What happened

In 2008, the plaintiff was returning from the site office to his truck after delivering fuel when a forklift struck him from behind. He knew forklifts operated on the site and was wearing earplugs. Beyond the line of safety cones there was no segregated pedestrian route.

The issues

After the earlier appeal decision overturned the finding of no contributory negligence, this judgment determined the reduction. The Court compared the occupier's safety arrangements and the driver's failure to keep a lookout with the plaintiff's failure to look adequately before entering an area used by forklifts.

The court's decision

Basten and Emmett JJA assessed contributory negligence at 30%; McColl JA would have assessed it at 10%. The majority substituted judgment for AUD 717,970, representing 70% of the damages as adjusted on appeal. Each party was left to bear its own appeal costs.

Understanding the figures

Damages as adjusted on appeal before contributory negligence were AUD 1,025,672. After the 30% reduction, judgment was entered for AUD 717,970, effective from the trial judgment date of 13 September 2012. This is not a net recovery inclusive of appeal costs.

What this case shows

Apportionment requires comparison of the parties' responsibility for the accident. Deficient site segregation and negligent operation of heavy equipment did not exclude contributory negligence; equally, a forklift warning did not absolve the occupier of its own responsibilities.

Why another case may differ

Its workplace setting must be distinguished from its statutory classification: the reasons addressed provisions of the Motor Accidents Compensation Act 1999 and Civil Liability Act 2002 then applicable. The 30% reduction is not a tariff for forklift or pedestrian accidents. The decision must be read with the 2013 appeal reasons on liability and individual damages heads.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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