MVA: driver of a garbage truck liable for injury to resident

Gorlick v Behan v Anor [2016] QDC 357

Durward SC DCJ

The plaintiff took her ‘wheelie’ bin to the kerbside for collection by the garbage truck. The truck had already passed the plaintiff’s property and was in front of the next property. The plaintiff attempted to move her bin to the opposite side of the road by wheeling the bin behind the truck at which time the truck reversed.

The plaintiff alleged that she caught her heel at the edge of the driveway and fell backwards, and fell a second time after trying to get up where she sustained injuries to her head.

The plaintiff’s contended that her falls and injuries were a direct consequence of and were caused by the reversing of the truck. The defendant contended that the truck was not involved in the plaintiff’s falls and that the plaintiff fell independent of the reversing truck. Alternatively, the defendant alleged contributory negligence.

Liability

In issue was whether the plaintiff was on the road and had to move to avoid the reversing truck or whether she was on the driveway and fell because of her own conduct. After discussing the test for negligence as expressed in Wyong Shire Council v Shirt, Durward SC DCJ found that the first defendant was negligent in the operation and control of the truck. His Honour reasoned:

[60] I find that the plaintiff was on the road and had to move back quickly to avoid being struck by the truck.  Her heel hit the gutter edge and she fell onto the driveway.  The plaintiff made eye contact with the first defendant, who reversed the truck rather than continuing in a forward direction.

[61] Whilst I have found that the truck reversed, it did not do so “at speed.”  It had the reverse audible warning operating and the plaintiff was aware the truck had begun to reverse, at least by reason of the gear shift noise to which she referred in evidence, but she was already on the road.

[67] The catching of the heel is unlikely to have taken place on the driveway per se because the surface does not suggest that there is any unevenness or height difference upon which a heel might be caught, whereas the gutter edge or join has that feature. There is no doubt that the gutter is below the kerb level at the end of the driveway and is continuous on each side of the driveway separating the kerb from the roadway.

Contributory negligence

After finding negligence on part of the first defendant, Durward SC QDJ discussed the defence of contributory negligence. His Honour stated:

[79] The test of contributory negligence is an objective one. The plaintiff must exercise the standard of care expected of an ordinary reasonable person engaging in the conduct that would cause the plaintiff’s injury or damage. The analysis in the first instance involves determining the factual context of the relevant incident in determining the circumstances in which the plaintiff finds himself or herself and then to determine what he or she ought reasonably to have done for his or her own protection.

[82] The plaintiff had experience in her working life in the transport industry and was familiar with trucks. Her familiarity is highlighted by her evidence that she knew the truck was going to reverse by the gear shift noise … She had stepped out onto the road way, albeit with a view to crossing to the other side, behind the truck after she had attracted the attention of the driver. In doing so it seems to me that there was a real risk that the truck may reverse and she thereby placed herself in a position of potential risk of injury or damage. It would have been more reasonable for her to have remained at the kerbside until the truck moved either forward or in reverse before stepping out onto the road to cross to the other side.

[84] In my view the first defendant was more culpable than the plaintiff in the incident. She had seen the plaintiff in the rear vision mirror and irrespective of what arm movements were made by the plaintiff in expressing her intended course of action and whether or not they were seen by the first defendant…

His Honour assessed contributory negligence at 15%.

Quantum

His Honour assessed damages as follows:

Head of Damage

 

Amount
General damages

 

$14,850.00
Past loss of income

 

$4,000.00
Past superannuation

 

$555.00
Past special damages, including interest

 

$1,648.88
Future special damages

 

$3,000.00
Future economic loss

 

$80,000.00
Future loss of superannuation

 

$8,264.00
Sub total

 

$112,317.68
Less 15% contributory negligence

 

$16,847.68
 

TOTAL

 

 

$95,470.20

 

David Cormack – Brisbane Barrister & Mediator

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