Gorlick v Behan – Townsville local hit by garbage truck
Published 12 Jul 2017
Practice Area: Motor Vehicle Accidents Claims, Slip & Fall Public Liability Claims
On 22 December 2016 his Honour Justice Durward of the District Court of Queensland passed down his judgement in Gorlick v Behan  QDC 357.
The defendant was an employee of Townsville City Council and the driver of a garbage truck.
The plaintiff was a 54-year-old woman who sustained a disc protrusion to her L5/S1 and burning sensations in both her legs and feet.
The incident involved a side loading compactor garbage truck which was driven by the defendant in the course of her employment. The defendant was collecting household garbage in a typical way by means of a mechanical lifting device attached to the side of the truck which lifted and tipped wheelie bins from the edge of the roadside curve into the top of the garbage compactor.
The plaintiff had taken her bins to the kerbside for it to be collected, after the truck had passed her driveway. How she arrived at that location and the route she took was in contention between the two parties and the major issue in contention in this matter. The Plaintiff was injured when the garbage truck reversed towards her and she tripped on her drive way attempting to escape the truck.
The plaintiff submitted that the first defendant had a duty of care to the plaintiff in taking reasonable care in keeping a proper lookout at all times while operating the vehicle. The plaintiff pleaded that there was not any contributory negligence on their behalf but if contributory negligence was found it should be assessed between 10% and 20%.
Defendant on the other hand pleaded that there was large inconsistencies in the plaintiff’s case and that there was no evidence to support her assertions. By contrast the defendant’s pleadings were established on all the evidence which was submitted. The defendant made submissions that on the basis of the evidence the first defendant was not reversing the truck inappropriately nor negligently however they submitted contributory negligence should be of 20%.
In his determination is honour Justice Durward described the duty of the driver of a motor vehicle as outlined in the matter of Manley v Alexander (2005) 80 ALJR 413, where Justice’s Gummow, Kirby and Hayne of the High Court of Australia commented:-
“Driving requires reasonable attention all that is happening on or near the roadway that may present a source of danger. And is much more often than not, that will require simultaneous attention to a consideration of, a number of different features, of what is already formulated, become to be head of the vehicle’s path.
Ultimately after hearing both competing accounts His Honour found on the balance of probabilities that the defendant negligent in her operation and control the truck.
In determining what level of contributory negligence applied in this case His Honour made the following observations; the defendant had seen the plaintiff in the rear view mirror and reversed in circumstances where it was unnecessary to do so which created a significant risk of injury and damage to the plaintiff.
In considering the contributory negligence of the plaintiff his Honour considered two separate High Court of Australia cases.
Penninton v Norris (1956) 96 CLR 10 where plaintiff was a pedestrian struck by a reversing car where the Plaintiff did not reasonable care of his own safety when crossing the road behind the vehicle. This attracted a contributory negligence of 20%
Anikan v Sierra  HCA 64 where the plaintiff dressed in entirely black clothing walk along the roadway at night and was struck by a bus resulting in a contributory negligence a portion of 25%
Ultimately His Honour found a proportion of 15% contributory negligence was adequate in this matter.
Upon review of the evidence His Honour found in favour of the Plaintiff awarding an amount of over $112,000.00 which was discounted by 15% leaving a final amount of over $95,000.00 being provided to the Plaintiff.
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