Cook v Fishburn[2004] QSC 14

SUPREME COURT OF QUEENSLAND

[1] MULLINS J:  In this proceeding the plaintiff claims damages for negligence for personal injuries arising out of an accident on 11 October 1995 when the plaintiff was riding his bicycle and was run over by an Isuzu truck registered number 297 DBL (“the truck”), belonging to the second defendant and being driven by its employee the first defendant.  The third defendant was the compulsory third party insurer of the truck at the date of the accident.  The question of liability was ordered to be tried separately and before the question of the determination of the quantum of the plaintiff’s damages.  The trial which took place on 5 and 6 February 2004 was therefore concerned only with the issue of liability.

Witnesses

[2] The only evidence given on behalf of the plaintiff was that of the plaintiff himself and Mr Kevin Beattie, the law clerk employed by the plaintiff’s solicitors who had taken photographs of the intersection at which the accident occurred.

[3] The first defendant gave evidence.  The defendants relied on the evidence of other drivers in the vicinity, Mr Wybrew and Mr Knight and a pedestrian, Mrs Eddie.  The defendants also called Queensland Transport Inspector Mr Paul Heffernan who arrived at the accident scene at 4.25pm, Mr Kim Staples, one of the ambulance officers who attended the plaintiff at the accident and Mr Colin Jensen who was the second defendant’s leading hand at the date of the accident and responsible for loading the truck.  Expert evidence was given by consulting transport and traffic engineer, Mr Tony Eppell. 

Issue

[4] It is alleged in the further amended statement of claim that at or about 3.45 pm on 11 October 1995 the truck was stationary in the far left of the non-turning lanes of the northbound traffic in Wardoo Street at the intersection with Southport-Nerang Road at Southport.  It is alleged that the plaintiff rode his bicycle alongside and to the left of the truck, the first defendant then drove the truck into and across the intersection, when the lights changed to green, and as the truck accelerated, a loop in strapping or a loose strap and hook on the side of the truck snared the right handlebar of the plaintiff’s bicycle, causing the truck to drag the bicycle with it.  The plaintiff alleges that he was unable to free the handlebar from the strapping and the bicycle fell, throwing the plaintiff under the truck and the plaintiff was run over by the rear wheels of the truck.

[5] The defendants deny that the accident occurred in the manner alleged by the plaintiff.  The defendants assert that the plaintiff stopped riding his bicycle, when at the intersection, to the left of and alongside the truck, and that the plaintiff held onto and/or leant on the truck and continued to do so after the truck accelerated away.

The truck

[6] The model of the truck is FVR900.  At the date of the accident, the truck was relatively new and had travelled only about 4,400kms.  Photographs were taken of the truck by Mr Heffernan when he arrived at the scene of the accident.  They are Exs 9 to 13.  The relative size of the truck can be gathered from Exs 9 and 12.  Ex 13 shows the mirror fixed on the outside of the passenger side of the truck.

[7] The truck has a vinyl sheet or curtain covering the metal frame on each side of the truck.  This vinyl curtain is held in place at the bottom of the curtain on each side of the truck by 11 straps.  Each strap has a hook at its bottom which can hook onto the tie rail which is clearly visible in the photograph which is Ex 9 and also the photographs which comprise Ex 2.  Figure 1 in the report of Mr Eppell (Ex 16) also shows the tie rail and the relationship of the strap and hook with the tie rail. 

[8] Each strap also incorporates a latch type mechanism at the top of the strap which enables the strap to be tightened, so that when the hook is on the tie rail, the strap can be tightened and locked into place, in order to hold the curtain taut. 

[9] When the latch is applied, it reduces the length of the strap.  When the strap is taut and it is then unlatched, the hook on the strap hangs just below the tie rail.  It is possible for the strap to extend substantially below the tie rail.  The procedure to lower the strap involves feeding the strap through the latch.  Raising the strap from a lowered point involves feeding the strap through the latch in the reverse direction.  Extending the strap below the tie rail requires a deliberate action, separate from and consequent to, undoing the latch to unhook the strap from the tie rail.

[10] The truck has a door at the back of the tray.  The truck was used for carrying freight.  It is not known what type of freight the truck carried on the day of the accident.  Most of the time the truck was used for carrying palletised freight which was loaded and unloaded through the back door, using a pallet jack.  At the time the accident occurred, the first defendant was driving the truck back to base.  He does not recall that there was any freight in the truck.  It is likely that it was empty.          

