The Townsville District Court has handed down a decision regarding the alleged negligence of a Council employed garbage truck driver.
Garbage truck litigation enthusiasts will no doubt recall the 2010 Supreme Court decision of Suncorp v Sichter. That case dealt with a man who suffered injury when he was caught in the mechanical arm of a garbage truck as it attempted to collect his bin. The critical issue for the Supreme Court in Sichter was whether the operation of the truck’s mechanical arm fell within the definition of “driving” under section 5 of the Motor Accident Insurance Act 1994. The Supreme Court found that the act did not constitute driving and therefore the relevant CTP policy did not respond.
The recent Townsville District Court case of Gorlick v Behan can be clearly distinguished from Sichter. Ms Gorlick alleged that she was injured as she attempted to evade a reversing garbage truck. In those circumstances, the MAIA clearly applied. The question for the Court therefore was simply whether the actions of the garbage truck driver constituted negligence.
On 28 October 2013, Ms Gorlick was resting in her house when she heard the Council garbage truck approaching. Realising that her wheelie bin was not on the kerb ready for collection, she rushed outside to meet the truck. By the time that Ms Gorlick had made it down to the bottom of her driveway with her bin, the garbage truck had already moved past her house.
The plaintiff informed the Court that she made eye contact with the driver of the garbage truck and made a gesture with her hand in an attempt to convey her intention to meet the truck on the other side of the street. After making the gesture, the plaintiff moved onto the road with her bin, behind the truck.
The driver of the garbage truck noticed Ms Gorlick with her bin but apparently failed to see (or at least interpret) her hand gesture. Consequently, the driver of the garbage truck began to reverse the truck back towards Ms Gorlick’s driveway with the intention of collecting the bin. Noticing that the truck was in fact reversing, Ms Gorlick quickly attempted to walk backwards up her driveway with her bin. In doing so she caught her heel on the edge of the driveway and fell. As Ms Gorlick tried to get up, she fell a second time, striking her head.
The truck driver had a very different recollection of events. According to the driver, after emptying the bin belonging to Ms Gorlick’s neighbour, having noticed Ms Gorlick, she reversed the truck slowly to a position where the cab of the truck was adjacent with Ms Gorlick who was, at all relevant times, standing in the centre of her driveway with her bin.
The truck driver told the Court that Ms Gorlick then took a few steps back from her bin and at that time must have clipped her heel because she fell, landing hard on her tailbone. The truck driver recalled that Ms Gorlick then tried to use her bin to pull herself up before she fell for a second time, hitting her head. At that time, the truck driver says that she left the cab of the truck to render assistance.
His Honour weighed up the two different versions and ultimately preferred that provided by Ms Gorlick. Accordingly, it was found that the driver had reversed the truck without reasonably considering the risk of harm posed to Ms Gorlick who she knew was somewhere in the vicinity of the rear of the truck. On that basis, the truck driver was deemed to have been negligent.
His Honour then considered the issue of contributory negligence. It was concluded that Ms Gorlick’s act of stepping behind the truck after attracting the driver’s attention presented a real risk of injury to herself. His Honour weighed up the competing causes of the accident and ultimately settled on a contributory negligence finding of 15%.
His Honour went on to assess quantum at $95,470.20, taking into account the 15% reduction for contributory negligence. It is worth noting that $65,000 of the total damages sum related to future economic loss. That is despite Ms Gorlick being employed at the time of trial, earning a high income (relative to her historical earnings) and his Honour concluding that Ms Gorlick was capable of remaining in her employment until her desired retirement age which was approximately 5 years from the date of trial.