Forklift operator's "indifference" costs Star Track Express $400,000 and ends truck driver’s career
By Brad Gardner | October 22, 2009
Star Track Express has been slapped with more than $400,000 in bills and a truck driver’s career has been cut short because of the “callous indifference” of a forklift operator.
Brian Raymond Bathis’ right hand was crushed in January 2000 by the demountable mezzanine deck of a truck trailer in an incident which the Queensland Supreme Court ruled could have been averted.
Bathis was working for TR Transport Services at the time and was relying on instructions from Star Track Express’ forklift driver, who is referred to in court documents as Mr Brosnan.
Justice John Byrne found Brosnan did not secure the deck correctly with the forks and chose not to tell Bathis about it when the driver began to manually remove the deck’s support holders.
Because Brosnan only placed the tips of the forks into a section of the deck rather than the necessary six to 12 inches under it, the 1.4 tonne deck fell as soon as Bathis moved one of the supports.
“Informed that the plaintiff [Bathis] was about to put himself in harm’s way, Mr Brosnan chose to remain silent. This was a considered decision,” Byrne says.
“Reflecting at the time on what could well happen to the plaintiff, ‘I just thought to myself’, he testified, ‘yeah if you’re stupid enough to put your hand under there it’s your own fault’.”
The incident has caused Bathis the loss of use in his hand, ongoing medical costs, depression and the expectation he will not be able to work beyond 50.
As such, Byrne awarded the driver $300,000 to cover the loss of future earning capacity, $65,000 for pain and suffering and $30,000 compensation including interest and superannuation.
Bathis also received $25,000 for future medical treatment and pharmaceuticals, while Star Track and the driver also reached an agreement on covering past medical expenses, which totalled $11,432.66.
Byrne says the driver would not have removed the holders had he known the deck was not secure and the deck would not have collapsed if Brosnan had secured it.
“Mr Brosnan was obliged to take reasonable care to prevent the occurrence of the foreseeable risk of injury to which he had exposed the plaintiff by his actions,” he says.
“The plaintiff suffered excruciating pain when the deck fell on his hand.”
The court dismissed the argument of contributory negligence by saying Bathis had no reason to expect Brosnan was using unsafe work methods.
“Misplaced reliance on Mr Brosnan, whose callous indifference could not reasonably have been anticipated, cannot fairly be characterised as contributory negligence,” Byrne ruled.
‘LIED ABOUT INCIDENT’
The court was told Brosnan tried to lie for fear of being blamed for the incident by claiming he had secured the deck correctly.
He had also suggested Bathis had been taking drugs on the morning of the incident. Byrne says the claim was withdrawn because “there was no foundation for that nasty imputation”.
Bathis has had surgery on his hand a number of times but can still not do basic tasks such as cooking, cleaning and ironing. In spite of ongoing pain and an inability to use his right hand to steer, he continues to drive trucks to financially support his family.
“The plaintiff’s determination to support his wife and children motivates him to continue despite the risk to his personal safety and the pain at day’s end,” Byrne says.
Despite this, law firm Rodgers, Barnes and Green, which represented Star Track, tried to claim Bathis should only be given $156,643 for loss of future earning capacity and $55,000 for pain and suffering.
Bathis’ wife encouraged him to quit the industry over concerns for his safety but the court was told truck driving is all he knows.