Evidence of the plaintiff

[11] At the date of the accident the plaintiff was a month short of his 15th birthday.  He was riding his bicycle home from school over a route which he had been travelling for almost 2 years.  He was proposing to ride through the intersection, travelling in a northerly direction.  The road inclined upwards towards the intersection in the direction in which the plaintiff was travelling.  The plaintiff stated in his evidence in chief:

“As I approached the intersection coming down to the bottom of the hill I noticed the lights were red.  With those lights being red I was going up the hill concentrating on the lights coming up beside the truck on my right-hand side.  As I reached just to the back of the cabin of the truck the lights changed green.  I took off and as I was taking off the truck moved off the intersection.  As I was going about a quarter of the way across the intersection I noticed that the strap had latched on to my right-hand handlebar.  My handlebars were getting pulled in towards the truck, so I struggled with my left hand to straighten up my steering and then I eventually lost control and went over my handlebars on my bike.”

[12] The strap referred to by the plaintiff could be one of the straps on the passenger side of the truck which holds the curtain of the truck in place by being hooked onto the tie rail.  The plaintiff also stated:

“… all I remember was grabbing the material part of the strap to give lever on my handlebars to relieve from my handlebars, but -----.”

[13] The plaintiff stated that he travelled about 2 metres or about a quarter to halfway through the intersection between the time when the handlebars became entangled and when he came off the bicycle.  The plaintiff recalled blacking out for a short period of time between losing control of his bicycle and when he regained consciousness as he was lying on the road.

[14] The plaintiff estimated that, when he was alongside the truck, before moving through the intersection, the gap between the far right of his handlebar and the truck was about half a metre.

[15] In cross examination, the plaintiff stated that he did not stop his bicycle at any point, before travelling through the intersection and that he did not touch the side of the truck.  He stated that at the time he realised that his bicycle was caught by the strap, he was in line with about the middle of the tray part of the truck.  When asked whether that was half way between the two sets of wheels, he stated:

“Maybe just in front of halfway or on halfway.  I can’t really recall.”

[16] The plaintiff was also asked in cross-examination to describe what part of the strap caught the handlebar, he stated:

“The hard part of the strap.  But as I said, the only part I saw of the accident was the material part, because that was the part that I was trying to – all I knew is it latched on to my handlebar and I was trying to free myself by pulling that part through to gain leverage to break free from the truck.”

When it was put to the plaintiff that he was not sure whether or not it was the metal part that had caught the handlebar, he stated:

“I recall a hard hook catching the handlebars, yes.”

[17] The photographs in Ex 2 were taken on 25 February 2002 and show the plaintiff’s bicycle.   The handgrips that were on the handlebars at the time of the accident were no longer on the handlebars, when those photographs were taken.  The plaintiff also described the bicycle as having deteriorated since the accident.  The bicycle was used by the plaintiff’s younger brother subsequent to the accident.  The bicycle has straight handlebars.  The height of the handlebars can be adjusted on the bicycle.  The plaintiff stated that the height of the handlebars shown in the photographs in Ex 2 was about the same height at the time of the accident which he also stated had been set for him just below the specification of the maximum height for the handlebars on the bicycle.  The photographs in Ex 2 show the handlebars just below the height of the tie rail.

[18] The plaintiff stated that he was in shock by the time the ambulance arrived after the accident.  The plaintiff can recall answering questions that he was asked by the ambulance officer.  The Queensland Ambulance Service Report (Ex 14) shows that Mr Staples attended the plaintiff at the scene between 3.52pm and 3.59pm.  Evidence was given by Mr Staples of taking a history from the plaintiff which was to the effect that the plaintiff was riding a bicycle and believed that the truck may have clipped his back tyre, causing a fall.  This history is recorded on Ex 14.  Mr Staples also had noted that the plaintiff was conscious with a Glasgow coma score of 14 (compared to a Glasgow coma score of 15 for ordinary consciousness).  The plaintiff stated in evidence that he did not recall saying to the ambulance officer what was recorded by Mr Staples as having been said by the plaintiff.

Evidence of the first defendant

[19] The first defendant stated that, as the lights at the intersection had turned red, he  stopped at the intersection and was the first vehicle in the left hand lane in Wardoo Street travelling north.  When the lights turned green, the first defendant proceeded to drive the truck into the intersection.  He did not check the mirror on his left hand side before proceeding.  The first defendant stated that he heard “a bit of a crack as in a bit of glass or a bit of metal, some similar noise”.  The first defendant stated that a lady walking opposite him across the intersection indicated to him there was something wrong and he pulled the truck off the intersection and into the kerb outside of the intersection, so that it would not create a traffic hazard, and went back and saw the plaintiff lying on the ground.   The first defendant observed that the plaintiff was lying close to halfway across the intersection.

