Cross-examination
49 The plaintiff was cross-examined at length by counsel for Malco.
50 The plaintiff said that the forklift had two gear levers, a main gear lever and a forward-reverse lever, which the plaintiff said had neutral and also low ("I'm 90 per cent sure").
51 The plaintiff said that in parking the forklift alongside the boom lift:-
"I put the lever between my legs, which is the gear shift, in neutral. I lowered the tongs on the ground, pulled the handbrake lever on and the other lever which is on the left-hand side (the forward-reverse lever) into neutral".
52 The plaintiff had driven the forklift about fifty feet to the boom lift and had then reversed the forklift, until it was alongside the back of the boom lift. The abortive attempt to tow the boom lift by using the forklift had then been made by means of a sling from the forklift to the boom lift. The plaintiff then relocated the forklift alongside the boom lift. The plaintiff was ninety per cent sure, although he could not remember precisely, that in this manoeuvre he had first moved forward in first gear and had then reversed the forklift.
53 The plaintiff accepted that the forklift would have been in gear, when it was moving forward and trapped his foot and then his leg. The forklift was moving very slowly and that was consistent with the forklift being in a low forward gear. For the forklift to move forward (if it was in proper working condition), the main gear lever would have had to have been in gear and the forward-reverse lever in the forward position. If the handbrake had been applied and had been operating properly, the handbrake should have stopped the forklift from moving, even if the main gear lever had been in gear and the forward-reverse lever had been in forward.
54 When the plaintiff had driven the forklift at the Mill before he had been injured, he had not had any problem with the forklift moving, when it should not have.
55 The plaintiff said that he had pulled the handbrake "all the way back.. when I used to pull it, I used to pull it as far back as it could possibly go".
56 The plaintiff was shown photographs of the forklift, in which he identified the main gear lever, the forward-reverse lever and the handbrake.
57 The leads which had been used in trying to jump start the boom lift were welding leads, approximately twenty feet long.
58 The plaintiff gave evidence that no one from Skilled had shown him any manual for forklift driving and no one from Skilled had told him that the forklift should not be started unless someone remained at the controls and that no one from Skilled had told him that one should not stand near the wheels of a forklift while its engine was running. He also said that no one from Skilled had told him to report to Skilled, if he had any safety problem with any of the equipment he was provided with.
59 The plaintiff was asked about the making of the decision to attempt to jump start the boom lift. He said it was "a group decision"… I don't know whose idea it was to use the forklift".
60 The plaintiff asked Mr Onody to start the engine of the forklift, because the plaintiff was engaged in applying the leads to the battery of the forklift and it was necessary to have the motor of the forklift running, in order to jump start the boom lift.
61 The plaintiff could not recall how Mr Onody started the forklift. At one point Mr Onody was standing on the running board or foot plate near the cabin of the forklift. From that position, Mr Onody would have had to have leant into the cabin of the forklift in order to start the forklift. After the engine of the forklift had started, Mr Onody left to get a better clamp from his tool box, because the clamp the plaintiff had was unsatisfactory and it was not possible for the plaintiff simply to hold the end of the lead with his hand on to the terminal of the battery of the forklift.
62 After Mr Onody left to get the clamp, the plaintiff did not turn off the engine of the forklift, because he was holding the welding lead and the clamp. He agreed that he could have let go of what he was holding and turned the engine off and that that would have been a safer course to adopt, than remaining where he was with the engine of the forklift running and no one at the controls of the forklift.
63 The plaintiff estimated that twenty to thirty seconds elapsed after the engine of the forklift was started before the forklift started to move but he could not be precise about the length of time which elapsed. He denied that it could have been as short as ten seconds.
64 With regard to his evidence that he had been told by the person who had delivered the forklift to the Mill that it was hard to get the forklift into neutral, the plaintiff agreed that that could have meant that either the main gear lever or the forward-reverse lever was hard to get into neutral.
65 The plaintiff gave further evidence about his practice in stopping the forklift. He said:-
"I always, the way I shut the machine down I had never any trouble with the forward and reverse. The trouble I found with the forklift is the floor shift, because it had so much slop you felt if it was in gear it was in neutral and if it was in neutral it felt like it was in gear. So I depress the clutch, pull it back one click, take my foot off the clutch, then I would put the other lever into neutral and that was the way I parked the machine with the tongs on the ground, and I had the forklift sitting over night, went back, hopped in it, started up and never had a problem with it".
66 The plaintiff said:-
"The four speed gear lever had a lot of slack and no markings on, where it was supposed to be sitting".
67 It was necessary to use the clutch in order to use the main gear lever but it was not necessary to use the clutch in order to use the forward-reverse lever.
68 The forklift was started simply by turning the ignition key.
69 The plaintiff had had no experience of the forklift taking some time to start moving, after the engine had been started and the forklift was in gear. If, when the forklift was started, the forward-reverse lever was in neutral, then, even if the main gear lever was in gear, the forklift should not move.
