SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0016

MATTHEW RHYS McLEOD	Applicant	
		
v		
		
MAINFREIGHT DISTRIBUTION PTY LTD
(ACN 003 840 319)	Respondent	

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JUDGES:	BEACH, KAYE and OSBORN JJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	27 August 2021	
DATE OF JUDGMENT:	10 September 2021	
MEDIUM NEUTRAL CITATION:	[2021] VSCA 255	
JUDGMENT APPEALED FROM:	[2020] VCC 2012 (Judge Kings)	

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ACCIDENT COMPENSATION – Workplace injury – Negligence – Worker injured right knee when stepping backwards and tripping over pallet in warehouse workplace – Whether real risk of injury to the applicant was reasonably foreseeable – Characterisation of real risk – Whether trial judge erred in concluding there was no negligence in having a system which placed pallet where it was located at the time of the incident or in parking forklift where it was parked in the vicinity at the time of the incident – Application for leave to appeal granted – Appeal dismissed – Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330, Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183, Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1, Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301, Wyong Shire Council v Shirt (1980) 146 CLR 40 considered.

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APPEARANCES:	Counsel	Solicitors	
			
For the Applicant	Mr P H Solomon QC with
Mr M Hooper	Zaparas Lawyers	
			
For the Respondent	Mr J Ruskin QC with 
Mr R Kumar	Hall & Wilcox	

BEACH JA
KAYE JA
OSBORN JA:
Introduction
1	On 26 September 2014, the applicant suffered injury to his right knee when he stepped backwards and tripped over a loaded pallet at his workplace.  
2	At the time of the incident the applicant was intending to move towards a forklift which had been parked in a truck bay close by and needed to be relocated.  
3	The applicant subsequently commenced an action in negligence in the County Court seeking damages from his employer for personal injury.  
4	On 17 December 2020, her Honour Judge Kings dismissed the applicant’s claim concluding in part that:
•	the positioning of the pallet did not create any particular risk of injury to the applicant; 
•	the real risk of the injury that eventuated was not reasonably foreseeable;  that is, that he would walk backwards and trip over the pallet; 
•	there was no negligence in having a system which placed the pallet where it was located at the time of the incident;  and 
•	there was no negligence in parking the forklift where it was at the time of the incident.  
5	The applicant now seeks leave to appeal on the following proposed grounds.
1	The trial judge erred in concluding that:
(a)	the position of the pallets did not create any particular risk to the applicant [Reasons at [110]];
(b)	the real risk of injury to the applicant that eventuated was not reasonably foreseeable;  that is, he would walk backwards, trip over the pallet when moving toward the forklift, in order to move the forklift [Reasons at [133]].
2	The trial judge should have concluded that the respondent failed to discharge its duty of care —
(a)	by having a system of work where pallets of small items were kept on the ground in a high-traffic area inside the distribution warehouse, when they could easily have been kept elsewhere for checking off, or at least in an area that was delineated from forklift and pedestrian traffic;  and
(b)	by its employee parking the forklift in a marked truck bay, as permitted by the respondent, when it should have been parked out of the way of that bay and the pallets — as the other forklifts were.
6	For the reasons which follow, we are not persuaded that, save for ground 1(b), the proposed grounds of appeal are reasonably arguable.  Further, even if made out, the arguable error identified in proposed ground 1(b) did not vitiate the trial judge’s decision.  
7	In summary, even if it is accepted that the real risk of injury to the applicant was reasonably foreseeable, then as the respondent submits, the trial judge comprehensively determined the further issues between the parties in any event.  
8	More particularly, the trial judge did not err in concluding in respect of the respondent’s response to that risk that:
•	there was no negligence in having a system which placed the pallet where it was located at the time of the incident;  and 
•	there was no negligence in parking the forklift where it was at the time of the incident.  
The hearing of the proceeding
9	At trial, the applicant gave evidence and called an expert engineer, Mr Edward Dohrmann, in support of his case.  The respondent called two of its employees, Mr Brian Aspinall, foreman, and Mr Jason Kennedy, branch manager at the time of the incident.  The respondent also called Dr John Culvenor, an expert engineer.  
