Tringrove v Trident Consolidated Industries Pty Ltd
[2002] TASSC 7
•7 March 2002
[2002] TASSC 7
CITATION: Tringrove v Trident Consolidated Industries Pty Ltd [2002] TASSC 7
PARTIES: TRINGROVE, Denis Ross
v
TRIDENT CONSOLIDATED INDUSTRIES PTY LTD
(ACN 009 582 478)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 696/1998
DELIVERED ON: 7 March 2002
DELIVERED AT: Launceston
HEARING DATE/S: 17, 18, 19 and 22 October 2001
JUDGMENT OF: Crawford J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiff: P W Tree
Defendant: P L Jackson
Solicitors:
Plaintiff: Watling Roche Lawyers
Defendant: Griffits & Jackson
Judgment ID Number: [2002] TASSC 7
Number of paragraphs: 17
Serial No 7/2002
File No 696/1998
DENIS ROSS TRINGROVE v TRIDENT CONSOLIDATED INDUSTRIES
PTY LTD (ACN 009 582 478)
REASONS FOR JUDGMENT CRAWFORD J
7 March 2002
The plaintiff sued the defendant for damages for personal injuries allegedly suffered by him in the course of his employment by the defendant on 19 June 1995 as a result of the defendant's negligence and breach of statutory duty. He claimed to have suffered hip and back injuries when he was attempting to enter the cabin of a truck. His case depended for its success upon findings that:
·as part of its suspension there was an airbag under the rear of the cabin;
·the airbag had a faulty switch and as a result the air bag was deflated;
·because the airbag was deflated the cabin leaned backwards to a degree;
·because the cabin was on a backward lean, the driver's side door of the cabin closed on him as he was entering the cabin, striking his right arm as he reached with it for the steering wheel; and
·as a result he missed his hold on the steering wheel, his right foot slipped off a step just below the door and he fell away from the doorway and twisted, holding onto and hanging from a handrail with his left hand.
It was the plaintiff's case that the defendant and its employees knew or ought to have known that the airbag was defective and that there was a consequent tendency for the door to close on a person entering the cabin.
The evidence satisfies me on the balance of probabilities that as part of its suspension there was an airbag under the rear of the cabin, that the airbag had a faulty switch as a result of which the airbag was occasionally deflated after a period of non-use of the truck, that on the occasions when the airbag was deflated the cabin leaned backwards to some degree (there was evidence that the rear of the cabin dropped about three or four inches when the airbag was deflated), that when the cabin leaned back in that way there was a tendency for the driver's door to close, and that the plaintiff lost his footing on the step just below the doorway and fell in the way mentioned above. However, the evidence does not satisfy me on the balance of probabilities that the cause of his fall was that the door closed on his arm as claimed by him. I therefore find for the defendant.
The plaintiff had about 14 years' truck driving experience. He had been employed by the defendant as a truck driver for about 10 years. The truck was a Mack Cruise-Liner. It was a cab over model, meaning that the cab was over the front wheels.
At about 7.30am on Monday, 19 June 1995, he was allocated the Cruise-Liner to drive. In evidence he estimated that the driver's seat was probably six to seven feet above the ground. To enter it he needed to place his right foot on the bottom of two aluminium pipe steps fixed to the outside of the vehicle. He estimated that the bottom step was about 600 millimetres above the ground. With his left hand he needed to hold a handrail attached to the rear corner of the cabin, just above where he was. He then needed to step up with his left foot onto the upper of the two pipe rail steps, which he estimated was about a metre above the ground. With the door open he then needed to place his right foot onto a recessed step or foothold just below the floor of the cabin and above the front wheel. It was then necessary for him to reach hold of the steering wheel with his right hand and pull himself into the cabin, transferring his weight forward so that, with his weight on his right foot, his left foot swung across and onto the floor of the cabin just in front of the driver's seat. At about that time it was necessary for him to release his left hand from the outside handrail and reach with that hand for the steering wheel. As his weight transferred onto his left foot on the floor of the cabin, his right foot would come off the recessed step and the rest of his body would have completed entry into the cabin.
