Carmel (Charlie) Grima
7Mr Grima gave evidence that on the day he was injured he was working with Mr Tai-Rakena. The truck was located in the yard and they approached it to start unloading. However, before giving details of what happened on the day, Mr Grima described his usual practice.
"Q. You would come to the back of the truck?
A. Yeah.
Q. And the doors at that time would be closed?
A. Yeah.
Q. Then just take it slowly and tell us what you would do from there?
A. We opened the doors a bit and looked up to see if it's safe to open the doors.
Q. And then if it was safe, would you then open the doors?
A. We open the doors like, if it's normal, we see that it is safe for us we open the doors and carry on with the procedure and to do the work.
Q. And opening the doors did that mean taking them right around and latching them back?
A. And latch them on the side, yeah. If it is safe to us. If it is not safe we do not carry on with the doors."
8He then went on to describe what usually happened next as follows:
"Q. Now I am not dealing with this incident, I am talking about before.
A. Yeah, yeah, all right.
Q. If you looked up and there were five bars in position?
A. Yeah.
Q. What would you also see in addition to that fifth bar, would you see?
A. That fifth bar would give you the in your mind that there is rolls laying this way.
Q. That is, cross ways?
A. Yeah, that's right. It's on top of the standing ones.
Q. And if you also see the rolls?
A. That's right, if it's the one if you've got the bar they come to the bar with the movement of the truck, it is very important because there is a bar holding them.
Q. Yes, thank you. And so you would be satisfied that they were being held and you would open the doors?
A. Yeah, the doors, yeah.
Q. And what did the two of you then do?
A. We've got the pallets, next to the truck at the back like a platform. We unlatch the first one on the bottom and then we get on the platform we made with the pallets unlatch the other two, the other two bars and we leave the fourth one on, to hold the standing ones up. And then if there is the fifth one, we take the fifth one off and pull the rolls from the side.
Q. So alright and you do that while you are on the pallets?
A. Right.
Q. You'd removed the top bar and remove those top rolls first?
A. Rolls."
9Mr Grima continued on this topic as follows:
"Q. I will just go back for a moment.
A. Yeah.
Q. And in relation to the lowest bar, when would you have removed the lowest bar?
A. Before we put the pallets against the truck.
Q. Why is that?
A. Because when you're on the pallets, you can't bend down to get the thing from the underneath, of the truck.
Q. And if there were five bars in position, was there any problem in removing the lowest bar?
A. No, no.
Q. All right. Coming back then, you've told us you removed the fifth bar when you take off those top rolls and then you'd start removing the upright ones?
A. Yeah.
Q. Now how would you remove the upright one?
A. You've got the fourth bar on and we pull the rolls from underneath on the ground. After, we move the pallets from the top again because if the pallets been that way you can't reach from the pallet to the truck. Then we pull the rolls out on the floor, then we pack them on the floor then we get enough room to put the pallets, after we pull the standing ones, we start unloading the ones in the truck.
Q. So the end result is that the fourth bar held the uprights in position until you removed each one?
A. That's correct.
Q. From below the bar?
A. That's correct, yeah.
Q. And over the months before this incident, you did the work okay?
A. Yeah, no problem yeah."
10Mr Grima said that the number of rolls varied from load to load. The thickness of the rolls also varied. He would open the doors of the truck a small amount to look at the load. He said that if there were no fifth bar in place at the top of the load when he opened the doors and no roll on top of the upright rolls, he would open the doors completely if the load was secure. He would then proceed to unlatch the lowest bar, climb onto a stack of pallets, take the lower bars off, assuming that there were four of them in position securing the load, keeping the fourth in position. He would then proceed to take the vertical rolls out from underneath the remaining fourth bar.
11Mr Grima then went to what happened on the day:
"Q. And then you went to the back of the pan tech?
A. That's correct.
Q. Were there doors on the pan tech?
A. Yes.
Q. How many doors?
A. Two.
Q. What, did you both do something in relation to those doors?
A. We lift the handles up, we jarred the doors a bit and then look up. Then we decide everything will be safe then we carry on as normal.