[20] In relation to what occurred after the accident, the following exchanges took place in evidence-in-chief:

“Did you ever go to the left-hand side of the truck?--  Not to my knowledge, no.

Did you-----?--  I had no reason to.

Where you had parked it, was it in plain view as far as you could tell of those-----?--  Knowing that intersection reasonably well, it would have been on plain view – the left-hand side of the truck would have been in quite good view to vehicles turning at the intersection or any vehicles stationed at the intersection heading east.

…

Do you recall whether anybody suggested to you that a strap on the side of the truck might have been involved?--  Not to my knowledge.”

[21] In cross-examination, the first defendant did not agree with the suggestion that at the time of the accident there was a strap loose on the left hand side of the truck.  The following exchange took place:

“If it was suggested to you that you had checked the left-hand side of your truck subsequent to the accident to make sure that the straps and ensure that any straps were tightly fastened, what would your comment to that be?--  There was no guarantees that I wouldn’t have done so prior to setting off back to base in the first place to make sure everything was strapped down properly.”

That question was not particularly clear, and the answer does not appear to be responsive, but cross-examination of the first defendant on that topic was not pursued.  In re-examination, the topic was followed up:

“You were asked about after the accident going back to check the left-hand side of your truck and whether you may or may not have secured the straps after the accident had occurred.  Are you able to tell her Honour whether you now recall whether you did or did not do that?--  I didn’t manhandle the straps after the accident at all on either side of the truck, anything, whatsoever.”

[22] The first defendant could not be precise about the cargo which he had carried on the day of the accident and whether, or not, it had been necessary to load or unload the truck by using the side access, rather than the rear door.  It was not necessary to touch the hooks, if the truck was loaded or unloaded through the rear doors.  The first defendant could say that at that time the hooks were not used “very often”. 

[23] The first defendant referred to his practice prior to departure each day of walking around the truck to make sure it was in a roadworthy condition and that nothing was hanging off it.  He could not recall doing that on the morning of the accident.  The first defendant’s evidence as to this practice was confirmed by Mr Jensen who described the requirement of the second defendant that before any vehicle left the depot, it had to be checked by the driver to ensure that it was secured and locked and, in particular, all straps and curtains had to be tight, which required the straps to be checked.  It was Mr Jensen’s observation that the first defendant always checked his truck, as required, although he could not now say whether the truck was checked on the day of the accident.   Mr Jensen could also confirm that when the truck was loaded through the back door, there was no need to deal with any of the straps or the hooks along the side of the truck and that in late 1995 most of the loading was done through the back door and it would have only been about once every 2 months that freight was not loaded through the back door.

[24] The first defendant stated that if a hook had been undone whilst he was driving, he would have expected to hear it banging against the tie rail or, if it meant the curtain was not tied down properly, he would have expected an air bulge in the curtain.  The first defendant did not observe any indication prior to the accident that a hook was undone and he stated “They weren’t undone to my knowledge”.

[25] Mr Heffernan did not arrive at the scene of the accident, until almost 25 minutes after the ambulance had departed with the plaintiff.  The photographs taken by Mr Heffernan show that at that stage there was no loose strap or unlatched strap on the passenger side of the truck.   That also accorded with Mr Hefferman’s recollection.  He was also able to state that he observed no damage to the straps or the tie rail.  Mr Hefferman also observed that the tyres of the truck were inflated, although he did not check whether the tyres were inflated to a recommended standard.

Evidence of the witnesses who saw the accident

[26] Mrs Eddie had crossed Wardoo Street from east to west on the northern side of the intersection and was standing on the pedestrian island at the north west corner of the intersection, when she noticed the truck and the cyclist both facing the red light in Wardoo Street.  Ex 3 shows the view which Mrs Eddie had of the road, where the truck was stopped.  Mrs Eddie described both the truck and the cyclist as stationary.  Mrs Eddie stated:

“Well, when I first saw the situation, the cyclist was holding on to the truck right from the first time I saw them.

Okay?—And, you know, somewhere, like, behind the passenger door somewhere along the side of the truck holding on there.”