70 When it was put to the plaintiff that he might have left the forklift in gear, without knowing it, he replied:-
"No, because I released the hydraulic switch, the hydraulic forward-reverse switch last and my foot was already off the clutch. I made that a practice to make sure it was in neutral. So if it was in gear, as soon as I took my foot off the clutch it should have moved forward".
71 At the time of the accident the plaintiff had no idea whether Mr Onody had any knowledge of how forklifts operated. The plaintiff simply told Mr Onody to turn the forklift on. The plaintiff did not tell Mr Onody to get into the driver's seat of the forklift or to stay near the forklift after he had started it.
72 The plaintiff was cross-examined about complaints he said he had made about the forklift to Mr Dyson. The plaintiff said he had complained to Mr Dyson about the age of the forklift and that the handbrake did not work and that he had repeated to Mr Dyson what the person delivering the forklift to the Mill had said about the gears.
73 The plaintiff agreed that, even if the engine of the forklift was on and the forklift was in gear, activating the kill switch would immediately bring the forklift to a halt.
74 At the time he gave evidence in November 1998 the plaintiff was still employed by the motor cycle shop, although he had not actually worked in the shop since about September 1998, when he had been assaulted. The employer at the motor cycle shop had been "very negotiable" on how much time the plaintiff spent walking around and how much time he spent sitting down. The job at the motor cycle shop had been "created" for the plaintiff. The main thing he did was to answer the telephone. The plaintiff was not a very good reader and "a lot of people take my manner as being rude and abrupt, which doesn't make very good telephone skills".
75 The plaintiff was asked about his work habits before the accident. He agreed that he and his wife had developed a philosophy of not being "slaves to work", that they were going to leave room in their lives for more creative and fulfilling activities than work. He had tried to work six months out of the year and have six months off. However, he claimed that, if the accident had not happened, this pattern would have continued only "until the kids were old enough".
76 The plaintiff was cross-examined by counsel for Skilled.
77 He gave further evidence about the telephone call he had received from Malco. He said:-
"They said that they wanted me to continue on with the job because I was familiar, and that they wanted me to continue on with the job because I was familiar working with the crew, and that I'd have to go through a body hire company and they didn't really care which one it was".
78 The plaintiff agreed that plant and equipment at the site had been provided by Malco and that Malco employees controlled what the plaintiff did and when he did it.
79 The plaintiff could not remember the truck driver who had delivered the forklift to the ANM Mill. The plaintiff had walked over to the truck driver to take delivery of the forklift. The truck driver had not given any demonstration of the forklift.
80 The plaintiff had not known anything about the qualifications, or rather lack of qualifications, of Mr Dyson and Mr Onody in relation to forklifts.
81 The plaintiff would be able to work at a bench, if he could stand or sit, on his own terms, and also walk around from time to time.
82 The plaintiff said that because of the assault he was receiving weekly payments of workers' compensation.
83 The plaintiff was cross-examined by counsel for Syd-Fam.
84 The plaintiff said that his recollection was that he had used the forklift on two days, other than the day on which the accident happened.
85 The plaintiff could not recall who from Malco had telephoned him. He had been told in the telephone conversation that he would be doing labouring and rigging work, general helping out and operating a forklift and other machinery.
86 The plaintiff had previously in 1995 worked with Malco at the ANM Mill, "going through Skilled". On that occasion it had been Skilled, and not Malco, who had contacted him.
87 The plaintiff had gone to Skilled's office in Wodonga "seven years ago", filled out an application form and produced the trade tickets he then held. All his subsequent contacts with Skilled had been by telephone. A few days before the plaintiff attended at the Mill in October 1995 he had had a telephone conversation with an officer or employee of Skilled, in which he had said that he had a certificate to operate forklifts. The plaintiff did not discover that the document which had been sent to him after he took the test for his forklift ticket was not a forklift ticket, until some time after the accident had happened.
88 The plaintiff knew that Mr Dyson was a fitter and that Mr Onody was a boilermaker-welder. He had not seen either of them operate any of the equipment at the Mill, except that Mr Dyson had operated the boom lift. Mr Dyson was the nominated leading hand of Malco. Each morning the plaintiff reported to Mr Dyson. The duties the plaintiff performed on the site were allocated to him by Mr Dyson. The plaintiff was not given any directions about how to operate any of the machinery. Apart from Mr Onody some times asking the plaintiff to bring something over to him, Mr Dyson "had the last say in every other matter".
89 The plaintiff gave evidence about the task which he, Mr Dyson and Mr Onody were performing on 4 November. They were erecting several steel columns and overhead beams (that is an overhead gantry frame), which had been prefabricated by Malco. On the afternoon of 4 November 1995 the task was to affix bolts to the frame. The bolts were to be affixed about twelve to thirteen feet above floor level. The ladder which Mr Dyson had asked the plaintiff to use and which the plaintiff had refused to use, was a ladder belonging to Malco, which had been obtained from a container in which Malco's tools and equipment were kept.