Q. It's my fault, did you say that you unlocked the doors?
A. Yeah, we unlocked the door, jar the doors a bit and we looked up to see if everything is safe.
Q. As to unlocking the doors, were there locks on both doors?
A. Yeah, both. And you had to lift them up and open the doors.
Q. And in your recollection Robert did his side?
A. And I done on my side.
Q. So when you are looking at the truck from the back, who was on the right hand door?
A. Robert was on the right hand and I was on the left.
Q. And then you say you both opened the doors ajar?
A. Yeah, we looked up to see if there's anything unsafe up there.
Q. All right. When you looked up, did you form an opinion as to whether the load was secure or not?
A. When we opened the door to me it was secure till then because I couldn't see any rolls on top.
Q. Now dealing with rolls on top, was there a top bar, a fifth bar?
A. No, there wasn't.
Q. Were there any rolls on top of the verticals?
A. No, I couldn't see any either.
Q. So you saw those two things, did you?
A. Oh yeah.
Q. And as to the bars that were there, did you notice the number of bars did you remember at that stage?
A. Yeah, I remember, all right. Three bars that was there.
Q. Then as you say you formed the opinion that the load was safe?
A. Yeah.
Q. And you proceeded to open. Robert did the right hand door?
A. Yeah, and I had the left door."
12The actual events that caused Mr Grima's injuries were described by him in the following way:
"Q. What did you then do?
A. Then I hooked the third bar on the bottom.
Q. Sorry, hang on a minute, so you opened as far as you could and then what did you do?
A. And I walked back to the back of the truck. Then I hooked the third bar on the bottom. And I looked back up and I said to myself, how am I going to unload this? Because the fourth bar I couldn't see the fourth bar, for safety to myself.
Q. Yes?
A. Then that's what happened. I walked to Robert and as soon as I walked to Robert, the rolls fall from the top on me. That's all that I can remember."
13It is apparent from the transcript that references by Mr Grima to "hooking" the third bar and similar references to other bars were intended by him in the context of this evidence to be references to "unhooking". The evidence also establishes that the fourth bar is located at a height corresponding approximately to the top of a vertical roll or at a centre height of something in the order of a1.8 metres. .
14There was no loading dock at the Allied premises. To Mr Grima's knowledge, no rolls of underlay had ever previously fallen from an RFI loaded truck at the Allied premises when he had been unloading them in the way he described.
15On the day of his accident Mr Grima saw neither a fifth brace when he looked up into the truck with the doors ajar nor any rolls of underlay lying across the truck horizontally above and on top of the standing vertical rolls. His evidence clearly indicates that there was no fourth brace in place either. Photographs tendered depicting the scene immediately following the accident appear to confirm this. Mr Grima can be seen still lying prone on the ground at the rear of the truck, with the second and third braces in position but with the first brace unhooked on the left side and lying at an angle resting partly on the tray of the truck. No fourth of fifth brace is in position at all.
16Mr Grima agreed in cross-examination that it took about two to three hours to unload a truck. He also agreed that the loads that came from RFI arrived in the pantechnicons looking pretty much the same on each occasion when he opened the doors, always with a row of vertical rolls secured behind the braces. He agreed that they looked "pretty much the same as we see in the photographs [used] in the course of preparing this case." The day of the accident, however, was the first day he had ever seen a load supported or restrained by only three braces. Mr Grima confirmed his understanding that four braces meant that there was nothing (meaning no horizontal rolls) on top of the vertical stack, but five braces meant that there was. Mr Grima agreed that there were times when there were five braces in place when one could nevertheless not see the rolls behind the fifth brace. In other words, sometimes the rolls behind the fifth brace could be out of view. Mr Grima remained adamant, however, that "when it comes, the load, and there's only four bars, to us there is no rolls laying down on top." He confirmed that he would use the number of braces to indicate to him whether or not there were any horizontal rolls on top of the vertical rolls. For example:
"Q. ...Do you say that according to your experience, if there were four rows, you worked on the basis that there was nothing lying horizontally on top of the vertical rolls?
A. Yeah, that's correct, yeah."
17It was put to Mr Grima several times during his cross-examination that there had been a number of occasions upon which there had been loose horizontal rolls loaded on top of the vertical rolls, even with only four braces and without a fifth brace in position. He consistently rejected that proposition. For example:
"Q. But there had been some occasions, hadn't there, when there had been some loose rolls on top of the vertical rolls, even with four braces?
A. No, no.
Q. Never?
A. Always five rows, five bars across when there is rolls laying across."
18He later said, "if there's four bars to me when we open the doors, there is nothing laying down, thank you". Mr Grima went on to give the following evidence:
"Q. ...You say that on this occasion you noticed three bars in place when you opened the door as you say to 'ajar it open'?
A. That is correct.
Q. Is that what you saw?
A. Yeah.
Q. Three bars?
A. Yeah.
Q. That was something you had never seen before, wasn't it?
A. Never, yeah.
Q. And that was therefore unusual, wasn't it?
A. Yeah.
Q. And that must have indicated to you that something was wrong, mustn't it?
A. Yeah, it was wrong because if it was the four bar there, we carry on as normal, because we didn't see nothing on top.
Q. Yes. But notwithstanding the fact that there were only three bars in place, you continued, according to your evidence, to open the doors, that is you and Mr Tai-Rakena, that's correct isn't it?