[27] Mrs Eddie could not recall exactly where on the passenger side of the truck the plaintiff was holding.  Mrs Eddie stated that she was probably “watching the situation” (when both the truck and the cyclist were stationary) for about 15 to 20 seconds.  When the lights changed, Mrs Eddie was asked what she saw and she stated:

“The truck headed off slowly.  The boy was holding on.  He has – you can see from his face there’s difficulty in the situation.  He is not being able to keep up momentum with the truck, and then before too long he loses balance or whatever, and he and the bike go under, and the back wheels of the truck go over him.”

[28] Upon the lights changing, Mrs Eddie herself commenced to cross Southport-Nerang Road, and the truck was travelling in the direction towards her.  She stated that she got closer to the truck and was “very close” at the point of impact.  As the truck and the cyclist were travelling towards Mrs Eddie, she stated that she kept casting her eyes between the driver and the cyclist to see whether the driver was aware of the cyclist’s presence. 

[29] Mrs Eddie did not see any loose strapping on the passenger side of the truck and did not observe the plaintiff struggling, in order to release himself from anything that had caught on his bicycle. 

[30] Mrs Eddie estimated that the distance between the plaintiff and the truck when she observed the plaintiff holding onto the truck was about three-quarters of a metre.  When it was suggested to Mrs Eddie that the plaintiff was closer to the truck, she stated:

“All I know it’s within an arm span because he’s holding on and I don’t – his arm would’ve been a little bit – not 100 percent straight; so, it could’ve been half a metre.”

When Mrs Eddie was asked to specify where the plaintiff’s arm was in the context of whether it was at head height or shoulder height, she stated “I’d probably say more head height”.  Mrs Eddie stated that the distance between the cyclist and the truck remained fairly uniform – half a metre or three-quarters of a metre – until the cyclist lost his balance. 

[31] Mr Knight was the driver of the vehicle in the left hand lane immediately behind the truck.  Mr Knight approached the intersection when the lights were red and stopped behind the truck.  He estimated that he left a distance of 2 metres, in case the truck rolled back onto his BMW. 

[32] Whilst stopped, Mr Knight observed the cyclist pass him on his left and he described that the cyclist stopped and “leaned on the truck about halfway along the truck”.  Mr Knight stated that the plaintiff was “very close” to the side of the truck.  Mr Knight conceded that because of the position of his vehicle behind the truck, he could not see the face of the passenger side of the truck, but was limited to seeing the plaintiff’s torso on the bicycle and what he could see of the wheels and bottom half of the bicycle from looking under the truck.  He also conceded that he did not see the actual point where the plaintiff was holding onto the truck, as he could not see what the plaintiff’s right hand was touching.

[33] Mr Knight stated that, when the truck moved off, he “saw the boy attempt to get a pull on the truck up the slight rise that exists at that intersection”.  He saw the truck and the cyclist moving together.  Mr Knight stated that he saw the plaintiff lose his balance and fall under the back wheel of the truck.  Mr Knight stated that when the truck moved forward, it increased his view dramatically, and he could see what was happening in front of him because of that.  Mr Knight did not drive his car through the intersection, when the lights turned green, because of what was happening in front of him.  After the plaintiff fell under the wheel, Mr Knight got out of his car to assist. 

[34] Mr Knight observed the truck move across from where the plaintiff fell which he described was halfway between the start of the lights and the middle of the road and stated that the truck moved to the other side of the intersection, so as not to block the traffic that would flow east/west and stopped.  Mr Knight did not see any loose straps on the left hand side of the truck at any stage.  Mr Knight recalled that the handlebars of the bicycle were below the height of the tie rail and did not agree with the suggestion put to him that the handlebars were at a similar height approximately to the height of the tie rail on the truck. 

[35] Mr Wybrew was the driver of the Toyota Land Cruiser that was behind Mr Knight’s car in the left hand lane and to the left of, but still within, that lane.  Mr Wybrew stopped at the red light and observed a cyclist passing him, whilst he was stopped.  He then saw that the bicycle was stationary about halfway up the truck on its left hand side.  Mr Wybrew estimated that he was waiting at the lights for 30 seconds, before they changed, and that the cyclist would have been there 10 or 20 seconds before the light changed.  Mr Wybrew stated that the plaintiff was holding onto the side of the truck, but could not say exactly what he was holding onto.  Mr Wybrew stated that he had seen the cyclist reach out and grab the truck, although he conceded that he could not see past the plaintiff’s right elbow.  The following exchange took place in cross-examination:

“I suggest you couldn’t see – you weren’t in a position to see what, if anything, he was doing with the upper right part of his body?--  No.  He was stretched right out as far away from the truck as he probably could, but holding on and maintaining.  I shouldn’t have said ‘holding on’.  His arm was outstretched towards the truck, which gave me a good view of his body, especially when the truck took off.” 

