WA facility owner fails to evade duty of care

Traffic management plan issue for mixed pick-up and delivery area highlighted

WA facility owner fails to evade duty of care
The District Court of Western Australia


Another large brick has been reinforced in the legal wall built to protect people at risk in facility loading areas.

The District Court of Western Australia has declined an appeal by Osborne Park Commercial Pty Ltd, trading as Harvey Norman Commercial Osborne Park, over a 2015 incident where the driver of a semi-trailer backed into a customer waiting for goods to be loaded into his car in a warehouse access way.

The firm, described as "Harvey Norman" in the judgement but "Osborne Park Pty Ltd" in the case name, was a franchisee of Harvey Norman Holdings (HNH).

The judgement in the case, Miloradovic v Osborne Park Pty Ltd, is salient to all large retail operations where commercial vehicle loading and unloading mixes with facility customer pick-up functions.

Read about the release of the Industry Master Code of Practice for heavy vehicles, here

The truck driver had already accepted negligence and agreed to pay $865,000 as damages and costs for personal injuries and then claimed a contribution to the judgment sum from Harvey Norman.

Harvey Norman argued the incident was entirely the truck driver’s fault but lost the case to the tune of 25 per cent of the sum, hence the appeal.

The area involved was used by customers and commercial vehicles alike and noise there could make it difficult to hear the approach of vehicles.

 "The limited size of the access way, the fact that trucks parked in it to unload, and the existence of other traffic including forklift movements and cars accessing and using parking bays, combined to indicate that persons using the access way were entering a 'working area', and should have been alerted to obvious safety risks," the appeal judgment states aby way of background.

The court notes WorkSafe WA issued Harvey Norman with an improvement notice by on the basis that Harvey Norman did not have a traffic management plan for the common use of the access way.

An HNH occupational health and safety (OHS) traffic management plan was subsequently located but the original judge found Harvey Norman failed to implement a litany of risk identification and safety procedures for the loading area.

The OHS traffic management plan highlighted the risks that needed to be addressed to avoid accidents of the sort that led to this case.


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