$290,974 claim dismissed

Press, 15 April 1980, Page 4

$290,974 claim dismissed

Nelson reporter I A claim for $290,974 in general and special damages] brought against the Waimea] Growers Co-operative, Ltd, by a former employee who was injured in a forklift accident on March 4, 1974, has been dismissed by Mr Justice Ongley in a reserved decision. His Honour also awarded costs against the plaintiff. Mr A. A. P. Willy and Mr B. N. Smythe represented George Morgan, a market gardener, and plaintiff in the action; Messrs J. A. Doogue and E. P. McNabb acted for the defendant. The case, in respect of liability only, was' heard in the Supreme Court, Nelson, in July last year. The claim arose from an accident on the defendant company’s premises, during which he suffered personal injuries, while he was driving a forklift during his employment. After driving a four-wheeled vehicle for some time the plaintiff was given a three-wheeled vehicle to drive. In his judgment his Honour referred to the conflict of evidence on what opportunities the plaintiff had had to familiarise himself with this machine before he was called Upon to use it. The plaintiff said he was given no instructions on how to operate it nor was there an instructional manual. The machine; appeared to lack power gnd had to be rested fot short .periods to recharge itself. While operating it under the instructions of the ‘foremati, a Mr Wards, the plaintiff had said he had made a 90-degree left-hand turn and on the completion of this the forklift overturned on to its right-hand side, striking the plaintiff on the right thigh as he tried to jump clear. Other witnesses had given conflicting evidence, said the judgment. Mr Wards said he gave instructions to the plaintiff on how to drive the Vehicle, particularly in relation to its Stability. He had said that not more 1 than half an hour before the accident he had warned the plaintiff about “acting the gbat” when he saw him turning the vehicle in small circles faster than what was prudent in Mr Wards's view. Another witness, Mr Wilson, having observed the plaintiff putting the machine

I through a very tight turn, had told the plaintiff that' I what he was doing was “a I quick way of dying.” Mr Wilson thought the vehicle was then travelling at a medium speed, but it was hisi impression that if the speed was increased there would be a danger of the vehicle overturning, said the judgment. His Honour said both these witnesses appeared restrained and impartial and he accepted their evidence as to the manner in which the plaintiff was driving the forklift. “Two things became patent at the trial. The first, that the vehicle was not driving from the single rear wheel (the statement of claim alleged), but from the two front wheels, and secondly, that the overturning of the vehicle could not have been caused by the; rear wheel being caught in a] hole or other obstruction (as; was also alleged in the statement of claim),” said the judgment. The witnessess, Messrs Wards and Wilson, and another. Mr Ransby, had given evidence that there were no pot holes in the surface of the yard at the time, and a contractor had given evidence on how he had sealed the yard only a month before the accident. Completing his judgment, his Honour said that the thing most closely associ-: ated with the plaintiff’s injury was the driving of the' forklift, but that was wholly under his control. “The mere circumstances that the driving took place in the defend- 1 ant’s yard and' that the defendant was the plaintiff's employer does not seem to me to give rise to any such inference as Mr Willy would have me draw and 1 hold against the plaintiff on this approach,” he said. It was also alleged that the defendant failed to exercise' the common duty' .of care owed to the plaintiff in that the ground of the defendant’s premises was not reasonably fit for the : purpose of driving the forkl- ; ift there. “My earlier findings cover the questions of fact upon which this allegation depends and those findings are unfavourable to the plantiff’s case.” he said. He found that the ground was fit for driving the forklift.