10	The applicant also called two witnesses relevant to the question of damages only.  
Background facts
11	At the time of the incident, the applicant was employed as an operations manager by the respondent at a distribution warehouse.  The operation with which he was concerned related to the business of Chemcouriers, a specialist transport division which was conducted within the framework of the respondent’s overall operation from the premises.  
12	The warehouse utilised cyclical receipt and distribution operations.  During the morning shift, freight was received from interstate on trucks and was unloaded.  It was then sorted and reloaded onto other trucks for local distribution.  On the afternoon shift, the process operated in reverse.  Trucks brought in freight from local areas which was received and then reloaded onto other trucks for delivery interstate overnight.  
13	The unloading and loading operations were undertaken by moving freight on pallets with forklifts.  
14	The incident occurred towards the end of the morning shift.  The cyclical operation did not enable all items which were received to be cleared on the day of receipt.  Items that had been unloaded from interstate trucks, but not reloaded upon trucks for local delivery, were referred to as Consignment Note Un-Delivered (‘CNUD’) items.  The CNUD items were stored in order that they could be delivered the next day.  
15	The incident occurred in a staging area within a large open warehouse.  The warehouse was accessible by trucks and the pallets containing CNUD items had been unloaded and placed in the staging area.  
16	Prior to the incident, the applicant’s co-worker, Mr Aspinall, a foreman, had been checking consignment details and barcodes on the CNUD items into a newly introduced record system using an iPad.  This process was a routine operation which enabled the CNUD items to be identified, and in turn, enabled customers to be advised of the whereabouts of the goods in transit.  It also facilitated planning for the next day’s deliveries by a fleet of trucks.  Once checked, the CNUD pallets were transferred to an overnight transit storage area known as the ‘Mainfreight time slot bay’ which accommodated CNUD items from the respondent’s business as a whole and not just from the Chemcouriers business.  
17	Mr Aspinall experienced difficulty with the use of his iPad and called the applicant to the staging area to assist him.  While assisting Mr Aspinall, the applicant became aware of a tug pulling a trailer (‘the truck’) that had entered the warehouse.  It was apparent that in preparation for the afternoon shift the driver of the truck intended to move into a designated parking area marked out by a yellow painted rectangle on the warehouse floor.  Before checking the CNUD items, Mr Aspinall had parked a red forklift in a position which intruded into this marked parking space. 
18	What happened next was recorded by CCTV footage from three cameras and summarised by the trial judge.  
the [applicant] proceeded to the area in the warehouse via a grey forklift.  He drove past the red forklift partially blocking the area designated by a yellow painted rectangle on the warehouse floor and past pallets placed on the warehouse floor to the left of the yellow rectangle.  The [applicant] reversed the grey forklift, parked it nearby and walked to a man he identified as Mr Aspinall, who he talked to about the iPad.  The [applicant] was seen to hold the iPad.  The tug entered the warehouse pulling a trailer, which the [applicant] said was to be parked in the trailer area for the purpose of loading by the PM shift.  The [applicant] was seen to hand the iPad to Mr Aspinall.  The [applicant] was facing Mr Aspinall, was observed to move backwards and fall onto an object which he identified as a pallet.  He sat on the pallet, got up and went to move the red forklift, then was observed to drive away in the grey forklift.
19	The applicant gave evidence that, when he became aware of the truck and the fact that the red forklift was in its path, he commenced to react instinctively in order to move the red forklift.  
20	In so doing he stepped backwards and overlooked a pallet onto which he stumbled backwards suffering injury to his right knee.  
21	The applicant gave evidence that he did not see the pallet and was not aware of its presence at the time he moved towards the forklift.  He agreed that he did not turn around to look where he was going, and did not look down to see what might be behind him on the ground.  He said that he had forgotten about the presence of the pallet.  He said that he was still instructing Mr Aspinall when he moved.  He said the height of the pallet was about 60 centimetres.  He agreed that from where he had parked before joining Mr Aspinall, he had a clear view of the pallet upon which he fell and a clear view of the red forklift.  He did not ask Mr Aspinall to move the red forklift.  
