Reynolds v Alomes

[1991] TASSC 95

88/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Reynolds v Alomes [1991] TASSC 95; A88/1991

PARTIES:  REYNOLDS
  v
  ALOMES
  MOTOR ACCIDENTS INSURANCE BOARD

FILE NO/S:  355/1987
DELIVERED ON:  24 October 1991
JUDGMENT OF:  Crawford J

Judgment Number:  A88/1991
Number of paragraphs:  28

Serial No 88/1991
List "A"
File No 355/1987

REASONS FOR JUDGMENT  

1. On the day of the accident, 13 October 1986, the plaintiff was the Launceston manager of Reynolds Truck Centre. He was present at the workshop of the business on the East Tamar Highway at Rocherlea. He was generally managing, supervising and assisting with repair work. The business had run out of argoshield gas used for welding operations and a fresh cylinder had been ordered for delivery to the premises.

1. The defendant was a self–employed truck driver for Commonwealth Industrial Gases Limited ("CIG"). His work involved delivering gas cylinders around the Launceston area. He had owned the truck since 18 April 1985. It complied with CIG's specifications. Prior to April 1985 it had been owned by CIG and was driven by him. He was an employee of CIG from 1961 to 1985 and thereafter self–employed. From 1961 to 1972 he was employed delivering gas cylinders. From 1972 to 1985 he was employed tanker–driving and delivering cylinders. He said he had unloaded an average of 10–12 cylinders, in the way he did on the day of the accident, virtually every working day for 31 years, which I suppose means that he had unloaded cylinders in that way over 50,000 times.

1. The truck had a flat tray with sides erected. It was designed so that gas cylinders could be transported upright. He usually unloaded them, as he did with the cylinder in question on the day of the accident, by manually lowering them off the rear of the tray onto the ground. The truck was fitted with a tail gate lifter, an independent floor section at the rear of the tray which could be hydraulically lowered so that the floor descended to about 6 inches from the ground. But he only used the tail gate lifter to unload very heavy items such as a dozen cylinders at a time or a heavy cylinder of freon gas weighing about 75 kilograms. The cylinder of argoshield gas being delivered by him on the day of the accident weighed 40–45 kilograms and he never used the tail gate lifter to unload one such cylinder. He found it quicker and easier to do it manually. There was no risk of fire or explosion by unloading in that way.

1. The tray of the truck was about 3 feet above the ground. The cylinder was about 5 feet 3 inches high, or perhaps slightly higher. Its diameter was about 9 or 10 inches. Fitted to the top was a valve.

1. The defendant drove up to the workshop of Reynolds Truck Centre. The workshop itself had a concrete floor. The entrance had a 10 metre wide roller door which was open. The defendant reversed the truck up to the entrance, stopping about 2 metres from it. The surface of the ground at that point was crushed metal and had a slope. I find that the plaintiff was inside the workshop and about 20–25 metres away from the truck when it arrived, and that when he subsequently approached the rear of the truck he did so from inside and more or less from directly behind the truck, rather than from the side as thought by the defendant. I found no reason to doubt the plaintiff in this regard and think that the defendant was mistaken. He saw little of the plaintiff prior to the accident.

1. The defendant had not been to the premises before. He looked into the workshop and saw some people walking around, but no one appeared to respond to his presence, so he decided to proceed to unload the cylinder. He got out of the cabin, walked to the rear of the tray, lowered the tail gate flap and climbed up onto the tray. He thereafter proceeded to unload the cylinder in his usual way.

1. He undid a security chain and moved the cylinder to the rear of the tray by rolling it on the edge of its circular base, with the cylinder upright but slightly off the perpendicular. His right hand held the valve on the top and his left hand was about two thirds of the way up the cylinder. He then caused the base of the cylinder to go over the edge of the rear of the tray and at the same time inclined the cylinder back towards him and the front of the truck, so that some of the weight of the cylinder was taken by the edge of the tray which acted in a sense like a fulcrum. By this stage both of his hands had hold of it by the valve at the top. He proceeded to slide the cylinder down and over the edge of the tray. He had some of the weight and the edge did also. There came a point in time when he had to take most of the weight. He stepped forward (towards the rear of the tray) and the cylinder came closer to the perpendicular as it continued to slide over the edge. He continued to hold the valve with both hands, taking only a little of the weight as the cylinder dropped towards the ground under the pull of gravity, landing on this occasion on the plaintiff's left foot causing an injury.

