Corrimal man Giovanni Ganassin rode his motorised mobility scooter to the letterbox at the top of his steep driveway every day, making sure he set the speed to "tortoise".
Mobility scooter crash: $400,000 claim rejected
On the afternoon of October 28, 2010, his wife found the then 85-year-old lying prone at the bottom of their driveway, with blood on his legs and head and his Pegasus scooter on its side nearby.
Mr Ganassin could not recall what happened, telling the NSW District Court he only remembered waking up in hospital.
He took the importer of the scooter, Invacare Australia, to court, seeking nearly $400,000 in damages, alleging the company's negligence caused his injuries.
He alleged there had been a "catastrophic failure" of the brakes.
The scooter was a gift from his family. Mr Ganassin's wife, Angela, bought it, his son Claudio researched the best model, and his grandson, Christopher Donati, picked it up from Sydney in 2009 and set it up for him to use at the Corrimal home.
The court heard Mr Ganassin and his wife, who could not read English well, never looked at the operating manual, nor had anyone read it to them.
Mr Donati said he had a "quick flick through" and Claudio Ganassin said he had not seen the manual before, but was told the scooter was strong and good for hilly areas.
On Wednesday, Judge Phillip Mahony found that the operating manual made it clear the scooter needed annual servicing. It also needed regular checks on the brakes and accessories if it was used daily on steep slopes.
He found it was most likely a shaft in the gear box had fractured because of "fatigue failure", which would have allowed the wheels to rotate unrestricted and roll down the driveway.
"[Mr Ganassin's] use of the scooter did not amount to misuse," the judge said.
"As supplied, it was capable of being used for that purpose. [Invacare Australia] was not aware that the scooter was to be used only for that purpose, ie, to be driven only up and down the driveway.
"However, it did provide advice and information to cover that eventuality generally, and [Mr Ganassin] and his family who purchased the scooter for him ignored that advice and information."
The judge found Invacare Australia was not negligent, there was not enough evidence to establish any defect, and that the scooter was of high enough quality to sell.
He ordered Mr Ganassin pay Invacare Australia's court costs.