[36] When the lights changed, Mr Wybrew described that “the boy was looking over to his left at whatever, and the truck driver just drove off as he would … and I noticed the boy had – was jerked forward”.  Mr  Wybrew stated that the plaintiff let go very soon after and then went under the truck.  Mr Wybrew did not observe the plaintiff struggling with anything.  The following exchange took place in evidence-in-chief:

“Were you in a position to observe if he had have been struggling with trying to break himself loose from anything?--  I could see the whole boy up to about the elbow because – as the bike drifted away from the truck, which give me a perfect view except I could not see what he was hanging on to, but it was the truck in a straight arm.  It was just all so clear.”

[37] Mr Wybrew did not see any straps hanging down from the truck or out of place.  Mr Wybrew left his vehicle, where he was stopped at the lights and did not proceed through the intersection.  He stated that directly after the accident the truck was parked in the middle of the intersection.  He stayed about 3 to 5 minutes and stated that the truck was not moved whilst he was there.

[38] Mr Beattie stated that he had taken the photograph (Ex 5) standing in the left hand lane of Wardoo Street facing north where the driver of the fourth vehicle in line from the intersection would have been.  The line of traffic shown in the left hand lane of Wardoo Street in Ex 5 comprised two trucks, the size of which are difficult to estimate from the photograph, and a red utility. 

[39] Each of Mr Knight and Mr Wybrew was cross-examined by reference to what could be seen on the passenger side of the truck shown in Ex 5.  It was apparent from the evidence given by each of Mr Knight and Mr Wybrew that each accepted that his view of the plaintiff on the bicycle was not complete, when the light was red, but each made the point (which I accept) that his view improved when the truck started to move.  It is also apparent that what is shown in Ex 5 did not necessarily replicate the exact size and position of each of the vehicles in the left hand lane immediately before the accident.      

Expert evidence

[40] Mr Eppell inspected the truck and the bicycle on 9 September 2003 and had a further inspection of the truck on 15 September 2003.  At the time of the inspection of the bicycle, the handlebars had been extended approximately 43mm above the point which is marked on the stem of the bicycle as the point of maximum extension.  Marks on the stem suggested to Mr Eppell that the handlebars had previously been set to two different levels, one 50mm lower and the other 78mm lower than their height on inspection. 

[41] Mr Eppell was able to conclude that on the measured height of the handlebars, regardless of the handlebar height, it was impossible for the tie down strap hook to snare the cycle handlebars, unless the straps were extended below their normal unlatched position.  He concluded that it was not impossible for the snaring of the handlebars to have occurred, but it was an unlikely event, as the following circumstances would have needed to have occurred for the handlebar to become snared on the hook:

“- the tie-down strap must have been unhooked from the tie bar and deliberately extended beyond the normal unlatched position, a time and effort consuming exercise of no apparent benefit – this appears unlikely;

-the strap hook must have rotated through 90° to align perfectly with the handlebars;

-if the cyclist was not effectively touching the truck when hooking occurred, that is the handlebar was not directly below the truck tray, the strap must have swung out laterally from the truck where speed was slow and the surface appeared to be level and even – this appears unlikely; and

-the strap swing angle would need to have exactly corresponded to the distance the rider was from the vehicle.”

[42] Mr Eppell prepared a supplementary report (Ex 17) after a suggestion from the plaintiff’s solicitors that the handlebar height may have been greater than that measured at Mr Eppell’s inspection.  Even allowing for the increased height, Mr Eppell remained of the view that the snaring of the handlebars would have been an unlikely event, because of the need for the circumstances identified in Ex 16 to have occurred at the same time. 

[43] In Table 3 in Ex 16 Mr Eppell set out his calculation of the required strap length to snare the handlebar, if the handlebar was adjacent to the truck or 103mm from the truck.  In each case the strap would need to have been extended beyond its normal length.  When asked what the position would have been, if the edge of the right handlebar was half a metre from the side of the truck, Mr Eppell stated that the likelihood of the hook snaring the handlebar would be “very slim because the hook would have had to have swung out that far and the handlebar to be as high as that hook”.

[44] Mr Eppell agreed in cross-examination that the higher the handlebars were and the closer the edge of the handlebar was to the side of the truck, the more likely it was that the accident may have occurred by the hook becoming ensnared.  Mr Eppell conceded that when he checked the height of the bicycle at the inspection, the tyres were not inflated, but stated that he lifted the bicycle slightly to try to get the impression of the height it would have been with the tyres inflated. 