Concerning what went wrong, his evidence was that the driver's door swung from the open position towards the closed position when his right foot was on the recessed step and he was reaching with his right hand for the steering wheel. The closing door struck his right elbow and that caused him to miss grasping hold of the steering wheel. At that point of time, he said, his weight was on his right foot on the recessed step and his left foot had left the second step. His right foot slipped out of the recessed step. He still had hold of the outside handrail with his left hand and he fell and swung by his left hand around and back, his feet initially in the air but then with his left foot back on the second step, and he struck his left hip against part of the outside of the cabin. His injuries resulted. It was his evidence that unknown to him the airbag was deflated and the cabin was leaning back, as a consequence of which the closing door had caused his accident.
I do not accept that the plaintiff has established on the balance of probabilities that the closing door caused the accident, primarily because that was not attributed by him as a cause until long after. It was his evidence that he was unaware of the problem with the airbag until after he had started the truck later on the day of the accident. He agreed that he did nothing to have the defect fixed. He was asked whether he told anybody about the defect and he unconvincingly stated that he supposed he would have made mention of it. The owner of the truck was Mr Robin Fahey. He had been a sub‑contractor of the defendant until on or about 5 June 1995, when he became its employee as the storage and distribution manager and hired the truck to the company. In cross‑examination, the plaintiff was asked when did he first tell somebody about the accident. His response was that on the day after the accident he told Mr Fahey, because he was the storage and distribution manager and an accident like that had to be reported either to Mr Fahey or a Mr Le Rossignol. On being asked what he had reported to Mr Fahey, he became noticeably wary and said "I just mentioned about slipping getting into the truck, I hurt my hip". He agreed that he did not tell Mr Fahey that he was knocked off balance by the door, a fact which I find surprising if it had been the cause of his accident. Mr Fahey clearly had an interest, as a manager and as owner of the truck, in knowing that the truck had a defect which had caused an injury.
In a personal accident report form provided to him by the defendant, the plaintiff wrote in his own handwriting, in answer to a question asking him to describe what happened, that "while climbing into truck my foot slipped on top step and I swung around and hit the side of truck". He made no mention of the deflated airbag, the leaning cab, or the closing door. In cross-examination, his explanation for not doing so was that "at the time that that form would have been filled in, I would have been in a fair amount of pain, and filling in a form was the last thing on my mind". His answer was not very convincing, particularly having regard to his admission that he could not remember filling the form in. Later, in re-examination, he gave evidence that he probably filled it in at 7.30 to 8pm on 23 June 1995, at a time when he was "in a fair amount of pain … and I could barely walk".
Following the accident, the plaintiff attended a general practitioner, Dr Hunter, who referred him to an orthopaedic surgeon, Mr Guy Marquis. The plaintiff conceded that on 6 July 1995 he probably did not tell Mr Marquis anything about being hit by the door and accepted that what he had told the surgeon was that he was hauling himself into a truck, missed his handhold, stumbled, hit his left side and twisted. He said that he did not tell Mr Marquis about the role of the door in his accident because it would not have made any difference.
On 18 July 1995 a statement was obtained from him by Mr Colin Williams, who I presume was a loss assessor employed by the defendant's insurer. It was handwritten by Mr Williams and signed by the plaintiff. Relevantly, it contained the following passage:
"The unit was parked near the office I was stepping up into the cab I was going to grab the steering wheel I missed judged [sic] it and fell back onto the second step. My left hand was holding the last handle and my weight went onto my left leg. My right leg was swinging free. I swung back around and bumped into the side of the cab."
In cross-examination, the plaintiff conceded that he knew that Mr Williams was investigating precisely what had happened and that he would be reporting back to an insurance company. He was asked why he had not told Mr Williams about the deflated airbag, the truck leaning backwards and the door coming back at him more quickly than he expected or had previously experienced, and he gave as his reason that "I was laying flat on my face on the lounge room floor and I couldn't even stand up I was in so much pain; it was the last thing on my mind filling in a form". I note that it was not in fact a form but a handwritten statement, written by Mr Williams on lined A4 paper. He agreed that he had read the statement and had signed it.
