walking about on site."

104 The next sentence appeared to qualify this finding to an extent, stating that "[t]his clearly amounted to negligence where [the driver's] view of the path ahead had been obscured". The reference to obscured vision was to an earlier statement that "forklifts were being driven about by drivers with a restricted view of what was ahead, whether this was because of the nature of the loads or because of the position of the grabbing mechanism and forklift masts": at [142]. As will be seen, the appellant had identified the potential problem and devised a system to reduce the risk of collision. The driver's limited vision may have lessened his share of responsibility for the accident, but that aspect was, in effect, transferred to the appellant, as the party responsible for the operations of the forklift and health and safety on its site.

105 There was in evidence a document (Ex L) entitled "Safe Working Procedures - Traffic Management Plan", which was dated 17 June 2008, having been produced two months after the accident. The trial judge referred to the contents of that document at [30]-[32], without referring to the date. When he returned to a discussion of Ex L at [139]-[143], the inference was drawn that "the problem that emerged in this case was one of ensuring that the above systems were implemented and adequately maintained on the site": at [142]. Again, there was no identification of the fact that Ex L post-dated the accident.

106 By contrast, when describing what was identified as "another Boral Safety Procedures manual" (Ex K), the date of the document, namely 27 February 2007 (pre-dating the accident) was expressly noted: at [33]. The document stated that "[e]nsuring the safety of pedestrians is a critical aspect of workplace traffic management": at par 5.10. The document then stated in capitals, "Protecting pedestrians at the workplace requires decisive action to prevent, not just discourage, pedestrians and forklifts from coming into close proximity." It identified matters for consideration including the provision of "clearly marked 'No Go' or exclusion zones for both pedestrians and forklifts" and the erection of "physical barriers to protect all marked pedestrian walkways and/or enclose designated forklift operating areas to prevent pedestrian access".

107 Exhibit J was a training manual for forklift safety, prepared in 2006 by an independent entity. The trial judge did not make a finding as to Boral's knowledge of the contents of that document, although he noted that the manual "required that pedestrians be excluded from all areas where forklifts operated", a safety requirement which he said "was not implemented": at [150]. As Ex K made a similar recommendation, the provenance of Ex J need not be considered further.

108 The primary findings made at trial with respect to Boral's own negligence was as follows:

"[139] As to the provision for an adequate system of managing traffic, Boral did in fact have such a system, albeit a cumbersome one, as identified in Exhibit 'L', and summarised at paragraphs [29] to [32] above, and which provided for the deployment of a person described as a spotter, to advise and guide the forklift driver when the view ahead was obstructed.

[140] In my view, Boral's designated system of requiring a forklift to cease operating immediately and to give way to a pedestrian if the forklift was within 3 metres of a pedestrian, and for the deployment of a spotter to work in conjunction with the forklift, was an appropriate one for the site given the nature of the operations on site. ...

[141] In the absence of specified or designated traffic areas providing for the separation of pedestrians and vehicular traffic, including the provision of crossing points for pedestrians and vehicles where necessary, the requirement that forklifts give way to pedestrians was a sensible appropriate one, as was the requirement that forklifts not travel closer than 3m to pedestrians: Exhibit 'L'.

...

[143] Although Boral's safety manual Exhibit 'L' provided for the deployment of a spotter in such circumstances, for some unexplained reason, this was not done at the time of the accident. It is plain that if a person in the role of a spotter had been deployed, as was envisaged by the site operations manual to which I have already referred, the plaintiff's accident would have been an unlikely occurrence. I consider that the non-deployment of a spotter in the circumstances of the movement of the forklift about the site where the driver had a restricted view, and the subsequent occurrence of the plaintiff's accident, fulfilled all the requirements of s 5B and s 5D of the CL Act to properly base a finding of negligence."

