Thinking | 19 February 2019
Third party liable to contribute to damages for injury caused by negligence of another
The WA Court of Appeal has upheld a District Court judge’s decision apportioning 25% liability to Harvey Norman, in a case involving a customer injured while collecting purchases from Harvey Norman’s warehouse in Osborne Park.
Mr Gallagher and a Harvey Norman employee were loading Mr Gallagher’s vehicle, which was parked in a common access way. The Harvey Norman warehouse had a designated loading bay, but Mr Miloradovic’s truck was blocking access to it. Mr Miloradovic, who had just completed a delivery to another business in the complex, reversed his truck but failed to keep a proper lookout and Mr Gallagher was pinned between the two vehicles.
Mr Miloradovic consented to judgment being entered against him in the sum of $865,000 inclusive of costs. He then sought a contribution from Harvey Norman, claiming that it was also negligent.
Judge Stevenson found Harvey Norman had directed Mr Gallagher, its customer, to the loading bay to collect his goods. His Honour found Harvey Norman liable in negligence, finding that ‘any reasonable store owner… would, in the circumstances, have taken some precautions against the risk’ of a potentially serious injury.
On appeal, Harvey Norman accepted that there was a risk of injury to Mr Gallagher but contended that this was insufficient to create a duty of care. Harvey Norman also challenged the finding that any breach of duty was causative of Mr Gallagher’s injury, which was caused directly by the reckless driving of Mr Miloradovic.
The Court of Appeal dismissed the appeal in a unanimous decision. The Court found that Harvey Norman did owe its customer a duty of care, as there was a reasonably foreseeable risk of injury in having its customers collect goods from the pick-up area. The Court considered that accidents are a not insignificant risk in most areas where vehicle are moving around, particularly in a relatively confined space.
In addressing breach, the Court held that a reasonable party in Harvey Norman’s position would have directed its staff only to load customers’ vehicles in the pick‑up bay and not in the access way. Had Harvey Norman directed its staff not to load customers’ vehicles in the access way, it is properly to be inferred that the injury to Mr Gallagher would not have occurred.
This case highlights the duty owed by business owners to their customers where there are risks of injury created by moving vehicles or other machinery in common areas. If a business owner regularly uses and has some control over the common area and encourages customers to enter that area, it will be required to devise systems and procedures to protect customers from risks posed in that area, including risks posed by third parties.
Osborne Park Commercial Pty Ltd v Miloradovic  WASCA 17
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