Truck driver's fall was his own fault, court says

Court overturns ruling that held a trucking company liable for a driver who fell off his prime mover

By Brad Gardner | August 18, 2010

A trucking company has won its fight to overturn a ruling that held it partially responsible for a driver who fell from his prime mover.

Lewington’s Transport appealed a Supreme Court decision that attributed 30 percent negligence to the operator when Shane William Mayhew fell from steps situated between the cabin and trailer of the Kenworth truck.

Mayhew suffered leg and back injuries after he wrongly assumed he was standing on one of the steps and let go of a handhold, falling into a gutter. He was awarded $762,825.

But the Supreme Court of Appeal ruled that the incident "is a classical case of mere misjudgement not amounting to contributory negligence".

Judges Marcia Neave and David Beach and Chief Justice Louise Warren ruled Mayhew did not ensure his footing was secure before releasing his grip on a handhold.

"It follows that the jury’s finding of contributory negligence cannot stand," the ruling says.

Mayhew also had an inadequate grip on the handhold, with the court saying there was no evidence to show he would have been able to prevent his fall had he not let go.

"For this further reason, the jury’s finding of contributory negligence cannot stand," Neave, Beach and Warren wrote in their ruling.

But the court did criticise the poor design of the steps, which were obscured because of a cylindrical tank protruding between them.

The bottom step was also recessed and not aligned with the top step and was shorter and narrower because its sides were cut at an angle.

"The position, alignment and size of step two with its cutaway sides was patently deficient…The accident that occurred was one of a kind that was inevitable would occur at some time," Neave, Beach and Warren found.

Mayhew’s lawyer argued the company had a duty to its driver to protect him against injury and provide safe equipment.

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