109 No doubt the "unexplained reason" for not following the directions in Ex L was that it did not exist at the time of the accident. Further, the trial judge appears to have treated the contents of Ex L as a basis for finding negligence. Whilst it was open to the judge to find that the need for a "spotter" should have been foreseen prior to the accident, it was important to bear in mind the requirements of s 5C(c) that "the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk". The fact that the trial judge thought the use of a "spotter" to be "cumbersome" suggests that a more careful assessment of that particular of negligence was required. While the finding was not challenged, its weight on a comparative basis remains to be determined.

110 Three factors are of critical significance in assessing the respective responsibilities of the parties. First, it was apparent that the procedures (not shown to be unreasonable in themselves) which involved the respondent walking from the fuel tank to the office involved him crossing an area in which forklifts were operating. There was a contention that the forklifts could have avoided crossing that area, but there was no assessment of the practicality of the alternative route. The evidence did not warrant a finding that an exclusion zone was reasonably practicable.

111 Secondly, while it was true that a "spotter" might have been a mechanism for greater safety, there must have been a question as to where the spotter would have been at the time of the accident. It is clear that the forklift was travelling faster than the respondent's walking speed and that it was not carrying a load at the time of the accident. Presumably the spotter was not to walk in front of it carrying a red flag. Exhibit L suggested that a spotter must be used where "a load or obstacle impedes or blocks the view of the Operator". It is by no means clear that this requirement would have been engaged at the time of the accident.

112 Thirdly, a number of possible safety features, such as the fitting of a horn to enable a warning to be sounded by the driver of the forklift would have been ineffective in the present case: no warning would have been sounded because the driver did not see the respondent. The trial judge apparently did not know whether there was a horn or other warning device attached to the forklift: see [156] and [157]. Nevertheless, he concluded that the failure to operate the device was a relevant breach of duty: at [157] and [158]. Again the finding is not challenged, but in terms of responsibility for the accident, that appears to have been no more than a consequence of a failure to keep a proper lookout by the driver.

113 Something was sought to be made in the course of the trial of the conditions contained on the visitor's pass with which the respondent was issued at the gateway to the site. One condition stated that "[f]orklifts have right of way". The trial judge did not consider that the responsibility of the respondent for the injury was affected by his failure to comply with such a direction. In the absence of any evidence that the direction was drawn to his attention, that finding should be accepted as applicable to contributory negligence also.

Conclusion - contributory negligence

114 With respect to the appellant's share of responsibility for the accident, the dangers of forklifts operating in areas where there were pedestrians were well understood by it. It had control of the site and was responsible for ensuring that adequate safety precautions were in force. Whilst the finding that a "spotter" should have been used should be accepted, in the absence of any challenge, the causal effect of the failure is limited.

115 The trial judge concluded that although the row of safety cones and tape provided protection so far as they went, there should have been provision "for delineating a safe and segregated pathway for pedestrians who had a need to continue walking beyond the point of the last of the row of safety cones": at [152]. Presumably that meant some marking on the roadway, of which the forklift driver would also be required to take note. This finding was somewhat imprecise, but may be accepted as a particular of negligence.

116 Although the driver's view was obstructed by elements of the machinery, it is clear that he must have failed to keep a proper lookout, or he should have seen the respondent in his yellow safety vest.

117 With respect to the respondent's share of responsibility for the accident, this Court found in its first judgment that "the position of the forklift, the apparent point of initial impact and the implausibility of the suggestion that the plaintiff had looked to right and to left after he came out of the office but did not see the offending forklift anywhere" supported a finding of contributory negligence: at [65]. It is not possible, on the evidence, and in the face of the respondent's denial, to be satisfied that he did see the forklift. However, if he looked in all directions when he came out of the office, he should have seen the forklift. Further, having walked down the line of safety cones, whilst wearing earplugs, he proceeded into an area where he knew that the forklift operated without looking behind him.

118 The circumstances in which the accident occurred are more fully set out in the Court's first judgment, rejecting the finding that there was no contributory negligence. Given those circumstances (which need not be repeated) and the elements of negligence on the part of the appellant, an appropriate finding is that the respondent was 30% contributorily negligent for the accident. The damages awarded must be reduced accordingly.

