Mourkakos v Cleandomain

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-19-05836

CHARILAOS MOURKAKOS	Plaintiff
v
CLEANDOMAIN PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	11, 12, 15, 16, 17, 18, 19, 22 March 2021
DATE OF JUDGMENT:	27 October 2021
CASE MAY BE CITED AS:	Mourkakos v Cleandomain
MEDIUM NEUTRAL CITATION:	[2021] VCC 1648

REASONS FOR JUDGMENT
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Subject:Accident compensation
Catchwords:   Employer’s system of work; Liability
Legislation Cited:
Cases Cited:Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Earle               v Castlemaine District Community Hospital [1974] VR 722;                O’Donnell v Reichard [1975] VR 916
Judgment:  Proceeding dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Richards QC with Ms K. Popova	Zaparas Law
For the Defendant	Mr C. Harrison QC with Mr T. Storey	Russell Kennedy

HIS HONOUR:

Introduction
1The plaintiff, Charilaos Mourkakos, claims damages from his former employer, Cleandomain Pty Ltd, which conducted a cleaning business at the Chadstone Shopping Centre in June 2017. Mr Mourkakos had worked as a cleaner for that organisation for a number of years, but had only worked at the Chadstone centre since November 2016.
2There was no real dispute that he had sustained an injury in the course of his employment causing him to cease work on 16 June 2017. However, the precise mechanism of injury and issues concerning liability and causation loomed large during the trial.
3Mr Richards QC, who appeared with Ms Popova on behalf of the plaintiff, put the case against the defendant in both negligence and breach of statutory regulations. In essence Mr Mourkakos’ case was put on the basis of an inadequately safe work practice during the course of his employment which required him to use a ride‑on scrubbing machine (“T16”) and a walk-from-behind scrubber (“Clarke Focus”). Both machines required Mr Mourkakos to engage in awkward repetitive twisting and bending of his neck and awkward repetitive reaching and twisting with his right arm.
4A particular problem facing the plaintiff concerned the difficulty in changing the brushes or “drive boards” on the T16 machine due to a fault with the side access door on that machine, making the task more difficult. Ultimately, this issue loomed large in the determination of liability.
5Mr Harrison QC, who appeared with Mr Storey on behalf of the defendant, identified the question of liability as the central issue in the trial.
6The hearing occupied some eight days and a large number of witnesses, mainly addressing the question of liability, were called. The only medical witnesses to give evidence in the case were two orthopaedic surgeons, Mr Ash Chehata, who was called on behalf of the plaintiff, and Mr Ian Dickinson who was called on behalf of the defendant. The remaining medical evidence was tendered in written form from the respective parties’ court books.

The Plaintiff’s evidence
7Mr Mourkakos gave evidence-in-chief relevant to the liability question as follows:
·        He had been a nightshift cleaning manager supervising about nine or ten staff at the Doncaster Shopping Centre between 2011 and 2016. He was working for the same employer at that time.[1]
·        In November 2016 he started working at Chadstone. He was fit and well and other medical conditions were being well managed by his general practitioner.[2]
·        He was working from 12 midnight until 8.00 am. There was another nightshift manager, Arthur Giannakis, and the supervisor to whom he reported in the morning was Gezim Bekiri.[3]
·        Mr Mourkakos described his duties as the nightshift manager as:
“… organising the cleaning team, assigning the jobs to the team, monitoring for any absences. If there was an absentee I would have to cover. And then ensuring that all was done ready for hand over to the next shift in the morning. … The morning supervisor was also my boss.”[4]
[1]Transcript (“T”) 39, Line (“L”) 22-30
[2]T 40, L 2-26
[3]T 40, L 30 to T 41, L 11
[4]T 43, L 18-26
8Mr Mourkakos gave evidence that a significant part of his work involved using machines to scrub the floors at Chadstone. These tasks were performed over three floors with the Clarke Focus being used on the second and third floors, and the T16 on the ground floor, which was a much larger area. He had used an earlier version of the T16 machine at Doncaster, although on a less regular basis. He had not used a T16 before using the one at Chadstone.
9Mr Mourkakos described in some detail the duties concerning the fitting of cleaning pads to that machine:
“When we first got the machine on to the floor the pads weren’t fitted, we had to use our hands to carry the pad and fit them on to the machine, once on the floor.
…
… there was a period where they had to be removed, say mid-shift roughly, 3 or 4 am. We had to remove them to wash them.
…
I had to put them back on the machine … (at the end of the shift).

