Trenowden v Toyota Motor Corporation Australia & Anor No. Scciv-03-75

Trenowden v Toyota Motor Corporation Australia Limited
and Toyota Motor Corporation (Japan)
[2003] SASC 172
Magistrates Appeal

DUGGAN J. This is an appeal against the dismissal by a magistrate of the appellant’s claim for damages for personal injury.
The action arose out of an incident which occurred on 16 May 1998 when the appellant was boarding a 1988 Toyota Tarago wagon which was owned by a friend. The wagon has a sliding door which allows access to the rear passenger compartment. A single bucket seat is located immediately inside the door. The seat can slide backwards and forwards and a lever which releases the seat for this purpose is located at the front of the seat.
According to the appellant’s case, her right leg came into contact with the lever as she was climbing into the rear compartment. She sustained a laceration of the lower anterior shin which extended to the posterior calf. Subsequently the wound became infected, thus necessitating ongoing medical treatment. The appellant commenced this action in negligence against the respondents who are the manufacturer and distributor of the vehicle respectively.
There was evidence that the lever did not have any sharp edges and that the handle was covered with moulded plastic. A surgeon called by the defence expressed the view that it was unlikely that a blunt object such as the handle caused the injury. The learned magistrate dismissed the action on the ground that the appellant had not established that the injury was caused by the lever. The magistrate also stated in her reasons that the appellant had not proved the lever posed a clear and present danger which should have been appreciated by the manufacturer and the distributor of the vehicle. The action against both respondents was dismissed.
In order to deal with the arguments presented on appeal it is necessary to describe the position of the lever in more detail. It is located under the bucket seat and at the front of the seat. The handle is angled in an upward direction so that the end of the handle inclines towards the sliding door. The handle does not protrude beyond the front edge of the seat when the seat is in the forward position, but when it is pushed back as far as it can go there is a slight protrusion of about five millimetres from the front edge of the seat. There was evidence that there would have to be some contact by the leg with the top cushion of the seat in order for the lever to come into contact with that part of a person’s leg which is between the calf and the angle.
According to the evidence, the lever comprises a steel rod with a black plastic cover. The rod is approximately ten millimetres in diameter and the handle, which is covered with moulded plastic, is about 12 to 15 millimetres in diameter. The end of the handle has a flattish surface with round edges. The plastic covered the handle to a thickness of one millimetre to a thickness of two and a half millimetres at the end of the handle.
The magistrate summarised the appellant’s evidence of the incident:
“The plaintiff travelled by train to South Australia on the day she suffered the injury. She is 67 years of age and travelled with her husband to visit family and friends in this State. A friend, Mrs Zyderveld, met them at the train station and they travelled in the Tarago to Mrs Zyderveld’s home at Para Hills. After lunch the plaintiff boarded the Tarago with her husband to travel to her daughter’s home. Mrs Zyderveld was to drive and was accompanied by Daniel, her 7-year-old son. The injury occurred before the plaintiff was seated in the Tarago. The plaintiff climbed steps into the compartment. She used her left leg to climb, followed by her right leg. She described during evidence that her right leg knocked against the lever, severing an artery, causing blood to spurt from her right leg. The plaintiff was hospitalised and 19 stitches were placed in the jagged cut.
On p 6 line 24 of the transcript she was asked:
‘QCan you say how you got into the vehicle?
AI held on to the side of the door, put my left leg up first on to the floor of the car.
QYou didn’t use the step?
AThere’s a little step. I can’t really remember. I think I would have. It was too long ago for me to really remember. When I pulled my right leg up, it came in contact with the lever.
QIn relation to the carpet floor seen in the photograph, (P1.5), which leg did you place on the carpet first?
AThe left one.
QThen what did you do?
AThen came up with the right one.
QWhere did you intend to put the right foot?
ANext to the left foot, then move around my left and sit down.
QDid you get your right foot that far?
ANo. I just got to that position when I contacted the lever and I couldn’t move because my leg was stuck with the stocking attached to the lever.’
During cross-examination, the plaintiff gave this evidence at p 19 line 34 of the transcript:
‘QCan you remember whether your leg was moving slowly or fast?
ANo, it would have been fairly fast I suppose. I can’t really remember accurately.’