119 The damages assessed by the trial judge, as reduced on appeal - see first judgment at [104] - are assessed at $1,025,672, 70% of which is $717,970. There should be judgment for the respondent in that sum. The judgment should take effect from the date of the judgment in the District Court, namely 13 September 2012.

Costs

120 Both parties made submissions with respect to the costs of the trial and of the appeal. Each also made an alternative submission that there should be a further opportunity to address costs once this judgment had been delivered. However, as the assumptions on which the submissions were made have largely been fulfilled, there is no need to provide a further opportunity.

121 The trial judge ordered that the appellant pay the respondent's costs of the trial, to be assessed on the ordinary basis. Because of its success in overturning aspects of the trial judgment on appeal, the appellant submitted that it should only have to pay 75% of the costs of the trial. The basis of that apportionment was that the trial exceeded the three-day estimate and would not have done absent the errors.

122 The trial in fact ran over five days: however, there is no basis beyond speculation for this Court to determine that there would have been a significant saving in time (let alone a reduction of two days) if, as the appellant contended, Mr Johnston's report had been admitted and the objections in relation to cross-examination had not been upheld. Since the respondent has retained the bulk of his judgment, there is no adequate basis to interfere with the costs order made by the trial judge.

123 With respect to the costs of the appeal, the appellant contended that it had been successful "with the substance of its appeal" and therefore should have the costs of the appeal. In his initial supplementary submissions, the respondent contended that the Court should order that the appellant should pay the costs of the appeal as well as the trial. In reply, he abandoned that somewhat extravagant position and submitted that there should be no order as to the costs of the appeal, with the intent that the parties bear their own costs.

124 This submission was based on the proposition that the appellant had had only limited success. Although the notice of appeal did not expressly challenge the finding on liability, it did contend that the constraints imposed on the cross-examination of the respondent and the refusal to allow it to amend its defence to include particulars of negligence on the part of the respondent's employer, necessitated a retrial. As the respondent noted, that approach was maintained up to the hearing of the appeal. That position was not accepted by the Court.

125 Of three challenges to heads of damages, the appellant was successful with respect to two, but not with respect to future economic loss, which was the largest single item of damages. With respect to contributory negligence, the appellant was successful in overturning the refusal of the trial judge to make any reduction on this account. However, it was not successful in its submission that the respondent's share of responsibility for the accident "far exceeds" that of the appellant. On the other hand, the respondent's submission that contributory negligence should be in the range between 5% and 10% was also not accepted.

126 As explained in the first judgment, neither party maintained an entirely rational position with respect to the rejection of cross-examination and amendment to the defence. Given that each had a degree of success on the appeal, the respondent's submissions should be accepted, namely that there be no order as to the costs of the appeal, each party being left to bear its own costs.

Orders

127 The Court should make the following orders:

(1) Allow the appeal in part and set aside order (1) made by the District Court on 13 September 2012.

(2) In place thereof, give judgment for the plaintiff against the first defendant in the amount of $717,970, such judgment to date from 13 September 2012.

(3) Make no order as to the costs of the appeal.

128 EMMETT JA: On 18 December 2013, the Court published reasons for concluding that the appeal in these proceedings should be upheld in part. However, the parties were directed to make further written submissions on the question of contributory negligence on the part of Mr Cosmidis. The Court has now received further submissions on that question and the parties do not want any further oral hearing.

129 I have had the advantage of reading in draft form the proposed reasons of Basten JA for concluding that the extent of the contribution of the negligence of Mr Cosmidis to the accident in which he suffered his injuries was thirty percent. I agree with his Honour's conclusion and the orders proposed by him for the reasons given by him.

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Amendments

09 May 2014 - Typographical error
Amended paragraphs: [71]

10 December 2014 - Typograpical errors; amending citation [90]
Amended paragraphs: [90], [99], [122]

Decision last updated: 10 December 2014