22	The forklift blocking the path of the truck was described by the applicant as giving rise to a matter of urgency.  He gave evidence that having a truck stopped in the sheds was ‘not ideal’ and would cause traffic delays.  The applicant agreed however that the driver had brought the truck to a complete halt before the applicant moved in the direction of the forklift.  He agreed that it was not a chaotic scene.  He agreed that the delay was temporary and that it was a routine scene.  The trial judge found that the applicant ‘was not responding to an emergency situation, nor did he respond in the heat of the moment.’  
23	The applicant gave evidence that a more suitable place to park the red forklift would have been out of the way of traffic.  He agreed that forklifts could be parked in the warehouse, provided they were not parked in pedestrian walkways.  He said it was a common occurrence for forklifts to be parked in trailer bays.  He agreed that he would have told Mr Aspinall to move the red forklift if he thought the parking of the red forklift was unsafe.  
24	Mr Aspinall gave evidence that he parked the forklift where he did because it was where he was working at the time.  As far as he was aware there was no restriction or prohibition on him parking there.  He said he had left his forklift close to where he was working so he could move the pallets after he checked them off.  He said that workers parked forklifts anywhere they wanted to, but not on walkways or in the big doorways where trucks enter and exit.  He agreed that a forklift should not be parked so as to block another forklift or in front of a truck that needed to leave the warehouse, as this would create inefficiency and delay.  
25	Mr Kennedy, a branch manager at the time of the incident, said that the red forklift was parked in an ‘active work zone’.  He said forklifts would park in such areas depending on the volume of pallets.  The forklifts did not have a dedicated parking location.  The position of the red forklift gave Mr Aspinall the ability to get on/off while actively working.  He disagreed that it was clear it was an impediment to operational efficiency where it was parked.  
26	Dr Culvenor gave evidence as to the traffic management issues involved in the system of work which the trial judge summarised as follows:
Dr Culvenor was asked about the system of work in terms of accessing the trailer.  He said the system of work was also suitable for the work of inspecting and checking off the stock in the pallets.  He said the parking of the red forklift in the trailer area is not a breach of any safety principle.  It is in the trailer area temporarily and readily moved.  He noted that the pallets were near each other but not stacked up against one another.  He was of the view that there is no conflict with any guideline or general principle of safe practice.
Dr Culvenor said it was a well organised workplace that had taken on board the criticisms of Engistics.
Dr Culvenor was asked about an exclusion zone.  He said:
An exclusion zone could mean a lot of different things but very commonly in the area in a field involving mobile equipment, it means a space around that equipment or it could mean — well, to give an example, if we have a truck or a forklift it means if you’re a pedestrian don’t go near it when it’s being operated or when it might be operated.  Similarly, if a person is the one driving the forklift or other machine or a truck, don’t approach other people and bring the two things too close together.  So, it’s about not bringing people and equipment too close together.  So it’s a space around equipment where we don’t want people if the vehicle or machine is moving or it might move.
Dr Culvenor said that where at the time of the accident there was no loading or unloading therefore an exclusion zone has no relevance.
In re-examination, after looking at the 16 seconds of film, Dr Culvenor confirmed that there were marked areas for staging.
Dr Culvenor was taken to the Engistics report.  He was asked about exclusion zones in an area of loading and unloading.  He said, in his opinion, it was dynamic;  that is, it moves with the vehicle.
Overall, I accept the opinion of Dr Culvenor.  It reflected the reality of the situation, taking into account the activities of a warehouse which reflected a dynamic process but not a chaotic process;  that the area at the time was uncrowded;  the work seemed well organised;  the traffic management system was good at the time of the incident, and had nothing to do with the cause of the accident.  He described the accident as an example of a person unfortunately misjudging their footing.
27	On the hearing of the application for leave to appeal, the applicant did not place reliance upon the evidence of Mr Dohrmann.