The plaintiff claimed workers compensation. Initially his claim was disputed and on 4 July 1996 he gave evidence before the Workers Rehabilitation and Compensation Tribunal. He made no mention of the deflated airbag, a lean on the cab or the closing of the door, notwithstanding that some detail was sought from him. Initially he was asked what had occurred and he answered:
"I went to work and was allocated a job for the day and was climbing out of a truck and missed me hand hold and slipped back on to the bottom step of the truck and twisted around as I fell and hit my hip against the side of truck."
Shortly after, he gave the following evidence:
"And what movements are involved in getting in to the cabin of a truck like that? … A fairly simple procedure after you've done it a few times. You step one foot over the other up three steps and then reach across and grab the steering wheel and step on to the fourth step and then into the cab from there.
And on this particular day what went wrong with that routine? … Well, I just missed the steering wheel with my right hand.
And what, you've given evidence that you twisted around sideways and - ? … Well, you put your weight, your [sic] throw your weight onto the your right hand and then sort of pull yourself in. Well, I missed the steering wheel and the edge of my toes slipped off the top step and I slipped back into the next one and twisted around at the same time."
Once again, there was no mention of facts upon which he relied for success at the trial.
There was some other evidence of what the plaintiff told to medical practitioners concerning the accident. He accepted that it was not until he saw a Dr Ernst in June 1998, a month after the writ was issued, that he first told a medical practitioner anything about the cause of the accident being referable to the airbag, the cabin leaning back or the door.
I accept that it is possible that the plaintiff's evidence concerning the cause of his accident was true. However, because of the number of occasions upon which he made no mention of the vital facts when describing what occurred I have concluded that I cannot find those facts in his favour. It is understandable that if on a form, the space allowed for a brief description only, he might not have provided all of the details. I accept that if he was in pain on a particular occasion, it is possible that he would not have related all of the details. However, his versions of the accident in his signed statement to Mr Williams and in his evidence before the Tribunal I find to be particularly detrimental to his case. Notwithstanding that at the trial "recent invention" was clearly raised by the defence, there was no evidence that he attributed the cause of the accident to the airbag, the cabin leaning back or the closing door until the delivery of his statement of claim in June 1998. When cross‑examining counsel commenced to raise with him his earlier versions of the accident he became wary and guarded in his answers. It appeared obvious to me that he was conscious of the damage his earlier versions could cause his case. In that circumstance, it is reasonable to infer that if he had been able to put before the Court that at an early point of time following the accident he had given a version of it that was consistent with his evidence, he would have done so.
There were no witnesses to the accident apart from the plaintiff. Evidence was given by Mr Fahey which established on the balance of probabilities that shortly prior to the plaintiff's accident he had been experiencing occasional difficulties with the airbag deflating and causing the cabin to lean back and the door to close rather than stay open. Notwithstanding that evidence, I am not persuaded that it should be found as a fact that it was the closing of the door onto the plaintiff's arm that caused his accident. Clearly it was not a significant factor in the plaintiff's mind for a long time after the accident.
There was also evidence given by Mr Peter Williams concerning difficulties he experienced with the Cruise-Liner in 1995. He described the problem with the airbag as a daily one and gave evidence, which I did not find convincing, of reporting the defect on a number of occasions, without it being rectified. I do not accept his evidence that he was describing a time prior to the plaintiff's accident. If, as he claimed, he had been driving the truck for three weeks then he must have been describing a time after the plaintiff's accident, for Mr Fahey had regularly been driving the vehicle until about two weeks before the accident. His evidence that the defect was not repaired for at least 18 months or two years thereafter did not accord with the evidence of Mr Fahey, who was the owner of the truck.
I find against the plaintiff because I do not accept his evidence that the closing of the door upon his arm was the cause of the accident.
For these reasons there will be judgment for the defendant.
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