At p 24 line 8 of the transcript she said:
‘QI want you to respond directly to this. I suggest to you that there was nothing sharp, there was no edge, on the seat release lever. Do you agree or disagree with that?
AIt was hard, brittle cover and that was penetrating my leg.
QIs it possible that there was something else in the car that was sharp?
ANo, because my leg was still attached to the lever by my stocking which was covered in blood.
QAgain, you observed that at the time when you were frightened and losing a lot of blood?
ANo, I didn’t observe it. I couldn’t move my leg, it was stuck to the lever by my stocking which was covered in blood.
QSo it’s fair to say that you didn’t have a good look around the car once the injury occurred. You had your mind on other things?
AI had my mind on the pain.’ ”
Mrs Zyderveld was called to give evidence as part of the appellant’s case. She said she was standing behind the appellant as she was boarding the vehicle. She said that when the appellant stepped into the vehicle she screamed “My leg, my leg”. Mrs Zyderveld added that she put her hand onto the appellant’s leg and felt blood. She said she could tell that the appellant’s leg was against the lever.
The appellant did not call any witness apart from Mrs Zyderveld. The respondent called three witnesses; two experts employed by the Toyota Motor Corporation and Mr Eriksen a surgeon. Mr Eriksen examined the appellant for the purposes of the case on 20 August 2001. He said it appeared that the appellant had suffered a quite extensive laceration and there had been significant blood loss. From the description given to him, Mr Eriksen formed the view that a medium sized blood vessel had been lacerated. He said that could have been caused by a sharp instrument, but if a blunt instrument was involved in the laceration of an artery to this degree, the force would have to be such that there would also be major soft tissue damage. He said he was unaware of such damage. He said that, in his view, it was extremely unlikely that the lever which was described to him could have caused the injury which the plaintiff suffered.
One of the expert witnesses, Mr Panozzo, has been employed by the Toyota Corporation for 35 years. He is involved in safety issues for the company and he gave evidence that the 1988 Toyota Tarago complied with all requirements of the Australian Design Rules.
Mr Gaskin, the District Operations Manager of Toyota Australia was the other expert witness called by the respondent. He has been an employee of the company for 28 years. He is involved in technical and mechanical fields and is familiar with this model Tarago and the operation of the seats.
After considering the evidence the magistrate said:
“I do not consider the plaintiff has good recall of events leading to her injury and has as mistakenly assumed the lever caused it. Tripping, falling, a sudden propulsion or force were likely contributors to her being injured. She has not recollected any such movement or force. I do not consider on the evidence presented to me as to the characteristics of the lever the plaintiff has proved on the balance of probabilities that the lever caused the injury. Her account appears to be inconsistent with any analysis of the possible events that led to such an injury. There is no evidence of a sharp edge on the lever due to age or wear and on the evidence before me I can only find that the end of the lever was 12 to 15 millimetres in diameter, covered with moulded plastic, with a flattish surface with round edges.
. . .
Whilst Mrs Zyderveld was sincere in her investigation, there was no evidence of a proper inspection at the time of the injury. The plaintiff has not proved the lever posed a clear and present danger that should have been apparent to the manufacturer and distributor.”
The appellant claims that it was not reasonably open to the magistrate to make these findings. According to Mr Scragg, for the appellant, the only possible basis for the refusal of the magistrate to act on the evidence of the appellant and Mrs Zyderveld would have been that they were untruthful in their accounts and that they had collaborated in the giving of their evidence.
This argument must be rejected. The magistrate was not prepared to accept the evidence of the appellant as accurate. She observed that the appellant did not have a good recall of the events. This is apparent from a reading of the transcript of the appellant’s evidence. It is also understandable when regard is had to the circumstances of the incident.
The appellant did not look at the lever as she was climbing into the vehicle. The first realisation that something had happened was when she felt considerable pain. She described the spurting of blood from the injury and the fact that a tourniquet had to be applied to it to stem the flow. It is true that her stocking was caught up in the lever, but that does not lead inevitably to the conclusion that the lever caused the injury.
Mrs Zyderveld was not in a position to see how the injury was caused. She was behind the appellant at the time, although she also saw the appellant’s stocking tangled in the lever after the appellant had called out. Understandably, no immediate inspection of the vehicle was made by either woman.