I would have to remove the pads, wash them and then take the machine back into the store with the pads, not fitted but on the machine, loose if you like.”[5]
[5]T 45, L 7-14
10Mr Mourkakos made reference to a large number of photographs which had been taken by the ergonomist, Mr Ted Dohrmann, during an inspection of a similar T16 machine at Chadstone on 27 January 2021.[6]
[6]Exhibits A to E
11Mr Dohrmann’s report dated 22 February 2021, only a matter of weeks prior to the trial, was significant in terms of the manner in which the plaintiff’s case was advanced:
“The main point of contention between the parties is liability. The Defendant’s position is that the scrubbing/polishing machines are industry standard and fit for their purpose, and that the Plaintiff was only required to change the pads twice per shift, at the beginning and at the end. The Defendant maintains that kneeling is required to change the pad, however the Plaintiff was not required to lie on his stomach or twist his neck and arm to change the pad.
The Plaintiff’s position is that he would have to change the pads more than twice a shift, usually 2 to 4 times a shift. He would have to change the pads when they became dirty and he was responsible for cleaning the top floor of Chadstone Shopping Centre which includes cinemas and restaurants, where there were likely to be oil spills and other food material, which would cause the pad to become dirty and require it to be changed more frequently. The Plaintiff’s position is that the removal of the pad required minimal force and time, however the re-attachment of the new pad took him about 15-20 minutes. The Plaintiff instructs that prior to 2016, the floor polishing machines (T15) were higher off the ground. The gap was about a hand-width – there was no need to apply force, or to twist awkwardly to change a pad. The new machines (T16) caused the Plaintiff difficulty as it had little room, and he would have to lie on his stomach and twist his neck, shoulder and arm in order to re-attach the pad. The Plaintiff further instructs that the lever which needs to be pulled to open the latch to access the pad was not functioning properly, which also made it harder to see what he was doing and required him to lay on his stomach for better access and views. He further instructs that over time, the clips which clipped the pads on became rusty, loose and also had lost their tension/shape. They were a spring type clip and over time they bent and contorted out of their original manufacturer’s standard making this job more difficult.
The Plaintiff instructs that he had complained to his day shift manager (Arthur) about the new machines and the difficulty with changing the pads. He also instructs that he had relied on his co-worker to re-attach the pad on occasion.”[7]
[7]Exhibit E, pp 6-8

12It became clear that the focus of the plaintiff’s case was very much directed towards the faulty latch providing access to the drive boards, which on any view had to be changed and re-fitted as part of the plaintiff’s duties.
13Mr Mourkakos stated that when he started working at Chadstone the latches on the T16 machine were working and it would take him two or three minutes to remove a drive board and cleaning pad, and about the same time to re-fit it. From about November 2016 the latches on the side of the machine weren’t working:
“The machine may have at some point hit something, I myself might have hit something on the machine when I was using it, I don’t know. And gradually over the course of time it wouldn’t open.”[8]
[8]T 54, L 2-9
14This was the situation for about three or four months. As a result the process of replacing the drive boards and cleaning pads became more difficult. Rather than open a latch which would free a side skirt or squeegee and provide simple access to the drive board, Mr Mourkakos would have to put his hand under the squeegee. It was less difficult to remove the drive board than it was to put it back:
“… I needed to lift the squeegee, get it under and then get it back up into position, which meant - yeah, visibility, the clearance wasn’t there any more so you had to search around to find the position to put it in place.
… It was very difficult because I had to put force in my arm and my neck.