90 After the plaintiff had refused to use the ladder, Mr Dyson had asked the plaintiff to find something else with which to continue the job. The plaintiff went looking and found the boom lift. After the plaintiff had brought the boom lift across Mr Dyson operated the boom lift for about five hours, fixing the bolts.
91 The plaintiff gave further evidence about how the accident had happened. The plaintiff was standing on the left-hand side of the forklift (if one faces in the same direction as the forklift was facing) in between the forklift and the boom lift. The plaintiff was standing with the boom lift behind him. The battery of the forklift, near where the plaintiff was, was positioned between the front and back wheels of the forklift. It was possible actually to see the battery. Mr Onody was on the plaintiff's left, on the same side of the forklift as the plaintiff. When the plaintiff asked Mr Onody to start the forklift "I was a 100 per cent sure that it (the forklift) wasn't going to move". The lead on the plaintiff's right was sparking, so that it was not making a good connection. The plaintiff could not recall whether he asked Mr Onody to get another clamp or whether Mr Onody volunteered to get a clamp. The welding leads which were used had been provided by Malco. The plaintiff agreed that "the only activity you can remember performing between when you asked Mr Onody to turn on the ignition and when the wheel ran over your foot was seeking to put one of the leads on to the right hand battery terminal and watching it spark and "the next thing you knew, it (the forklift) was running over your foot". If the plaintiff had not had the difficulty putting the clamp on the right hand battery terminal, he would more than likely have turned on the forklift himself.
92 The plaintiff was cross-examined by counsel for Prevwreck.
93 The plaintiff said that if the forklift was started with the main gear lever in neutral, it was necessary to depress the clutch in order to operate the main gear lever so as to put it in gear and thus enable the forklift to move forward.
94 The plaintiff said that he did not detect any forward movement of the forklift, before the rear wheel of the forklift was on his right foot.
95 The plaintiff did not detect any change in the sound of the motor of the forklift, after Mr Onody started it. He said "where we were working is a very loud area. There's a big machine running".
96 The plaintiff could not recall whether Mr Onody was sitting down or standing up, before he left the forklift to get a clamp.
97 The plaintiff did not ask Mr Onody to check that the forklift was in neutral before he started it, because "I knew that it was in neutral".
98 It was not possible to check whether the main gear lever was in neutral, simply by looking at the position of the gear lever. It was necessary to depress the clutch.
99 The plaintiff was cross-examined by counsel for Lift Truck Services and Liftqip.
100 The plaintiff said that the two vehicles, the boom lift and the forklift, were positioned very close together for the attempted jump starting. It was not possible to walk between the wheels of the two vehicles. The plaintiff did not see the leads, until they were handed to him. However, as the leads were so long, it would not have been necessary to have the boom lift and the forklift so close together.
101 After positioning the forklift for the attempted jump starting, the plaintiff climbed down from the forklift to in between the two vehicles. He agreed that he was in a dangerous position, if either of the vehicles moved. He did not go there as a result of any instruction from Mr Dyson but he had to go there in order to do the job. The plaintiff first applied the leads to the battery of the boom lift. He then sought to apply the leads to the battery of the forklift. One lead would not stay put on the terminal to the plaintiff's right and the plaintiff had to hold the clamp in position with his hand.
102 The plaintiff conceded that he did not really have any idea of where Mr Onody was. Although the plaintiff had previously said in his evidence that Mr Onody was on the same side of the forklift as the plaintiff, he said: "I honestly can't remember him actually being in the same area as me. He could have actually walked around and hopped in the other side (of the forklift)". The plaintiff did not take any notice of how Mr Onody started the forklift.
103 The plaintiff had marked the position of the battery of the forklift on a photograph of the forklift, as being in a position, not on the foot plate, but some distance above the foot plate, where it would have been necessary to lift a side panel of the forklift in order to get at the battery. However, the plaintiff thought that the battery had been in an open position on the forklift and he could not recall lifting a panel. If the battery of the forklift had been in the position indicated by the plaintiff, then the plaintiff would have been standing close to the front wheel of the forklift.
104 The plaintiff accepted that if Mr Onody had been able to see what the plaintiff was doing, Mr Onody would have had to have been in one of a certain limited number of positions on or near the forklift. If Mr Onody had been standing outside the forklift on the same side of the forklift as the plaintiff and between the front and rear wheels of the forklift, he would have been very close to the plaintiff.
105 The plaintiff repeated that, although he had had his right hand on the lead he was holding against the terminal of the battery of the forklift, he did not feel anything move, until his right foot was trapped by the forklift wheel.
106 The plaintiff confirmed that he had lowered the tines of the forklift on to the floor, so that when the forklift moved it had to drag (or push) a section of the tines across the floor of the Mill. Accordingly, if the forklift had moved, as the plaintiff said it had, it had to move against the brake which the plaintiff had applied and against the friction of the tines on the floor.
107 The plaintiff had done the tests for his forklift ticket somewhere between four and twelve months before the accident. Skilled had not asked the plaintiff to produce a forklift driver's ticket.