A. Yeah, but we looked up and there was nothing unusual for us.
Q. But you see
A. When we jarred the door, when we jarred the door we looked up, because that's what we were told all the time to look up, to see if there was anything dangerous."
19Mr Grima went on to confirm that his usual system of unloading was to open the doors of the truck to where they were ajar and to look up into the truck. He said, "We look up to see if everything is cleared." He would do this specifically looking for the presence of horizontal rolls on top of the vertical rolls. That inspection was carried out whilst each of he and Mr Tai-Rakena had hold of the doors. Mr Grima operated upon the basis that if there were no rolls laying down on top of the vertical rolls he would "carry on as normal." He and his partner would always open the two doors of the truck together. It was usually necessary to stand upon a stack of pallets to unhook the braces. The stack of pallets was not yet in place behind the truck at the time that he had his accident. Mr Grima said that was because Mr Tai-Rakena had said to him that there were only three bars, which presumably could be reached.
20Mr Grima's cross-examiner returned to the issue of the five bars and the presence of horizontal rolls. He gave this evidence:
"Q. Now, you've agreed, haven't you, that there were some occasions with five braces where you couldn't necessarily see horizontal rolls when you opened the doors, that's so, isn't it?
A. When there is five bars, we always say there is rolls because you can see them because they put more than three or four laying down on it. It comes against the bar.
Q. Your evidence was that with five braces, that led you to believe that there were, or there must be horizontal rolls, even if you couldn't see them?
A. That's correct."
21He was also asked again about his usual procedure for unloading:
"Q. What procedure did you follow to remove the braces?
A. We go on top, we already take the bottom one off when it's five braces when it's five braces on. We take the bottom one off before we put the pallets. Now, we go on the pallets, the first one, we take the fifth one off, to pull the horizontal rolls out and put them on the ground. Then we take the third, the second and the third and leave the fourth one on. That's after that we pull the pallets out and we pull the rolls from under."
22The braces were released as the following evidence reveals:
"Q. And do you deny that the system that you in fact had in place, leading up to this accident, was that in order to release the braces, either Robert or you would stand on a single pallet which would be lifted by the tines of a forklift in order to remove the braces?
A. Sometimes did, sometimes not.
...
Q. Is that to say that sometimes you used the stack of ten pallets on either side and sometimes you used only a single pallet to undo the braces?
A. Sometime we go on the pallet and hook the bars, we call them bars. We take them off and we leave the fourth one on. And sometimes we stack the pallet. If we have got the pallets there, then we move them again till we take the rolls off, the ones standing up. Because if you have got the pallets behind the truck, you can't take the rolls out.
Q. You are saying that if you have the stacks of pallets in place, the ten pallets in place, you would not be able to remove the vertical underlays behind the braces or behind the fourth brace, as you described it?
A. That's correct. How are you going to pull them out? Explain to me. You ask me the question. How am I going to pull them out if the pallets is behind the truck?"
23Mr Grima denied the suggestion that he was making up that version of what occurred.
24RFI tendered portion of a statement served by Mr Grima in the course of these proceedings. It was relevantly in these terms:
"11. The rolls of carpet underlay are approximately 400mm in diameter and 2 metres in length. They would weigh about 30kg each. They were always packed in the trailers the following way:
11.4 There is then space on top of those rolls which is filled up by placing rolls horizontally across the top of the vertical rolls; and
12. Our usual method of unloading the trailers was as follows:
12.1 Open the double gates at the rear of the trailer;
12.2 Remove the bottom brace if it was safe to do so;
12.3 Remove the top brace, usually by standing on a pallet on the forklift tines;
12.4 Unload the horizontal rolls that were stacked on top of the vertical rolls one at a time;
12.5 Remove the remaining braces; and
12.6 Unload the remaining rolls."
25Mr Grima denied that there was any inconsistency between his statement and the earlier evidence that he had given. He said this:
"Q. Now, having been asked the questions that I have asked you, do you wish to withdraw the evidence that you gave; that is, ask the judge to forget the evidence that you gave about standing on ten pallets?
A. Well, if I done it before the accident, how am I going to withdraw it if I done it before?
Q. You appreciate that what I'm suggesting to you is that you have made that evidence up; you appreciate that, don't you?
