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Harvey Norman can’t shirk its duty of care to an injured customer

February 21, 2019

 

A Harvey Norman franchisee that was found jointly responsible when a truck reversed into a customer has had its appeal of the decision dismissed.

After the truck driver accepted negligence and agreed to pay the injured customer $865,000 in damages and costs, he then commenced third-party proceedings against the franchisee, alleging that it was jointly liable.

Osborne Park Commercial Pty Ltd denied any wrongdoing, contending that the truck driver was solely responsible for the incident that happened in the store’s goods pickup area.

However, the District Court of Western Australia found that the franchisee did have a common law duty of care to the customer and ordered it to contribute 25% of the sum paid to the customer.

“The access way was not akin to a public carpark in a shopping centre, because commercial vehicles of different sizes were loaded and unloaded in the area, sometimes by hand and often by forklift,” the Court said.

“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 access way was an extension of Harvey Norman’s workplace and warehouse operations.”

Following the incident, WorkSafe WA issued the franchisee with an improvement notice as it did not have a traffic management plan for the shared use of the access way.

The Court noted that “a reasonable store owner” would have conducted a risk assessment “before sending its customers into an area where there was a foreseeable risk of injury which was not insignificant.”

If a risk assessment had been conducted, “Harvey Norman would have known that there were no, or no adequate or proper, controls in place and that steps were required to manage the risk to which it was exposing its customers,” the Court said.

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