Zammit v Auto Team P/L

MEAGHER JA: This is an appeal by a disappointed plaintiff from a judgment by his Honour Judge Armitage, who awarded a verdict for the defendant. The case before his Honour arose out of an accident, which occurred on 28 June 1996. The plaintiff was working as a mechanic at the premises of the defendant at Rydalmere (which is a suburb of Sydney) doing alterations on what is called a Nissan Pathfinder (which is a motor vehicle, white in colour).

The plaintiff failed not because his Honour understood his story but did not believe it, but rather because he could not understand what story the plaintiff was trying to tell. My brethren had the same difficulty; and I do not think it unfair to say that so did counsel, even the appellant’s own counsel.

In his statement of claim, the plaintiff framed his action (which one can nearly overlook, was an action in negligence) in the following form: “On or about the 20th June 1996 the plaintiff was performing his work as a motor mechanic involving the compression of a spring-coil using a bar similar to a pinch bar. Thereafter a worker assisting the plaintiff was instructed by him to slide a rubber bump stop out of the compressed area and contrary to the said instructions the co-worker struck the bump stop using a sledge hammer and pinch bar thereby causing a jarring effect with the spring causing a sudden twisting force forcing the plaintiff to twist and fall to the ground.” Except for the facts that (a) there was a coil-spring underneath the body of the vehicle, and (b) in the middle of that spring was an object called a “bump stop”, this description of the accident bore no relation to the truth (whatever the truth may be). The plaintiff in his evidence before his Honour said as much, and his counsel re-iterated it before us, on appeal.

(I must say that, in my opinion, once the plaintiff abandoned the only narrative he had advanced in his pleadings, he had to fail. There was no question of the respondent waiving his right to insist that the matter be tried on the pleadings and electing to fight the plaintiff on some other ground.)

What the plaintiff said in evidence was that his job on the day of the accident was to install a “long range fuel tank” onto the vehicle in place of its original tank, while his assistant, Mr. Peter Antunac, had the job of fitting an object called a “poly airbag” onto the vehicle. This latter task necessitated the removal of the “bump stop” to which I have alluded, and was the central activity in the accident. The rest of his evidence is thus summarised by his Honour: “The plaintiff’s evidence is that shortly before the accident, he became involved in assisting with the poly airbags. He told Peter that the bump stop had to be removed from the spring that he Peter was working on. The plaintiff endeavoured to assist by using a retractable clamp on the spring. At a point of time shortly thereafter when the plaintiff had his back turned to Peter, he heard a loud thud, he felt himself being spun around to the right by something very hard, he grabbed at his right knee and fell to the ground.”

Another version was given by a spectator, who was working on an adjacent vehicle, a Mr Andrew Lilley, who said: “He turned and saw the plaintiff lying on the ground. Minutes before that he had looked towards the Pathfinder and had seen the plaintiff with a torsion bar in his hand three or four feet long by about one inch in width with grooves at each end. He saw that the front end of the bar was in the coil spring and he saw the plaintiff trying to lever the spring off its seat.”

A fourth version was given by the plaintiff when he applied for workers’ compensation.

A fifth version came from Mr Antunac, who was working with the plaintiff that day. It was thus summarised by his Honour: “They then lowered the rear axle low enough to release the springs but then encountered trouble in removing a coil spring. The vehicle was brand new and the spring was very stiff. They had trouble getting it over the bump stop. They decided to try to lever it down so the coil would slide from the bump stop. They looked at the instructions and it was then that Mr Antunac suggested that they lever the spring out. For that purpose they had to try to collapse the coil to release it from the position it was caught in. In order to do that the plaintiff took hold of a piece of pipe or a tyre lever about two and a half feet to three feet long and one inch to one and a half inches in width. He placed that implement through the coil and put downward pressure on it. At that time Mr Antunac was on the other side of the coil towards the front of the vehicle trying to pull the coil out. At that moment the coil spring released from the bump stop housing and the plaintiff hit the ground.”

An industrial safety expert supplied yet another version, which was, understandably, disregarded by his Honour, as it (a) was dependent on the accuracy of material supplied to him by the plaintiff, and (b) that material was disavowed by the plaintiff in evidence.

There may have been yet further versions.

Thus one does not know whether the plaintiff, at the critical moment, had in his hands a pinch bar, a torsion bar, spring compressors, or a retractable bar, (or whether Mr Antunac had one or more of these implements in his hands). One does not know whether the spring-coil was removed or not. One does not know whether a hammer was used (and if so, by whom), and it is not easy to see why anyone would want to use a hammer in any event either on the spring or on the rubber enclosing the “bump stop”.

With the evidence in this state of chaos, his Honour was not only not shown to be in error in his decision, but it is difficult to see why the decision was not inevitable.

The inevitability of the decision was understood by the fact that the plaintiff deliberately caused the problem about which he now complains. The correct way in which to install a “poly airbag” on a large white “Nissan Pathfinder” is to put the vehicle on a hoist, remove the back wheels, detach the bottom bolt from the shock absorbers, detach the pan hard rod, place the rear axle on vertical stands, then raise the vehicle further so as to permit the easy removal of the coil springs, which then enables one to remove the bump stop with a wrench. There was a manual which prescribed this method, and the plaintiff was familiar with it. In cross-examination he agreed that it was the “preferred” method. Thus his injuries are the result of his refusal to take the steps he knew he ought to take.

When, bit by bit, the Court put to counsel for the appellant the various obstacles to success in his appeal, he endeavoured to reformulate his case by transforming it into a lack-of-supervision case. Thus, it was put that a manager should have been present to direct him and Mr Antunac what to do. There are many reasons why we should not accede to this submission. One is that it was not the basis on which the plaintiff sought to fight the case below. But more substantially, the plaintiff had fraudulently persuaded the defendant that he had good technical qualifications as an engineer (including a University degree), and if he had in fact those qualifications he would not have needed any supervision.

In my opinion the appeal should be dismissed with costs.

HANDLEY JA : I agree generally with the reasons of Meagher JA and therefore that this appeal fails and should be dismissed with costs.

POWELL JA : I agree with Meagher JA.