1. If the plaintiff had not put himself in the position he was in at the critical moment, there was no danger to anyone in the method being employed by the defendant. There was no risk of explosion if the cylinder landed heavily on the ground. Once it was on the ground the defendant intended to climb down and move it into the workshop.

1. The plaintiff first noticed the defendant on the rear of the tray getting ready to unload the cylinder. The defendant did not appear to be having any difficulty but the plaintiff thought that the cylinder was heavy and that the defendant might need a hand. The plaintiff was not familiar with the method of unloading being used. He erroneously thought that the method was unsafe, involving a heavy cylinder of inflammable gas, and that his help was desirable. So he commenced to walk a distance of about 20–25 metres to the rear of the truck. As he did so the defendant had the bottom of the cylinder resting on the rear of the tray near the edge, holding it at an angle off the perpendicular and about to cause it to drop over the edge. As the plaintiff approached it occurred to him that the ground was not sufficiently level for the cylinder to stand on it without support and that it would need support once on the ground. This may well have been correct, but the defendant was capable of providing whatever support was needed without the plaintiff's assistance.

1. It probably took the plaintiff about 10 seconds to walk to the rear of the truck. His evidence was that when he was about 5 metres away from the defendant he said words to the effect "would you like a hand" or "I'll give you a hand". This evidence conflicted with an answer given by him to an interrogatory in which he was asked: "Shortly prior to the accident did the Plaintiff say anything to the Defendant as to the unloading of the gas cylinder?" His answer was: "I'm not able to recall anything that was said". The defendant's evidence was that he heard nothing. I am not satisfied that anything was said. If it was, I find that it was not sufficiently loud for the defendant to hear and take note. The plaintiff conceded that the defendant appeared to be busy at his task and did not show any acknowledgement that he had heard him speak.

1. As he walked up to the rear of the truck, where the cylinder was being unloaded, the plaintiff raised his hands in front of him to about chest height. It was his intention to take hold of each side of the cylinder as it descended towards the ground, for the purpose of providing lateral support. At that stage he intended to guide it to the ground rather than to take its weight. It is likely that earlier he had it in his mind to do something by way of taking some of the weight, but by the time he had almost reached it, the cylinder was well on its way and it was too late for him to do anything more than attempt to place his hands on it to guide its fall. He said that he did not in fact have time to put his hands on it, however. As he reached the cylinder he stepped with his left foot immediately underneath the cylinder's path of fall and it landed on his foot. He claimed that he was still in the course of walking when that occurred. I accept this but infer that it was his last stride before stopping which put his foot in danger, for he could not have walked any further.

1. The defendant's evidence was slightly different. He said that the plaintiff's hands did, in fact, come into contact with the cylinder. He referred to the plaintiff grabbing it and to him telling the plaintiff to let it go. If he did say that, which the plaintiff disputed, it was then too late in any event for the plaintiff to react effectively in any way. In the course of his cross–examination I was left doubting that the defendant was confident that the plaintiff did, in fact, touch the cylinder with his hands. In any event I have no doubt that they went very close to touching it.

1. Because of the defendant's concentration on the job in hand he had not observed the plaintiff walking towards him through the workshop. I accept his evidence that he first saw the approaching plaintiff, who he described as moving very fast towards him, when he was 3 or 4 feet away from the cylinder. He estimated that the cylinder was then 12–18 inches off the ground and he was then looking straight down to the ground below him. He referred to the cylinder moving down to the ground and seeing "a vision of a body" coming towards him and the arms coming out to touch the cylinder. He maintained that he said "let it go" and the full weight of the cylinder took over and it completed its fall to the ground. He thought that when the plaintiff grabbed it, the distance from the ground was 12 inches or less. At a height of about 6–8 inches he had the full weight, he said. At no time did he let go of the cylinder but it is clear that he had very little of its weight when it hit the plaintiff's foot. He said that once the full weight came, the cylinder would go straight to the ground and the plaintiff's hands had come up just before that occurred. He realized that the plaintiff was going to try and help.