The trial judge’s Reasons
28	In her Reasons, the trial judge recorded that the applicant’s case was based on 10 allegations of negligence.  In summary, it was alleged that the respondent owed the applicant a non-delegable duty to take reasonable care to avoid exposing him to unnecessary risks of injury.  That duty included the provision of a reasonably safe place of work, a reasonably safe system of work, and competent fellow employees.  The applicant relied upon the following particulars of negligence:
(a)	Failing to implement and/or enforce a loading, unloading exclusion zone (‘LUEZ’) within the warehouse;
(b)	Failing to implement and/or enforce LUEZ rules;
(c)	Parking the forklift in an area designated for trucks and trailers;
(d)	Leaving or causing to be left the forklift in an area designated for the loading and unloading of trailers when the [respondent] and/or its employees and agents knew or ought to have known that trailers were to be parked in that area and thereby creating a sudden distraction and resultant danger of injury;
(e)	By requiring, permitting or allowing deposited pallets, pedestrians, forklifts and delivery trucks to be in or move into the same area of floor of the warehouse at the same time, creating a risk of tripping and falling;
(f)	Failing to institute and/or maintain a or any proper system for ensuring forklifts were not parked in trailer bays;
(g)	Failing to institute, implement and/or enforce compliance with a traffic management plan for the floor of the warehouse such that trucks, forklifts, pedestrians and pallets of goods could not converge on the one area at the one time;
(h)	Having pallets on the warehouse floor which were tripping hazards in the vicinity of a designated truck and trailer loading area;
(i)	Failing to have separate and clearly designated areas for forklifts, trucks and trailers, pedestrians, and/or pallets, and/or failing to enforce any such designated areas;  and
(j)	Failing to enforce the [respondent’s] purported policies and procedures on traffic management.  
29	The proposed grounds of appeal pick up particulars (h) and (c) which relate respectively to the manner in which pallets were stored in the vicinity of the incident and the manner in which forklift parking was managed.  
30	After summarising the way in which the parties joined issue with respect to these allegations, the trial judge carefully summarised the evidence in extensive detail.  
31	The trial judge then analysed the evidence and relevantly concluded as follows.  First, it could not be said that the respondent was negligent in having a system requiring the CNUD pallets to be checked in the staging area.  
There was an issue as to whether the CNUD pallets ought to be checked off before they were despatched from the staging area or afterwards.  The [applicant’s] evidence was that it was important to scan them promptly to keep track of them and to prioritise deliveries for the following day.  Both Mr Aspinall and Mr Kennedy said it was normal practice for the CNUDs to be checked off before they were despatched from the staging area, and provided reasons as to why the process was conducted in this manner.  Namely, the nature of the CNUDs, being undelivered freight, the need to update the system, to keep customers informed and the lack of space in the timeslot bay to perform the task.  Both Mr Aspinall and Mr Kennedy said the CNUDs were stored in the Mainfreight timeslot which was a storage bay which did not permit the access required for walking around and bending over the pallets to identify the barcodes and the like.  I accept that based on the evidence of Mr Aspinall and Mr Kennedy, it could not be said that the defendant was negligent in having a system whereby the CNUD pallets were checked in the staging area.
32	Secondly, the manner in which the pallets were positioned did not create a particular risk to the applicant.  
The pallets were uniformly placed on the warehouse floor, enabling Mr Aspinall to access the pallets and to be walk [sic] around and access the bar codes and information to be entered into the iPad.
The [applicant’s] evidence was that as he approached the staging area from the office in the grey forklift he drove past the red forklift, driving around it.  The [applicant] parked the grey forklift along the divide in the warehouse.  The [applicant] conceded that he had a clear view of the pallet he fell on, as he parked the grey forklift.  There was no submission that the area was too crowded or that there was insufficient room to move around the pallets.  Furthermore, the [applicant] conceded he would have done something if he regarded it (the red forklift) as a safety issue.
I accept, on the basis of the evidence, that the position of the pallets did not create any particular risk to the [applicant].  The pallet upon which the [applicant] fell was clearly visible and located with other pallets in an area used for that purpose.  There was no suggestion that there was insufficient room to move between the pallets.
I take the view that the warehouse appears very large, clean and uncluttered. I accept it was ‘sparsely populated’, as described by Dr Culvenor.  
