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Truckie must accept responsibility for injury, court rules

Truck driver injured while shifting an unstable load for Seymour Freightlines must accept responsibility, court finds

By Brad Gardner | August 27, 2010

A Seymour Freightlines driver who injured himself while shifting an unstable load on a truck was partially negligent, the Supreme Court of Appeal has found.

The full bench of the court has upheld a 2008 Victorian County Court ruling that held Gary William Fassbender partially negligent for injuring his back while trying to move heavy boxes that had dislodged during transit.

Fassbender argued he should not have been considered negligent – which reduced his financial compensation for injuries – because Seymour required him to load the boxes without adequate means to secure them. They were also not part of the original load.

As such, Fassbender refused to take any responsibility for them. But the full bench ruled he had an obligation to ensure the truck was loaded correctly.

“It was the appellant’s evidence that he knew that configuring the load in the trailer and ensuring that it was secure was one of his responsibilities under the respondents’ system of work,” the full bench’s judgement reads.

“He had ‘washed his hands’ of the loading operation and took no part in the placement of the extra boxes. He agreed that he could have asked the forklift drivers to reconfigure the entire load, but that he had not done so.”

According to the court, there was evidence the forklift drivers were prepared to reload the truck to ensure the boxes were secure.

“It would have taken 20 minutes to unload enough of the truck to enable the load to be reconfigured to include the four extra boxes, and 20 minutes more to reload,” the full bench found.

“In our view, the jury was entitled to find that the appellant had, and knew that he had, an obligation to load the trailer safely or to ensure that it was safely loaded.”

Furthermore, the court questioned why Fassbender did not consider acquiring more equipment if he thought the boxes would move or be damaged during the trip. It says manual assistance, a forklift and equipment such as ropes would have been made available to drivers worried about the security of a load.

Seymour Freightlines argued Fassbender contributed to his injuries by failing to use common sense and not taking reasonable steps to care for his safety and properly secure the load.

The court also dismissed suggestions by Fassbender the company put the importance of the load ahead of the driver’s concerns.

Fassbender claimed he rang Seymour boss Wally Bohlmann to complain about the heavy boxes being added to the truck because there was no way to secure them.

According to the driver, Bohlmann told him not to “rock the boat” and instructed him accept the load because Seymour did not want to risk losing the work with the customer.

But the Court of Appeal says the jury in the previous matter was right to assume the conversation never occurred or differed to what Fassbender described.

“At the trial, he conceded that he no longer had direct recollection of important matters, such as the phone call to Mr Bohlmann from the second defendant’s premises…He agreed that drug us may have affected his memory,” the court judgement reads.

“Mr Bohlmann said that he could not recall any such telephone conversation. Indeed, the appellant’s evidence was the he could not remember the phone conversation either. His recollection was reconstruction based on what he would have done in the circumstances. He said he knew he would have made the call to Mr Bohlmann, because that was how he operated.”

Bohlmann told the court he would not have instructed a driver to carry a load if it could not be secured.

Fassbender was awarded $200,000 for pain and suffering and $377,000 in damages following the incident. The latter sum was reduced by 70 percent on the basis the driver was partially negligent.

The court heard Fassbender has undergone surgery for his injuries and lives with chronic pain. He is now unfit for work.

“Such was the pain caused by his injury that he had to be lowered from the back of the trailer by forklift,” court documents say.

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