St Lawrence v McKenna
[2007] NSWSC 1245
•29 October 2007
CITATION: ST LAWRENCE v McKENNA & ORS [2007] NSWSC 1245 HEARING DATE(S): 29 October 2007 and 1 November 2007 JURISDICTION: Civil JUDGMENT OF: McClellan CJatCL EX TEMPORE JUDGMENT DATE: 29 October 2007 DECISION: Plaintiff was not guilty of contributory negligence CATCHWORDS: NEGLIGENCE – Contributory negligence – plaintiff truck driver aged 69 years at the time of accident – unloading of containers from truck – plaintiff’s leg injured by forklift – amputation – damages – whether plaintiff guilty of contributory negligence PARTIES: Terence St Lawrence (Pltf)
Peter McKenna (1D)
Patrick Stevedores Operations No 2 Pty Limited (2D)
Patrick Stevedores Holdings Pty Limited (3D)FILE NUMBER(S): SC 20046/2007 COUNSEL: R Goodridge (P)
H Halligan (1D, 2D, 3D)SOLICITORS: Firths -The Compensation Lawyers (P)
David Veasey (1D, 2D, 3D)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMcCLELLAN CJ at CL
MONDAY 29 OCTOBER 2007
JUDGMENT – contributory negligence20046/07 ST LAWRENCE v McKENNA & ORS
1 HIS HONOUR: This matter commenced this morning and with the co-operation of counsel the evidence concluded early in the afternoon. I have had discussions with counsel in relation to the prospective award of damages in the case, it being accepted by the defendant that a duty of care was breached to the plaintiff entitling him to recover damages in an amount to be determined.
2 The discussions have been detailed and I have now given an indication to the parties my view in relation to the appropriate sum for non-economic loss and the approach which should be adopted to other items of damages which have not been as yet arithmetically agreed.
3 The parties will, as I understand it, work cooperatively towards preparing a complete final schedule of damages which reflects my decision in relation to non-economic loss, my conclusions in relation to the approach to other items, and incorporates other matters which have been agreed.
4 That leaves the question of contributory negligence. It is the only issue on which the parties seek reasons. The plaintiff was injured when he was employed to drive a semi-trailer. The accident occurred on 6 January 2006 when his semi was loaded with a container which he took to the Patricks dock. He had been there on at least eight previous occasions and knew of the routine. It required him to check in at the main office, having been given a document referred to as a BAT. The BAT document had the number 113 on it together with instructions. Those instructions included this remark:
- “If you require to leave your cabin during unloading/loading you must stand in a safe position beyond the end of the tray of the vehicle to ensure that our fork drivers have clear vision of your position on the ground at all times.
- They are instructed to cease operations immediately should they lose sight of you at any time".
5 Having checked at the main office, the plaintiff was directed to the appropriate part of the dock where he was to await the arrival of a forklift truck which was to take the container from his truck. The driver who was designated to perform that task on this day was Mr McKenna. After the plaintiff came into position and stopped his truck Mr McKenna arrived in his forklift machine. The vehicle is of very significant size.
6 A map prepared by the police was tendered in evidence. That reveals that the plaintiff drove his truck along an area designated for the movement of semi-trailers in a northerly direction from where he had parked it to attend at the receiving and despatch office. The forklift also approached from a southerly direction and positioned itself virtually immediately to the west of the plaintiff's cabin.
7 The routine required the plaintiff to display his BAT through the windscreen of his truck. The evidence persuades me that having regard to the position in which Mr McKenna parked his forklift he would not have been able to see the BAT displayed in the plaintiff's window.
8 Even if that is not the case, it would seem that Mr McKenna was not able to identify where the container on the plaintiff's truck was to be placed on the site. Both of them gave evidence that as a consequence of Mr McKenna being unsure of the position, Mr McKenna gestured by holding his arms outstretched, his hands facing upwards, indicating, as I understand it, an inquiry of the plaintiff. He was asking the plaintiff to help him with further information so that Mr McKenna could identify where the container was to be located.
9 To solve this problem, the plaintiff, out of a sense of co-operation, alighted from his vehicle and went across and spoke with Mr McKenna who remained in the cabin of his forklift. They had a discussion and Mr McKenna indicated to the plaintiff that it was necessary for the plaintiff to move his vehicle approximately 100 metres away from where it was presently parked. During the course of that discussion the plaintiff gave Mr McKenna the papers which he had which no doubt enabled Mr McKenna to work out what was to be done with the container.
10 The conversation concluded and the plaintiff turned around and walked in a straight line back towards his vehicle. As he was doing so, Mr McKenna put his forklift in motion, turned it in a clockwise direction. As it was turning the rear wheel ran over the plaintiff's right foot occasioning the very serious injury which he suffered.
11 From the diagrammatic evidence and the configuration of the vehicles, it is plain that the plaintiff was within sight of Mr McKenna as he alighted from his truck and moved towards the forklift. As he returned to his truck, he would also have been within Mr McKenna's sight and it was only Mr McKenna, in turning his vehicle, which meant that he, as he said in evidence, lost sight of the plaintiff. In fact, he was not even aware that his vehicle had hit him.
12 The vehicle which Mr McKenna was driving was a very large and powerful vehicle with a capacity to cause very serious injury to anyone whom it contacted. Indeed, it was but by the merest margin that the vehicle did not contact the plaintiff and take his life.
13 It seems to me that in those circumstances a very heavy burden fell upon Mr McKenna to ensure that when he commenced to move his vehicle and turn it at a sharp angle he did so after the plaintiff had had the opportunity to clear entirely from its path.
14 I was unsure during the course of discussion with counsel as to whether or not I should find that the plaintiff contributed to the accident by failing to have reasonable care for his own safety. I have ultimately concluded that he did not. It seems to me that the plaintiff was reasonably entitled to expect that as he left Mr McKenna, being in Mr McKenna's view, Mr McKenna would at least pause the few seconds necessary for the plaintiff to clear from the path of the forklift as it turned.
15 It seems to me that the plaintiff, armed with the knowledge that Mr McKenna could see him, was reasonably entitled to expect that Mr McKenna would not make a movement which impacted upon him until he was well clear of the vehicle.
16 I appreciate that the plaintiff would have been aware that he had stepped onto the ground on a site where, by reason of the presence of large vehicles, there was a prospective danger. However, Patricks' own instructions to their drivers makes plain the obligation which fell upon those drivers to ensure they care appropriately for the safety of those who may have come on to the ground.
17 As I have related the relevant facts, it seems to me entirely reasonable that the plaintiff, endeavouring to assist and co-operate in the activity, alighted from his vehicle and moved across towards Mr McKenna's vehicle. He was entitled to assume, as does the instruction provided by Patricks itself, that a forklift would not be operated so that a person on the ground would cease to be in the driver's view until the driver was sure that that person was out of the path of the vehicle.
18 For those reasons I am of the view that the plaintiff was not guilty of contributory negligence in this case.
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