33	Thirdly, the applicant was not injured in circumstances of an emergency.  
The [applicant] was assisting Mr Aspinall when he heard a truck sound its horn as it entered the warehouse, alerting him to the fact that the truck was entering the warehouse and there was something in the way.  The film showed, and the [applicant] conceded, that the tug had come to a complete stop before the [applicant] moved in its general direction.  The [applicant] handed the iPad to Mr Aspinall, before he moved.  In viewing the CCTV clip, the [applicant] did not appear to be rushing.  The [applicant] said he was moving backwards as he was talking to Mr Aspinall.  
34	Fourthly, the real cause of the incident was the applicant’s own actions. 
The real cause of the [applicant]’s trip was walking backwards and a failure on his part to keep a proper lookout.  Dr Culvenor said the [applicant] misjudged his footing.
35	Fifthly, the applicant had a clear view of both the pallet and the red forklift prior to the incident.  
36	Her Honour then directly addressed the particulars of negligence upon which the applicant relied.
(1)	The provision or otherwise of a loading/unloading exclusion zone (‘LUEZ’) within the warehouse had no connection with the occurrence of the applicant’s injury.  A LUEZ is only engaged when the process of truck loading/unloading is actually taking place.  A LUEZ is designed to reduce the risk of injury to pedestrians from moving forklifts and/or from freight falling off trucks in the process of actual loading/unloading.
(2)	There were a number of allegations of negligence which were not made out on the evidence and had no ‘causative connection’ with the applicant’s injury.  These included:
(i)	parking the forklift in an area designated for trucks and trailers, leaving the forklift in an area designated for loading and unloading of trailers when the [respondent] or its employees and agent knew that trailers were to be parking in the area thereby creating a sudden distraction and resultant danger of injury;
(ii)	permitting or allowing deposited pallets, pedestrians, forklifts and delivery trucks to be in or move into the same area of the warehouse at the same time, thereby creating a risk of tripping;
(iii)	failing to institute and/or maintain any proper system for ensuring forklifts were not parked in trailer bays;
(iv)	failing to institute, implement and/or enforce compliance with a traffic management plan for the floor of the warehouse such that trucks, forklifts, pedestrians and pallets of goods could converge on the one area at the one time;
(v)	having pallets on the warehouse floor which were tripping hazards in the vicinity of a designated truck and trailer loading area;
(vi)	failing to have separate and clearly designated areas for forklifts trucks and trailers and/or failing to enforce such designated areas;  and
(vii)	failing to enforce the [respondent’s] purported policies and procedures on traffic management.
(3)	The incident was caused by the manner in which the applicant moved backwards and this movement was not responsive to an emergency.  
Based on the evidence, I accept that the [applicant] was injured when he tripped over a pallet and was not keeping a proper lookout.  He was walking backwards and failed to turn around and look where he was going.  This is not something that the [respondent] could reasonably guard against.  The [applicant] was aware the tug was approaching the trailer bay from the time the tug entered the warehouse and sounded its horn.  The tug was driven by a team member and was not moving quickly.  The [applicant] was not responding to an emergency situation, nor did he respond in the heat of the moment.  The film demonstrates that the tug had come to a complete stop before the [applicant] moved in the general direction.  The [applicant] returned the iPad to Mr Aspinall, before he moved backwards.  H[e] was still talking to Mr Aspinall as he moved backwards.  He did not appear to be rushing.  The evidence was that the arrival of the tug and trailer was expected in preparation for the start of the PM shift.  Mr Kennedy’s evidence was that it was one of the quietest times of the day.
37	The real cause of the applicant’s injury was the combination of walking backwards and failing to keep a proper lookout.  
I accept, based on the evidence of the [applicant], Mr Aspinall and Dr Culvenor, the cause of the incident does not have anything to do with loading/unloading procedures nor does it involve plant (such as forklifts, tugs, trucks, trailers) and a pedestrian, such as the [applicant].  Adopting the common-sense test of causation in March v E & MH Stramare, the real cause of the [applicant’s] trip was as a result of walking backwards and failing to keep any proper lookout.  Further, the [applicant] was a long-standing employee, the operations manager, and experienced worker.  