… I can say I had to put strength into it. Well with the side squeegee not working I’m not only having to push the pad up but I’m also having to push the squeegee up at the same time.”[9]
[9]T 56, L 19-31
15With the latch unable to be opened the task of replacing the drive board took a lot longer:
“Sometimes it would happen that I would quickly find the position, five to ten minutes perhaps. But most of the time it would take me 10, 15 and sometimes even 20 minutes.”[10]
[10]T 59, L, L 15-18
16During this time Mr Mourkakos would have his right arm extended:
“It had to be outstretched, apply strength and searching to find the right position.”
17His head would also be turned while performing this clearly awkward manoeuvre.[11]
[11]T 59, L 13-26
18Further issues with this task concerned wear and damage to the metal clips which secured the drive board to the drive hub on the T16 machine. Two photographs, forming part of Exhibit A, showed clearly worn and damaged clips fitted to drive boards.[12] These photographs had not been taken by Mr Dohrmann, but it was not disputed by the defendant that these obviously worn drive boards had been photographed at the area where the cleaning machinery was stored at Chadstone.
[12]Exhibit A, pp 156A & 156B
19Mr Mourkakos gave further evidence that it was the left side latch on the T16 machine which could not be opened in the months leading up to his injury. He was unsure if there had been any written report concerning the problem with the machine. He maintained that he did have a discussion with the other night manager, Arthur:
“… I did have a discussion with him. I did mention the problem to him. He walked away; he didn’t pay much attention.
… I always discussed things with Arthur, and in the morning, he would discuss it with Gezim.”[13]
[13]T 77, L 16-28

20Mr Mourkakos also gave evidence of having difficulties with the Clarke Focus machine which he described as requiring a lot of strength with his hands and arms and back in order to manoeuvre it around various obstacles such as fixed furniture or walls. He would use that machine for about an hour and a half during the shift. As the case developed it was apparent that the relationship between the use of this machine and Mr Mourkakos’ injuries was tenuous. He did not give evidence of his symptoms commencing while using this machine.
21Mr Mourkakos described the onset of symptoms as occurring three days before he ceased work:
“… on that particular night I tried to put the pad on, ah – I explained to you how I used to do that, and suddenly – suddenly I felt a pinch just back here (Mr Mourkakos indicated the back of his neck in the middle).
…

… and then I started feeling something down this side (indicating his right arm).”
22At that time he explained he was using the T16 ride-on machine. He was fitting the drive board to the left-hand side:
“the difficult one. … Because, ah, the latch would not open at all. And – and I had to go underneath.”[14]
[14]T 81, L 27 to T 82, L 25
23Mr Mourkakos stated that he had stopped work for about half an hour and then continued working with pain.
24At the end of the shift Mr Mourkakos met up with Gezim:
“We met up at the corridor. He saw me, that I had the problem back here, and I was holding my arm in a position as such (indicating his right forearm and hand across his chest) … And he asked me how come they like this? I said ‘I don’t know, I had difficulties with the machine.’ And his answer was ‘you probably slept crooked.’”[15]
[15]T 82, L 31 to T 83, L 9
25Mr Mourkakos was taken to photographs showing his son, Anastasios, adopting a similar position to the one described by him when installing a drive board into the right‑hand side of the T16 machine.[16]
[16]Photographs 193 to 195 forming part of Exhibit A
26Mr Mourkakos was also asked to identify the latches on both the left and right side of the T16 machine. Photographs from Mr Dohrmann’s report as marked by Mr Mourkakos were tendered in evidence.[17]
[17]Exhibit B
27When cross-examined it became clear that Mr Mourkakos maintained his evidence concerning the faulty access door on the T16 machine:
“Now, there was only one T16 at Chadstone when you worked there?

---Yes.
And it’s your evidence, as I understand it, that the left-hand side squeegee door of the T16 could not be opened for three to four months?---Yes.
And you soldiered on with it, for three or four months, changing pads a couple of times each shift?---Yes.
And you mentioned to Mr Giannakis, who’s Greek speaking, you had a discussion with him, told him there was a problem, and he walked away?

