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

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.

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.

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Reynolds v Alomes and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1991] TASSC 95
Decision Date: 24 October 1991

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Reynolds v Alomes involved a dispute regarding an injury sustained by the plaintiff, Reynolds, while he was managing the workshop at Reynolds Truck Centre. The defendant, Alomes, was a truck driver delivering a gas cylinder to the plaintiff's premises. During the unloading process, the cylinder fell and struck the plaintiff's foot, causing an injury. The plaintiff sought damages for the injury and claimed that the defendant was negligent in his actions. The case also involved the Motor Accidents Insurance Board, which was liable for indemnifying the defendant under the Motor Accidents (Liabilities and Compensation) Act 1973.

The legal issues in the case involved determining whether the defendant was negligent in the way he unloaded the cylinder and whether the plaintiff's actions contributed to the injury. The court had to determine whether the plaintiff's injury arose out of the use of the truck, as required by the Motor Accidents (Liabilities and Compensation) Act 1973.

The court found that the defendant was negligent in not stopping the cylinder's fall when he realised the plaintiff was approaching to assist with the unloading process. The court held that the defendant should have arrested the fall of the cylinder to protect the plaintiff, and by failing to do so, he was negligent. However, the court also found that the plaintiff should bear a significant share of the responsibility for his injury, as he intervened unnecessarily and stepped directly in the path of the falling cylinder. The court reduced the damages recoverable by the plaintiff by 75% due to his contributory negligence. The court also found that the plaintiff was not negligent in not wearing protective footwear, as there was no evidence that he should have been wearing such footwear for the purpose of assisting with the unloading of the cylinder.

In relation to the third party Board's liability, the court held that the plaintiff's injury arose out of the use of the truck, as the unloading operation was an integral part of the truck's use for transporting gas cylinders. The court found that the defendant was entitled to be indemnified by the third party Board as claimed.

Orders