38	Her Honour accepted the respondent owed a general duty of care to the applicant as its employee to take reasonable steps to protect the applicant from the foreseeable risk of injury but she was not persuaded that the applicant had demonstrated with reasonable precision the risk of injury which was alleged should have been foreseen by the respondent and guarded against.  
39	Her Honour cited the observations of Deane J in Stevens v Brodribb Sawmilling Company Pty Ltd: 
Where a duty of care exists under the common law of negligence, it requires the taking of reasonable care to avoid a reasonably foreseeable and real risk of injury.  That being so a relevant duty of care will have existed in a particular case only if there was some reasonable foreseeability of a real risk of that injury of the kind sustained would be sustained by a member or members of a class which included the particular plaintiff.  
40	Her Honour then expressed the conclusions both that the applicant had failed to establish breach of a relevant duty of care and that a series of bases on which the applicant put his case should be rejected:
The real risk of injury to the [applicant] that eventuated was not reasonably foreseeable;  that is, he would walk backwards, trip over the pallet when moving toward the forklift, in order to move the forklift.  There was no breach of duty because there was nothing that a reasonable employer in the position of the [respondent] could have done to prevent the risk of injury other than to advise him to look where he was walking.
I accept it was not negligent to check the CNUDs in the staging area before transferring them to the Mainfreight timeslot and/or the CNUD bay.  I accept the evidence that it was more appropriate to check the CNUDs in the staging area as it allowed the staff to move around the pallets.  It was common commercial sense and accepted practice.
I accept that it was not negligent for Mr Aspinall to park his forklift where he did;  it was an active work zone used by all forklifts as required.  The only requirement was for him to move the forklift, if necessary.  This would be a minor inconvenience but does not constitute negligence.
I accept that the parking of the forklift was not the cause of the [applicant’s] injury.  Relying on the dicta of McHugh J in March v Stramare, the parking of the forklift was an incident which precedes the history or narrative of the events and is to be ignored for the purpose of legal liability.
Further, any alleged breach of duty, for example failure to have exclusion zones around the truck parking bay, is not causally related to the injuries the [applicant] suffered, nor was it the cause of his injuries suffered, as there was no loading or unloading.  The real cause of his injuries was his own, admitted, act of negligence, in walking backwards and in not keeping a proper lookout.
Accordingly, I accept the [applicant] has not established liability against the [respondent] with respect to negligence.  Accordingly, the issue of contributory negligence does not arise for my consideration and I do not consider the [applicant’s] claim for damages.  I will dismiss the [applicant’s] claim.
41	It can be seen that her Honour first concluded that the real risk of injury in the present case was not reasonably foreseeable, but then went on to specifically address the question of response to that risk including the different ways in which it was alleged the respondent’s system of work involved negligence.  
Legal principles
42	The general duty of care owed by the respondent to the applicant as its employee is well established.  It was elaborated by the High Court in Czatyrko v Edith Cowan University:
An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.  If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.  The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.
43	It can be seen that the employer’s duty extends to taking reasonable care to avoid exposing the employee to injury as a result of inadvertence.  In McLean v Tedman, the plurality of the High Court set out the obligation as follows:
The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. …  The employer is not exempt from the application of this standard vis-á-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system.  The employer’s obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence.  There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety.  In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury.  In accordance with well settled principle the employer is bound to take care to avoid such a risk.
44	The duty of care falls to be discharged by the exercise of reasonable care.  In order to assess the scope of the obligation to exercise reasonable care it is necessary to accurately identify the actual risk of reasonably foreseeable injury faced by the applicant.  As Gummow J observed in Roads and Traffic Authority of NSW v Dederer, it is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be.  The mischaracterisation of the relevant risk in that case was apt to distract from a proper evaluation of the probability of the risk occurring and to an attribution to the defendant of a greater control over the risk than it in fact possessed.  
45	While the characterisation of the risk must necessarily take into account the harm that occurred in the particular case, and the circumstances in which the harm occurred, nevertheless it is not confined to the specific combination of circumstances in which the plaintiff sustained his or her injury.  
46	In Coles Supermarkets Australia Pty Ltd v Bridge, the New South Wales Court of Appeal observed:
What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury (as noted in Dederer at [60]) or because it too narrowly focusses on the particular hazard which caused the injury (as noted in Port Macquarie Hastings Council v Mooney), or because it fails to capture part of the plaintiff’s case (as in Garzo).  