Next it was argued that there was no basis for the assumptions made by Mr Eriksen in explaining his opinion as to whether the injury could have been caused by the lever.
When explaining why he considered that the injury was caused by a sharp object Mr Eriksen observed that the appellant was bleeding quite dramatically from a spurting blood vessel. He said that an artery has a more robust wall than a vein. He said this indicated to him that the laceration was quite deep. He said that, in the circumstances, it was natural to assume that a sharp object was involved. He added that blunt trauma could sever an artery if the force was great enough, but this would have been accompanied by major soft tissue damage. It is true, as the witness conceded, that he could not say of his own knowledge whether there was any soft tissue injury. He did not examine the appellant until approximately three years after the incident. However, there was no suggestion in the evidence, including the evidence of the appellant, that there was major soft tissue injury. Nor was there evidence of circumstances which could account for the degree of force necessary for a blunt instrument to cause such an injury. The witness said that she was not hurrying into the vehicle and that her movements were at a normal pace. Mr Eriksen said that if the lever had caused the injury considerable force would be required. The appellant’s own description of the injury was that it was a jagged cut which required 19 sutures.
Mr Scragg also criticised the finding in para 17 of the magistrate’s reasons where she said:
“I have outlined the evidence that I consider relevant to my determination as to whether on the balance of probabilities the plaintiff has made out her claim. The plaintiff’s account of the cause of her injury is corroborated by Mrs Zyderveld but rejected by the defendant’s witnesses as a possibility.”
The comments made by her Honour are somewhat awkwardly expressed. It is apparent, however, that she was describing the effect of the defence case and, in particular, the evidence of Mr Eriksen. He said in answer to a question in cross-examination that in medicine you could not completely exclude something as a possibility, but he preferred to say that it was “extremely unlikely” that the lever caused the injury. The magistrate described this evidence as compelling and it was open to her to take it into account in concluding that the appellant had not proved her case.
It was argued that there were no competing causes for the accident which were apparent on the evidence. That is not to say, however, that the accident could not have been caused by the appellant’s leg coming into contact with some other object. There appears to have been no immediate inspection of the vehicle after the accident and the only photographs of the interior of the vehicle which were tendered were taken by Mrs Zyderveld’s husband approximately three months after the event.
The appeal to this court is by way of rehearing and the appeal court must reach its own view of the case by way of a independent assessment of the evidence after giving due weight to the advantage of the magistrate in hearing and seeing the witnesses. After conducting a review of the evidence I have reached the conclusion that the appellant did not establish on the balance of probabilities that the lever caused the injury. I do not overlook the evidence that the appellant’s stocking was caught up in the lever during the incident. However, Mr Eriksen’s evidence was that it was unlikely for the lever to have been responsible for the injury and, if it had been, considerable force would have been necessary to cause such a laceration. There was no inspection of the vehicle at the time of the incident to determine whether another object might have caused the injury.
However, even if it is assumed that the injury was caused by contact with the lever as the appellant climbed into the vehicle, I am not satisfied that the appellant could establish a breach of the duty of care owed by the respondents as manufacturer and distributor of the vehicle.
The degree of care required in the design of the vehicle and its fittings is that which a reasonably prudent manufacturer would exercise in the circumstances; Adelaide Chemical and Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514 at 523; Bull v Rover Motors (Aust) Pty Ltd [1984] 2 Qd R 489 at 499.
The duty is to act reasonably, but there is no requirement that the product be absolutely safe for use: Bull v Rover Motors (Aust) Pty Ltd at 499; Suosaari v Steinhardt [1989] 2 Qd R 477.
In the present case, precautions had been taken to ensure that the lever did not have any exposed edges which might reasonably be expected to cause injury. The handle of the lever was covered in moulded plastic. As I have pointed out, there is a protrusion of the lever only when the seat is pushed back and, even then, the protrusion is approximately five millimetres from the edge of the seat. It appears from the photographs that the lever would have been visible to anyone in the appellant’s position as she entered the vehicle.
If the lever was the cause of the injury, it is my view that the incident could not be viewed as anything but an unusual and unfortunate accident. It could not be said that an injury of this type was reasonably foreseeable. In my view there was not a breach of the duty of care owed by the manufacturer or the distributor.
The appeal will be dismissed.

[2003] SASC 172

19 June 2003