1. The plaintiff's evidence was to the effect that when he reached the cylinder it was still two feet or even perhaps 3 feet off the ground. He had the impression of it being dropped from a height. I cannot make a precise finding of the height of the base of the cylinder from the ground at the moment the plaintiff got to it. But the base was certainly off the edge of the tray and in the course of falling to the ground, its weight being partly taken by the defendant as it did so. A critical question is whether the defendant had time to arrest the fall once he knew or ought to have known that the plaintiff was going to involve himself in the unloading process.

1. An important passage of the defendant's cross–examination was as follows:

"QDid you ever lose control of it?

ANo, never, I don't lose control cause, I mean, the right height. I've got full control of the cylinder. I haven't actually, I haven't lost one yet, uncontrolled.

QYou could have stopped the cylinder before it hit the ground, couldn't you?

AYes, yes, if I wanted to, but it would have been a very hard strain on me.

His Honour: It would have been what?

AIt would have been a strain on me if I'd had to pull up real sudden.

QWell, why did you not stop the cylinder from reaching the ground once you knew that Mr. Reynolds' foot was in the vicinity of where it was going to land?

ABut, I didn't know where his foot was.

QWell you said you knew.

..............

AYes, well it was close. I didn't know where his foot was.

..............

QBut you still knew that his foot was very close to

AOh yes, it must have been reasonably close, yeah.

QFrom the time that you first saw Mr. Reynolds coming towards you, to the point where you believe his hands touched the cylinder, did you say anything to him?

ANo, oh yes, 'let it go', the cylinder.

QAt the point where his hands were touching?

AYes I said 'let it go'.

QDid you say anything before that?

ANo, I didn't say nothing before that.

His Honour: So you said 'let it go', when his hands were touching it?

AYes, when his hands touched the cylinder, I knew he was gonna try to take the weight of it and I said 'let it go', because I knew he couldn't, wouldn't be able to hold it.

QYou didn't say to him before that 'stay away, I'm right'?

ANo. No. I didn't no.

QWhy not?

AOh well, he sorta come into vision quick and I seen the vision of the man, or the body, the legs sorta come towards me as I was lowering it to the ground and the next thing I seen the hands go on it and I never had time to say, 'stay away'. I just said 'let it go' because I knew if he come any closer, it probably would have been on his foot. I thought you know, his foot .... it was close, that's when you get injured, when you get too close by lowering the cylinder like that.

QBut you still didn't see any need to say to him 'stay away, I've got it, I'm right'.

AYes well, I just said 'let it go', I knew I had it right and it was heading to the ground and I just let it go, but my first reaction was me words, was I said just, 'let it go', 'cos the cylinders, he had hold of the cylinder and that's just my reaction, ...sort of thing, at the moment, at the time. Yes I could'a said 'stay away' but he was too close, he was too close to say 'stay away'. I just said 'let it go'.

QHow far was the cylinder off the ground when you said, 'let it go'?

A8, 8, about 12 to 8 inches. I had the full strength of it then, when it was on the move. It was on the move to the ground when his hands took hold of it."

1. The defendant agreed that sometimes people would come to him for the purpose of assisting. A lot of them would come towards him but not necessarily give him a hand and, in fact, if people offered to give him a hand he would usually do it on his own.

1. The passage of cross–examination I have cited reveals that the defendant could have stopped the descent of the cylinder before it hit the ground if he had chosen to do so and if, of course, the decision to do so was made in time. Realizing that the plaintiff was in the course of taking hold of the cylinder he made no attempt to halt the fall. I am satisfied that at the time he could have stopped the fall. Instead he chose only to call out and to allow the cylinder to continue dropping. He was aware that with the plaintiff so close the cylinder might land on his foot if his foot got in the way.

1. As long as other people kept away from a point immediately below where the cylinder was being unloaded there was no risk of injury or damage in the method of unloading. There was no negligence on the part of the defendant in choosing to unload in the way he was.