47	In Perisher Blue Pty Ltd v Nair-Smith, the New South Wales Court of Appeal observed:
In essence, the enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for harm for which the plaintiff seeks damages.
48	Once the Court determines that a relevant risk of injury was reasonably foreseeable by a person in a defendant’s position, the Court must consider the scope and content of the duty of care owed in respect of that risk.  In Wyong Shire Council v Shirt, Mason J stated the relevant principle as follows:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk.  A risk which is not far-fetched or fanciful is real and therefore foreseeable.  But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty.  The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
49	The enquiry as to whether a defendant has breached a relevant duty of care is prospective.  The Court must determine what response would have been made by a reasonable person looking forward at the prospect of the risk of the particular injury that occurred.  Further, as the Court observed in Southern Colour (Vic) Pty Ltd v Parr:
… it is well recognised that a court may, and indeed should, rely on common sense and common knowledge in determining whether a particular risk is foreseeable, and in determining the reasonable and appropriate precautions which a defendant should have taken to avert such a risk.
The proposed grounds of appeal
50	The applicant submits that the trial judge’s formulation of the relevant risk of injury was too narrow.  It is submitted that placement of a pallet upon the ground within the relevant area of the workplace created a reasonably foreseeable risk that workers might suffer injury by tripping over it.  
51	It is further submitted that such a risk of harm was not farfetched or fanciful and that it extended to the risk that the pallet might cause harm to inadvertent or negligent workers.  
52	It is further submitted that the trial judge should not have confined her characterisation of the relevant risk by narrowing it to the risk of employees ‘walking backwards’ and failing to keep a proper lookout.  
53	As we understand it, this submission accepts the trial judge’s findings that the workspace was spacious and open, and the pallets were arranged in an orderly manner and that access to and around them was not chaotic, cramped or otherwise inadequate.  
54	Insofar as the proposition that the relevant risk of injury was reasonably foreseeable, we note the following:
•	the placing of pallets upon the floor was an obvious incident of the forklift system adopted to unload and reload pallets within the warehouse;  
•	save for pallets and forklifts, the warehouse floor was open and clear in the area in question; 
•	the pallets were the focus of the whole warehouse operation and the applicant’s actions; 
•	the potential location of each pallet within the relevant area was well-known by the workforce including the applicant;
•	the actual location of the pallet on which the applicant tripped was patent and in fact observed by the applicant shortly prior to the incident; 
•	the load on the pallet was some 60 centimetres high and constituted a substantial object obviously visible to any person walking in its vicinity. 
55	In these circumstances, it is not surprising that the trial judge concluded as she did with respect to foreseeable risk.  Nonetheless we accept that it is arguable that although very remote, there was some reasonably foreseeable risk that a worker might fail to keep a proper lookout and inadvertently step backwards while moving around the pallets and consequently suffer injury.  
56	We do not however accept the applicant’s further submission that the real risk of injury should be generalised to include the general risk that a worker might trip over a pallet in this area.  The trial judge expressed the relevant risk with a specificity which responded directly to the incident which occurred.  Moreover, in any event, nothing turns upon this distinction for the reasons which follow.  
57	The fundamental difficulty confronting the applicant is that the trial judge did not stop at the point of her conclusion with respect to reasonably foreseeable risk.  She went on to deal with each of the bases on which the applicant had alleged a breach of duty of care by way of response to that risk.  In so doing, she responded to each of the particulars of negligence alleging inadequacy in the system of work and gave comprehensive reasons for rejecting them.  Moreover, the way in which her Honour formulated the real risk of injury did not distort her assessment of the particulars of negligence relied on.  
58	Accordingly, it is unnecessary to finally resolve the question of whether the real risk which her Honour identified was reasonably foreseeable.  Even if it is so regarded, the applicant must fail.  
