DISTRICT COURT OF QUEENSLAND
CITATION:
PARTIES:
NEVILLE JAMES DAY (Plaintiff)
v.
R.J. BROOKS AND SONS t/a BROOKS TRANSPORT (Defendant)
And
FRANKLINS LIMITED (Third Party)
FILE NO/S:
1509 of 1999
DIVISION:
PROCEEDING:
Third Party Proceeding
ORIGINATING COURT:
District Court Brisbane
DELIVERED ON:
7 March 2002
DELIVERED AT:
Brisbane
HEARING DATE:
1 and 2 November 2001
JUDGE:
Shanahan DCJ
ORDER:
The third party is to pay the defendant the sum of $91,088.04, together with the defendant’s costs in the action brought by the plaintiff
CATCHWORDS:
Broadhurst v. Millman [1976] VR 208
Finn v. The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd.R. 29
Florida Hotels Pty Ltd v. Mayo (1965) 113 CLR 588
Oxley County Council v. Macdonald & Ors [1999] NSWCA 126
Pennington v. Norris (1956) 96 CLR 10
Podrebersek v. Australian Iron and Steel Pty Limited (1985) 59 ALJR 492
Redken Laboratories (Aust) Pty Limited v. Docker and Anor [2000] NSWCA 100
Stapley v. Gypsum Mines Ltd [1953] AC 663
Wylie v. ANI Corporation Ltd
COUNSEL:
Mr. R Morton for the defendant
Mr. S. Keim for the third partySOLICITORS:
O’Shea, Corser and Wadley for the defendant
McInnes Wilson for the third party
This matter concerns the determination of third party proceedings between the defendant and Franklins Limited. The plaintiff was employed as a truck driver by the defendant. On 14 April 1997 the plaintiff suffered an injury to his knee while delivering goods to a store operated by the third party. The plaintiff sued the defendant as his employer. The defendant issued third party proceedings against Franklins.
The action between the plaintiff and the defendant settled for $91,088.04, including the WorkCover refund. The third party has acknowledged that the settlement was a reasonable assessment of the plaintiff’s claim and that it would not contend at the trial of the third party proceedings that the plaintiff would have failed against the defendant (Exhibit 1).
The defendant had an agreement with the third party that the defendant would transport goods from the third party’s warehouse at Richlands to various Franklins’ stores. In order to do that, the defendant supplied trucks and drivers. The third party would load the trucks with pallets overnight at its Richlands warehouse by use of electric or motorised pallet jacks. On 14 April 1997, the plaintiff arrived at the warehouse where his truck was already loaded with the rear doors closed. He drove the truck to the Kallangur Franklins store. The arrangement between the defendant and Franklins was that the defendant’s drivers would assist in the unloading of the truck at the Franklins’ stores. The unloading was with equipment supplied by the third party at a loading dock of the Franklins store. At the Kallangur store, a manual trolley jack was supplied. While attempting to move the first pallet with that jack, the plaintiff suffered an injury to his left knee.
The third party notice alleges that it was the duty…
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- Case
- [2002] QDC 71
- Decision Date
CaseChat Overview and Summary
The court examined the plaintiff's credibility and the details of the accident, taking into account the varying accounts provided to different doctors and the lack of mention of the pallet jack wheels being hard up against the edge of the bridging plate in the plaintiff's initial statements. The court also considered the expert evidence provided regarding the forces required to move the pallet. Ultimately, the court found the plaintiff's account to be credible and consistent, and accepted Dr. Olsen's opinion that excessive force would have been required to move the pallet under the circumstances described.
The court determined that the plaintiff's use of 80% of his strength to move the pallet constituted excessive force, and thus the defendant had breached its duty of care towards the plaintiff. As a result, the third party was ordered to pay the defendant the sum of $91,088.04, together with the defendant's costs in the action brought by the plaintiff.
Orders
Orders of the court
The third party is to pay the defendant the sum of $91,088.04, together with the defendant’s costs in the action brought by the plaintiff
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In Finn v. The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd.R. 29, where a similar issue arose, Thomas J (with whom McPherson JA and Williams J agreed) said at p.29: I am of the view that there was nothing here which should have put the defendant on special inquiry. In the absence of that, there was no obligation on the defendant to have the plaintiff medically examined, and no breach of duty in that regard. The third party submits that the plaintiff was unconvincing as a witness. The further and better particulars (Exhibit 5), the notice of claim for damages (Exhibit 4), and the supplementary notice of claim for damages (Exhibit 3), all made no mention of the wheels of the pallet jack being hard up against the edge of the bridging plate. The accounts of the accident given to the various doctors also varied in detail as to how the accident occurred. It was submitted that the court would not be satisfied of the details of the plaintiff’s evidence in matters such as what was loaded on the pallet and whether he had to use 80% of his strength. It was submitted that it was much more likely that only moderate forces were involved, based on the pre-existing weakness of the knee, the history given by the plaintiff to the doctors that only a “slight twist” was involved, and the lack of any complaint by the plaintiff to his employers that the wheels of the pallet jack were up against the bevelled edge of the bridging plate on an ongoing basis. I found that the plaintiff gave his evidence in a straightforward and consistent manner. He was a credible witness. There was no reason for the plaintiff to exaggerate the way in which the accident occurred: his action had settled in his favour. There was no evidence other than the plaintiff’s as to the stacking of another pallet on top of the fully laden pallet he had to first move, or as to the practice of loading the heavier pallets to the back of the truck. There was no evidence other than the plaintiff’s that the truck was fully laden with 12 pallets on the floor of the truck, necessitating little room for the bridging plate to rest on the floor of the truck. The plaintiff was adamant that it was a combination of the weight of the pallet, the pallet resting against the side of the truck and the wheels of the pallet jack resting against the bevelled edge of the bridging plate which caused him difficulty in getting the pallet to move. I accept that the plaintiff needed to use 80% of his strength to move the pallet in those circumstances. I also accept that the pallet was a heavy one with another one third pallet loaded on top of it, that it rested against the side of the truck and that the wheels of the jack were resting against the bevelled edge of the bridging plate. There is nothing in the case which causes me to doubt the veracity of the plaintiff’s account. As noted above, I found the expert evidence as to the forces required to be of little assistance. I am however of the view that Dr. Olsen’s opinion as to excessive force being required to move a pallet which was against the side of a truck together with the pallet jack wheels resting against the bevelled edge of the bridging plate, should be accepted. It is consistent with common sense when one considers the size of the wheels of the pallet jack and the load that needed to be moved. I am of the view that the plaintiff’s using 80% of his strength in the circumstances constituted excessive force.