1. Concentrating as he was on what he was doing, which was quite proper, I am not persuaded that the defendant was negligent in failing to notice the approach of the plaintiff at a time earlier than he did. However, after he in fact realized that a person was approaching him with the intention of taking hold of the cylinder, or becoming involved in the unloading process, he ought to have realized the possibility that that person might put himself in such a position that the falling cylinder would land on one of his feet or hit him in the lower part of one of his legs, and he should have arrested the fall of the cylinder to protect the other person. By failing to arrest the fall he was, in my view, negligent. I do not disregard that to have done what I consider he should have done would have imposed some strain upon himself. But in the circumstance of the risk that had become apparent to him, and ought to have become apparent to him, it was his duty to avoid the risk, notwithstanding this might have imposed some strain upon himself. Accordingly, I find negligence against the defendant.

1. However, the plaintiff should bear a far greater share of the responsibility for his injury than the defendant. He intervened unnecessarily. Believing that the cylinder was heavy he walked quickly up to the defendant, who was engrossed in what he was doing, and stepped with his left foot immediately below the falling cylinder. He did not have time to grasp the cylinder for it was on its way to the ground when he arrived. Yet he put the only part of his body which could possibly have been injured in the only place where it could be injured. I find that it is just and equitable that the damages recoverable by him should be reduced by 75 per cent, having regard to his share in the responsibility.

1. I am not persuaded that the plaintiff was negligent for his failure to wear boots with steel toe caps rather than running shoes. It cannot reasonably be argued that he should have been wearing protective footwear solely for the purpose of assisting with the unloading of the cylinder. There was no other evidence upon which it is open for me to find that he should have been wearing protective footwear for some other reason, such as the nature of the work at the premises of Reynolds Truck Centre. In any event, I accept the plaintiff's evidence that steel caps would not have protected that part of his foot upon which the cylinder landed and I am not satisfied that the leather of the boots would have provided sufficient protection to prevent the injury he suffered.

The liability of the Third Party

1. The truck was registered as a motor vehicle under the Traffic Act 1925 and a premium had been paid in respect of it pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973 s30. By virtue of s14(1) of the last mentioned Act, the third party Board is bound to indemnify a person owning or using the motor vehicle "in respect of any liability (not being a contractual liability) incurred by him in respect of the death of, or bodily injury to, any person caused by or arising out of the use of that motor vehicle in this State".

1. It is not the liability which has been incurred by the defendant which must have been caused by or have arisen out of the use of the truck. It is the bodily injury to the plaintiff which must have been so caused or have so arisen. The liability for the injury which is required to be indemnified may arise from a tortious act other than the negligent use of the motor vehicle itself. Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500 at 504. The question whether the particular circumstances bring the case within the expression of the indemnity in s14 is, within limits, one of fact. Windeyer J in Fawcett v BHP By–Products Pty Ltd (1960) 104 CLR 80 at 91 and Government Insurance Office of NSW v King (1960) 104 CLR 93 at 105. There have been a considerable number of cases arising in other States where similar expressions have been interpreted by courts. Those expressions have of course occurred in different pieces of legislation and in policies of insurance issued pursuant to them, but the many judgments are of considerable assistance and pertinent for the purposes of this case. In State Government Insurance Commission v Stevens Brothers Pty Ltd (1984) 154 CLR 552 at 555 Murphy, Wilson, Brennan and Deane JJ referred to the difficulty that can attend the application of the expression "caused by, or arising out of the use of, the vehicle" to particular cases and the futility of striving to enunciate a general proposition, the application of which will provide a ready solution to every case. Nevertheless, they said that earlier cases established some important principles which were:

1The cover provided by a policy containing such an expression (in compliance with legislation) was not limited by reference to the distinguishing characteristics which bring the thing within the definition of "motor vehicle".

2The cover is not confined to an event occurring while the vehicle is being used on public roads. Government Insurance Office of NSW v R.J. Green & Lloyd Pty Ltd (1965) 114 CLR 437 at pp441–442; Commercial and General Insurance Co. Limited v Government Insurance Office of NSW (1973) 129 CLR 374 at 379. In the former case at pp 441–442, Barwick CJ said:

" ..... the Act is not limited to the use of a vehicle in or upon public thoroughfares or to its use in movements; and that in choosing the expression 'the use of the motor vehicle' as the basis for the requirement of a policy of insurance and for the delimitation of the area of the indemnity to be obtained, the Act indicates an intention to cover a very wide field, a field more extensive than what might be called the traffic use of the motor vehicle."