59	On the application for leave to appeal, the applicant seeks to agitate two matters as alleged breaches of the respondent’s duty of care.  The first is the proposition articulated in proposed ground of appeal 2(a) that the respondent breached its duty of care ‘by having a system of work where pallets and small items were kept on the ground in a high traffic area inside the distribution warehouse, when they could easily have been kept elsewhere for checking off or at least in an area that was delineated from the forklifts and pedestrian traffic.’  
60	This submission fails on a series of levels:
(1)	A pallet containing a load 60 centimetres high is not a small item.  Its presence on the floor was obvious to anyone who looked and had been noticed by the applicant prior to the incident.  
(2)	The evidence does not support the view that the area in which the pallets were stored was a ‘high traffic area’ at the time of the incident.  Rather, it was a quiet area in which the applicant and Mr Aspinall were able to freely walk around and inspect the loads on the CNUD pallets.  
(3)	The process of checking the CNUD items in the storage area within the warehouse which adjoined the point at which they were unloaded had a clear and reasonable operational rationale, namely early identification by checking of the CNUD items enabling customers to be advised of their location in transit (following the failure to continue delivery that morning) and enabling detailed plans of truck deliveries to be undertaken for the next day.  
(4)	There was no evidence that the CNUD items could ‘easily have been kept elsewhere for checking off’.  It was suggested in the course of the applicant’s case at trial that the CNUD items might have been checked off in the Mainfreight time slot bay, but the evidence as a whole established that this area was too crowded for the checking operation to be undertaken safely and satisfactorily.  In turn, the proposition now advanced was not put forward in the applicant’s submissions at trial and should not now be entertained.  
(5)	The checking of the CNUD pallets required orderly pedestrian access.  No other pedestrians were in the vicinity at the time of the happening of the incident other than the two men involved in checking the CNUD pallets.  
(6)	Forklift traffic was irrelevant to the happening of the incident.  
(7)	The position in which the pallets were located created no particular risk of injury of the type in issue.  If the pallets were relocated elsewhere on the floor of the open warehouse and laid out in the same way in order to facilitate checking then the same remote risk that the applicant would step backwards without looking would have arisen.  
61	No error has been demonstrated in her Honour’s conclusion that it was not negligent to check CNUD items in the storage area before transferring them to the Mainfreight time slot bay.  The same conclusion follows whether or not the real risk of injury in respect of which a response of reasonable care was required is expressed to include the general risk of inadvertent tripping over a pallet within the area involved in this case.  
62	The applicant next submits in terms of proposed ground 2(b) that the respondent breached its duty of care by its employee parking the forklift in a marked truck bay, as permitted by the respondent, when it should have been parked out of the way of that bay and the pallets — as other forklifts were.  This is the second of the two matters the applicant seeks to agitate on the application for leave to appeal.  
63	This allegation relates to the parking of the red forklift by Mr Aspinall adjacent to the storage bay but intruding into the marked truck bay. 
64	The trial judge accepted that the red forklift was parked within an active working area and that Mr Aspinall remained close to it (as shown by the video recordings of the incident).  
65	There was nothing unreasonable in parking the red forklift in a position where it may have been required to have been moved if a truck needed to use the marked parking space.  
66	Her Honour’s conclusions accorded with the evidence and the weight of the evidence.  These conclusions reflect concessions made in cross-examination by the applicant and the evidence of Mr Aspinall, Mr Kennedy and Dr Culvenor to which we have referred.  
67	In the course of argument in this Court, the applicant submitted that the red forklift ‘contextualised’ a confined space.
It was a failing in the system that there was contextualised confined space, but it’s not a separate risk of injury;  the forklift wasn’t a foreseeable risk of injury;  the injury wasn’t … I wish to be clear that the focus of our case is and must be on the pallet.  
68	This characterisation involves an implicit concession that this ground cannot stand on its own.  
69	There is nothing in this point.  There was nothing unreasonable in parking the red forklift in a temporary position within the active working area.  Nor did the fact that the red forklift was parked where it was cause an emergency or other inadequacy in the system of work.  
70	The same conclusion again follows whether or not a real risk of injury in respect of which a response of reasonable care was required is expressed to include the general risk of inadvertent tripping over a pallet within the area involved in this case.  
Conclusion
71	We would grant leave to appeal but dismiss the appeal.  
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