A. I didn't make the thing up because I done it like I said. That's why I took it out because I done it before, when we unload the trucks with the rolls. Alright."
26Mr Grima was asked to explain what happened when he commenced to unload the truck. He said this:
"Q. And you opened them ajar at about the same time?
A. Yeah.
Q. And you looked up at the load?
A. Yeah.
Q. Now what did you look at?
A. At the top to see if there is any rolls crossed and I couldn't see nothing.
Q. When you say any rolls crossed, you meant you were looking for any rolls lying horizontally on the vertical rolls, is that correct?
A. That's correct.
Q. What did you see when you opened the doors?
A. Three bars.
Q. You'd never seen three bars before, had you?
A. Right.
Q. That didn't mean anything to you?
A. It means, because I stopped when I hooked the bottom and I stopped, I didn't carry on the procedure.
Q. Sorry, you say you stopped?
A. When I hooked the bottom bar, I didn't carry on."
27Mr Grima agreed that he had never seen only three braces before. He agreed, however, that he did not really pay any attention to the fact that there were only three braces until he came later on to unhook the bottom one. That was because if he had noticed that there were only three braces, when he had the doors ajar, it would have struck him as being something very unusual. He also agreed that it was probable that when he opened the doors he did not really take any notice of how many braces were there, because he was really focussed on what was at the top.
28Mr Grima then continued as follows:
"Q. And then what was the next thing that you did?
A. The next thing that I did, the bottom bar it was that loose, as soon as I wanted to when I looked up, I said, how we're going to for safety there is no fourth bar, how are we going to unload it? That's why I left it there, that's what it came to my mind.
Q. So when you came to release the bottom bar on the left hand side where you were, what was it that made you look up and notice for the first time it seems that there were only three bars?
A. Because when I looked, you always looked for the bar to hold the top of this, when they're standing. Because if they take the three off, you've got the safety one to hold them standing up when you are pulling them from underneath, from the floor. That's what made me look again and then I said, look there is no bar, to myself. Then as soon as I said that, for your information, as soon as I said that, they all rolled from the top and I was on the floor and I didn't see nothing else.
...
Q. Mr Grima, when was the first time you noticed there on this time there were only three bars?
A. I noticed the three bars when we opened the doors. Opened. Right, I went to unhook one and I saw three. I said, the fourth one's not there to hold the standing upright. That's when I left it there and I walked away. As soon as I walked to the right, the two rolls came from the top and that's how I finished, I didn't remember nothing else."
29He later said the following:
"Q. And so do you agree that when you first looked at the load, when you opened the doors that you should have been checking to make sure that first, that fourth bar was present?
A. That's when I said already and I say it again, that's when I said, I looked for my safety, and my part, my work, my safety. When there was no fourth bar, I stopped and walked away. And as soon as I walked away, the roll rolled on me from the top.
Q. Mr Grima, your evidence is that you noticed that the fourth bar was missing when you unlocked the left hand side of the first or bottom bar and not before?
A. Yeah, that's what I am saying, yeah.
Q. What I am suggesting to you is that it was important for you to check to see if the fourth bar was in place when you had the doors ajar, do you agree with that?
A. I agree. But why? If I agree when they be loaded it why didn't they put the bar themselves instead of leaving them under the rolls."
30Mr Grima denied that he was at fault in any way for not immediately noticing that the fourth brace was missing when he opened the doors:
" Q. And do you agree that if the fourth bar wasn't in place, when you opened the doors ajar with Mr Tai Rakena for the first time, that that was a serious mistake on your part?
A. No, there's no mistake on my part. Mistake on my part? When it's fallen from the top, it wasn't safely loaded.
Q. Do you agree that it was a mistake on your part not to have noticed that there was no fourth bar when you first opened the doors?
A. I already said it and I am going to say it again, when I hooked the first bar the bottom bar, I stopped because I noticed that the fourth one was missing.
...
Q. Mr Grima, you regarded the fourth bar as the most important bar in terms of your personal safety when it came to unloading the vertical underlay, didn't you?
A. Yeah.
Q. And when you opened the doors and had them ajar with Mr Tai Rakena was the time that you and he, undertook your safety inspection, correct?
A. Yeah.
Q. And it was at that time that you were looking for things which might be unsafe so far as the unloading process was concerned, correct?
A. I was looking at the top to see if there was any rolls horizontal. And there was none. Safety, for us right.
Q. You were looking, weren't you, for anything that might be unsafe about the load?
A. But the first thing we looked on the top. Because if there is no bar on top, as you open the door it's going to come on you. That's why we ajar the door and we look and there is no rolls horizontal. Now when we opened the doors I looked again, I didn't see the fourth bar. I'm human the same as everybody else."
