The driver was standing beside the truck’s trailer when a cotton bale was nudged off the trailer by a forklift operator and fell on him, causing serious spinal injuries.
Failure to comply with safety zone rules
The driver was employed by a Moree-based trucking company. On 28 April 2016, he drove a B-double truck and trailer carrying cotton bales to the premises of a business operating cotton ginning farms at Goondiwindi in Queensland.
While the truck was being unloaded, he approached it to attend to some struts on the trailer. He knew it was risky to leave the safety zone while the forklifts were busy unloading, but said he was given the green light by one of the forklift operators and thus did not expect them to continue unloading.
However, the forklift drivers did continue to unload the trailers, apparently dislodging a cotton bale that fell and struck the driver on the head and shoulder, knocking him backwards and causing him to land heavily on the concrete surface.
His injuries were severe, including fractures of the thoracic, lumbar and cervical spine and damage to both shoulders and one elbow. He said he had ongoing pain and vertigo and had become depressed and anxious.
Despite rehabilitation and a return to work trial in 2016 and 2017, he has not worked since the accident. In his statement, he claimed he was unable to care for himself, assist with domestic duties, or look after his property. He said he rarely drives and cannot drive long distances.
The driver claimed damages from the cotton ginning company, arguing it had failed to meet its care to him, as the forklift drivers’ actions had caused his injuries.
The case was heard in the Supreme Court of New South Wales.
Credibility issues
The company maintained that the driver was to blame for the incident, because he should not have left the safety zone.
After hearing the evidence, the judge had reservations about the driver’s evidence and his credibility generally. Though he accepted that the driver had suffered from potentially significant injuries, he formed the view that his complaints of ongoing pain and disability were exaggerated.
Many of his answers in cross-examination were inconsistent with medical records. There were also inconsistencies between his evidentiary statement, what he said in court and the evidence of the cotton ginning company’s witnesses.
Moreover, his presentation in the witness box was inconsistent with his alleged severe restrictions of movement.
Duty of care owed to a visitor to the workplace
The cotton ginning company owed a duty of care to the truck driver as a visitor to the site. It was legally obliged to identify risks of harm and consider whether any risk was foreseeable and not insignificant and whether a reasonable person would take appropriate precautions.
Despite the apparent absence of earlier similar accidents, the judge concluded that there could be no doubt that the risk of an unloading mishap was foreseeable and not insignificant.
The company had failed to exercise reasonable care through its forklift operators in that they did not comply with the system of work that it had put in place to prevent injury to people such as the driver.
The judge accepted that the company was negligent and that the failure to take care caused the driver’s injuries.
Contributory negligence
The driver was also at fault. He knew it was dangerous to approach the trailer while the forklift operators were unloading it and that he should have waited for an appropriate signal and instructions from the forklift driver. He saw unloading was continuing but approached the trailer anyway.
He was aware of the safety requirements but failed to follow them, exposing himself to the risk of harm. He was therefore guilty of contributory negligence and accordingly, the sum he’d receive in damages was to be reduced by 35%.
Damages
As the accident happened in Queensland, damages were assessed in accordance with that state’s Civil Liability Act 2003.
The judge assessed that the damages in terms of past and future economic loss, care and medical expenses amounted to an award of $617,582. After the reduction of 35% for contributory negligence, the company was ordered to pay the driver $401,428 plus the costs of the prosecution.
The bottom line: The risk of accidents when unloading trucks is well-known, and a safe system of work including the maintenance of safety zones is vital for preventing injuries.
Read the judgment
Turner v Carrington Ginning Pty Limited [2021] NSWSC 445 (30 April 2021)