In Dickinson v Motor Vehicle Insurance Trust (supra) at p505 the court said that "use'' extends to everything that fairly falls within the conception of the use of a motor vehicle and may include a use which does not involve locomotion.

3The expression "arising out of" must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words "caused by". Government Insurance Office of NSW v R.J. Green & Lloyd Pty Ltd (supra) at pp 442–443, 445 and 447.

1. In Transport Accident Commission v Hoffman [1989] VR 197 at pp 200–201, Young CJ and McGarvie J stated a number of propositions which appear to be clearly established. They included:

1The injury must in some way be a consequence of the use of the vehicle. In Government Insurance Office of NSW v RJ Green & Lloyd Pty Ltd (supra) at 446 Windeyer J said:

"The only limitation upon its generality that I can see is that the injury must be in some way a consequence of a use of the vehicle as a motor vehicle. Any use that is not utterly foreign to its character as a motor vehicle is, I consider, covered by the words."

2The use relied on must be "use" that is in some way incidental to the normal use of a motor vehicle. Windeyer J at 447. But injuries may arise out of the use of a motor car even though they do not occur or arise whilst the motor car is in fact being used.

1. Expanding on the first proposition above, Young CJ and McGarvie J added:

"We find the clearest statement of the necessary relationship in the judgment of Windeyer J in the case of HJ Green & Lloyd Pty Ltd, at p447, where his Honour said: 'The words "injury caused by or arising out of the use of the vehicle" postulate a causal relationship between the use of the vehicle and the injury. "Caused by" connotes a "direct" or "proximate" relationship of cause and effect. "Arising out of" extends this to a result that is less immediate; but it still carries a sense of consequence. It excludes cases of bodily injury in which the use of the vehicle is a merely casual concomitant, not considered to be, in a relevant causal sense, a contributing factor.' See also Dickinson v Motor Vehicle Insurance Trust (1987) 61 ALJR 533, at p555; 74 ALR 197.

We agree with O'Bryan J that the expression used by Tadgell J in Lamont, Hodkinson and Jorgensen v Motor Accidents Board [1983] 1 VR 88, at p96, viz 'non–coincidental nexus' expresses positively the necessary link between 'use' and 'injury"'.

1. The truck was designed to be used primarily to carry goods and had in fact been specially modified for the purpose of transporting cylinders of gas. It was part of the implementation of that purpose not only to transport those cylinders but also to load them onto the truck and unload them from it. Applying the words used in s14(1) and the statements of principle to which I have referred, I conclude that the truck was being used at all times when the defendant brought it to a stand–still, climbed on its tray and proceeded to unload the cylinder from it to the ground. I have no doubt that the bodily injury suffered by the plaintiff as a consequence of that unloading operation arose out of the use of the truck. Once the cylinder had reached the ground and was in the course of being moved into the building it could not have been said that the truck was being used nor that any injury arising out of that subsequent movement was caused by or arose out of the use of the truck. Such a later injury would have been too remote, not sufficiently proximate to the previous use of the truck. But the placing of the cylinders onto the tray of the truck and removing them from it were elements of the use for which the truck was designed and applied and accordingly, the plaintiff's injury can truly be said to have arisen out of the use of the truck.

1. My conclusion is clearly consistent with the decisions in a number of cases such as Government Insurance Office of NSW v HJ Green & Lloyd Pty Ltd (supra), Transport Accident Commission v Road Construction Authority [1990] VR 989, Hancock v Sydney County Council (1987) Aust Torts Reports 80–085, State Insurance Office (Vic.) v Nestle Australia Limited (1988) 5 ANZ Insurance Cases 60–868 and Muegel v Fast Freight Pty Ltd (1987) 45 SASR 20. All of them were loading cases. In Muegel, a number of general propositions were stated by Olsson J and he referred in the course of his judgment to Gray v Murray [1979] Tas R 48 which is difficult to explain consistently with the decision to which I have come. Gray v Murray is distinguishable for Everett J was there concerned with the provisions of s22(1), which require a court without a jury to hear an action in which damages are sought in respect of an accident, and with the definition of the word "accident" in s2(1), and I distinguish it on that basis. However, I note that Olsson J doubted the correctness of the view of Everett J and it may need to be reconsidered in the future.

1. Accordingly, I hold that the defendant is entitled to be indemnified by the third party Board as claimed.