31 Mr Grima also gave this evidence:
"Q. And so this inspection that you and Mr Tai-Rakena carried out each time you opened the doors was to make sure that there were bars in place to secure the load, correct?
A. That's correct.
Q. And if you noticed that there was anything wrong with the load, that is, if there weren't enough number of braces in place, what would you do?
A. That's why I stopped when I went to take the fifth the first bar off, I looked up again and there was no fourth bar, that's why I stopped.
Q. And if you had noticed that there was no fourth bar when you first had the doors ajar, you'd have closed the doors and stopped work, would you?
A. I tell my supervisor. Not shut the door."
32The cross-examiner took Mr Grima once again to the incident in question:
"Q. I want to take you to the point now where you loosened the brace on the left hand side, that is the bottom brace?
A. Yeah.
Q. You don't remember, do you, seeing anything other than according to your evidence, that there was no fourth brace present, correct?
A. Yeah.
Q. And because of evidence you've already given that meant according to your view you couldn't go on with the work, is that so?
A. Correct, yeah.
Q. And so you decided to stop work?
A. I didn't decide. I called and I went to Robert. I called Robert, to say there is only three bars. And when we looked up to see, as soon as I called Robert, I went from Robert from here to here, the two rolls came from the top to my back."
33Mr Grima agreed that not at any time in his statement did he say that he and Mr Tai-Rakena unlocked the doors and opened them ajar and carried out a visual inspection before opening them completely. Mr Grima denied that the first time he looked at the load and the braces to see if they were safe was when he was unhooking the bottom brace on the left hand side. He said, " No, no. I looked up, I already said it before, I looked when we jar the door."
34Penultimately in his cross-examination Mr Grima said this:
"Q. Just because there was no fifth bar, didn't mean it was safe for to you assume there was nothing on top of the vertical rolls, do you accept that?
A. I accept that, yeah. But I already looked and there was no rolls.
Q. But a safer way of looking was to keep one door locked and to, first of all, walk back away from the rear of the vehicle to see if you could see anything, do you agree you could have done that?
A. But how far can you go on flat ground?
Q. As far as you need to, do you agree?
A. No, I don't.
Q. Another way to have done it was to keep one door looked and to have used a forklift with a single pallet on it as a platform and to have been elevated, so that you could have undertaken an inspection at eye level of the top area above the vertical stack; that was possible, wasn't it?
A. What? What we done, we always done it that way. We looked, if it is safe to do it, carry on. If it's not, it's not.
Q. Do you agree that using the forklift and single pallet in the way I have suggested was something that was simple to do?
A. Yeah, it was simple to do. But like I said."
35Mr Grima was finally confronted with a series of propositions in cross-examination with which he dealt as follows:
"Q. Yesterday, when you were being asked questions by Mr Hennessy, about how the loads arrived from Regenfoam, you said that there were types where there were no horizontal rolls on top of the vertical rolls; do you remember saying that?
A. Yes.
Q. In fact, that is not the case at all, is it?
A. The case is, sometimes comes with four bars, sometimes comes with five bars. When it comes with four bars, there is no horizontal rolls.
Q. In fact, the way in which the trailers were always packed was that the space above the vertical rolls was filled by placing horizontal rolls?
A. But sometimes there was no horizontal rolls and no five bars.
Q. I want to be clear with you about this, Mr Grima. What I'm suggesting to you is the truth, is that the way in which the trailers were always packed was that there was space on top of the vertical rolls and that always there were horizontal rolls placed there?
A. Depends how many rolls on the order, because sometimes there is four, sometimes there is not.
Q. May I show you, please, MFI 1, that I took you to yesterday. And may I ask you to read to yourself, in paragraph numbered 11, the third sentence that commences: 'They were always', and then 11.4. If you feel you need to read other part of it, feel free to do so?
A. The eleventh paragraph?
Q. Yes. Read the words in the third sentence, commencing 'they were always', do you see that?
A. Yes.
Q. Read that sentence and then 11.4?
A. (Witness complied.) Yes.
Q. Do you agree that what is contained in the sentence in 11 and 11.4, that I have taken you to, is in fact the truth?
A. Well, it is here, yeah.
Q. Yes?
A. But sometimes there was the bars and sometimes there was no bars. That's why I said it from the start.
Q. No. What is in fact is the truth, I suggest to you, Mr Grima, as recorded in this statement, is that there were always horizontal rolls placed on top of the vertical rolls?
A. When there is the fifth bar, yes."