[45] In Table 1 of Ex 16 Mr Eppell set out the hook height, on the basis of various positions of the straps.  The average hook height when the strap was in the unhooked position and unlatched, but not extended, was 1,015mm with the range being from 1,005mm to 1,030mm.  Mr Eppell measured the height of the handlebars at inspection as 986mm above the ground to the lower cusp of the outer end of the handlebar.  He agreed that if the strap was loose and at the lowest end of the range of 1,005mm, there was only a 20mm difference between the bottom of the handlebar and the unhooked strap.  Mr Eppell conceded that when the truck accelerated from a standing start up the slight incline, there could have been a slight lifting of the front of the truck and a slight depression of the rear, but that it would be very minimal and he did not know whether it could be measured “as a whole number of millimetres”.  Mr Eppell conceded that if the strap were fully extended, it would not have mattered how high the handlebar was, as there would have been the capacity for the strap to get under the handlebar.  Mr Eppell remained of the view, however, even taking into account variations in height due to the inflation of tyres of both the truck and the bicycle and the possible change in height as a result of the acceleration process, there was still a number of parameters which he had identified in his reports that had to be met for snaring to occur. 

Findings

[46] The witnesses were giving evidence of events that occurred over 8 years prior to the trial.  Mrs Eddie gave her evidence frankly and was quite prepared to concede when there were aspects of the events that she did not recall.  Mrs Eddie was in an excellent position to observe the passenger side of the truck.  Her attention was caught when she saw the plaintiff next to the truck in what she described as “the situation” and explains why she kept both under observation until she started crossing and while she crossed the intersection.  Notwithstanding the lapse of time since the accident, the accident unfolded in front of Mrs Eddie’s eyes and it is not surprising that she has maintained a good recollection of what she saw. 

[47] Although each of Mr Knight and Mr Wybrew did not have an unobstructed view of the plaintiff whilst each was stopped at the red light, each of their opportunities for observation improved as the truck moved forward.  I accept that each of them saw the plaintiff stationary at the lights and from what each observed about the plaintiff’s position on his bicycle in relation to the truck, it was reasonable for each to conclude from their observations that the plaintiff was holding onto the truck. 

[48] In the light of the evidence of Mrs Eddie which I find supported by the evidence of both Mr Knight and Mr Wybrew, I do not accept the plaintiff’s evidence that he did not stop his bicycle at the lights, but rode through the intersection next to the truck.  As a result of Mrs Eddie’s evidence as to what she saw of the plaintiff holding onto the truck which is also supported by the evidence of Mr Knight and Mr Wybrew, I am not satisfied on the balance of probabilities that the cause of the accident was the right handlebar becoming entangled in a loop in the strap or a loose strap and hook on the passenger side of the truck.  I also find support for this rejection of the plaintiff’s version of events in the evidence of Mr Eppell.

[49] In light of the evidence of Mr Eppell, it is not necessary to make a finding as to the height of the handlebars at the time of the accident.  Mr Eppell’s reports show that a number of circumstances had to exist at the same time, in order for the hook on a strap that was loose to ensnare the handlebar.  Even allowing for the fact that there was an opportunity after the accident occurred and before the truck was inspected by Mr Heffernan for any loose strap to be restored to a latched position, I am not satisfied on the balance of probabilities that the plaintiff has shown that a strap was unhooked at the time of the accident or that there was an extended loose strap at the time of the accident.  The only evidence that there was a loose strap came from the plaintiff himself and the plaintiff was mistaken about other aspects of the events.  Although the first defendant did not have a clear recollection of the peripheral events that took place on the day of the accident, I refer from his work practices that were verified by Mr Jensen that it was unlikely that he was driving the truck with an unhooked or extended strap.  It is significant that for the accident to have occurred in the manner alleged by the plaintiff, the loose hook needed to rotate through an angle of 90 degrees in order to ensnare the handlebar.

[50] In coming to my conclusion against the plaintiff’s version, I have not placed any weight on the version of the accident recorded by Mr Staples at the scene of the accident, because of the circumstances in which it was obtained. 

Orders

[51] The defendants have therefore been successful on the issue of liability.  Although the trial was limited to the question of liability only, it follows from the plaintiff’s failure to prove that the accident occurred as a result of his right handlebar being ensnared by a strap or hook on the passenger side of the truck, that the plaintiff cannot succeed in his claim.  The order which should be made is that the proceeding be dismissed.

[52] I will hear submissions on the question of the costs of the proceeding.