---Yes, in your answer to your question that you just asked right now, yes, that’s correct.
And you only raised it with Mr Giannakis once?---Once I discussed with him, and two or three times I asked him to come and change the pads because I couldn’t do it.”[18]
[18]T 104, L 21 to 105, L 1

28It was put to Mr Mourkakos that the other nightshift supervisor, Mr Giannakis, would say that he had no recollection of the side door ever being jammed:
“He will say that you may have complained to him about and said you were finding it a bit stiff, but you never said the door was jammed. And he has no knowledge of it ever being jammed?---No. I said to him that one door would not open at all, and the other one was hard to open.”[19]
[19]T 105, L 3-9
29Mr Mourkakos also rejected a suggestion in cross-examination that a maintenance contractor was available to perform repairs on the T16 machine at the Chadstone site. He agreed that this contractor, Christian Cramp, would attend at Doncaster, but rejected the proposition that he would attend at the Chadstone site approximately once a fortnight:
“For the nine months that I was in Chadstone I didn’t see anyone coming to looking at those machines. And when Gezim found out, because he knew of the problems, he would say to me what – look don’t worry. In two or three months the new machines would come.”[20]
[20]T 106, L 30 to T 107, L 3
30Mr Mourkakos maintained that he had complained to Gezim prior to sustaining his injury on 13 June 2017.[21]
[21]T 107, L 8-13 & T 108, L 13 to T 109, L 3
31The cross-examination moved to matters of history provided to the engineer, Mr Ted Dohrmann, who had viewed the cleaning equipment at the Chadstone Shopping Centre on 27 January 2021 and produced a detailed report dated 22 February 2021, which was tendered in evidence.[22]
[22]Exhibit E
32Mr Mourkakos and his son Anastasios, who also gave evidence, were present when Mr Dohrmann conducted his inspection.
33Specifically Mr Harrison QC put to Mr Mourkakos that Mr Dohrmann’s report had noted the latch which secured “the side skirt on the right side of the ride-on machine was bent and damaged,”[23] whereas Mr Mourkakos had maintained that this was on the left side of the machine:
“I suggest to you that you told Mr Dohrmann that it was the right-hand side and the reason that Tas demonstrated on the right-hand side is because that’s what you were telling people a few weeks ago?---Maybe – maybe Mr Dohrmann seen Tas on the right-hand side of that photo – um, and concluded that it was the right-hand side.”[24]
[23]Exhibit E, para 4.21
[24]T 120, L 23-27
34Mr Mourkakos was also directed to photographs taken by Mr Dohrmann showing the plaintiff’s son lying on his right side on the right of the T16 machine, moving his right arm under the skirt or squeegee of the machine towards the area of where the drive pads were attached. Mr Mourkakos eventually agreed that he was not pushing the drive pad up with his stomach on the ground. When directed to the photograph taken by Mr Dohrmann showing his son lying on his side he stated:
“I pushed it like that too, but sometimes – look sometimes it was somewhat easier to push in. And I would push it up like with my stomach on the ground. But when I had difficulties … I had to turn into that position so that I could use more strength.”[25]
[25]T 152, L 2-23
35Mr Mourkakos had demonstrated the movement of his arm with his elbow down and pushing with his hand raised in order to attach the pad.
36Mr Harrison QC cross-examined on a large number of medical histories, commencing with the general practitioner, Dr Ng, to whom Mr Mourkakos had presented on 20 June 2017 with a one week history of right-sided neck pain. Dr Ng had recorded the pain “for no apparent reason”. Mr Mourkakos stated that Dr Ng had not asked him about the cause of the pain at that time.
37Mr Mourkakos was then taken to a WorkCover claim form which he agreed he had signed on 4 July 2017. He agreed that the description of injury in that form was recorded as follows:
“Two machines (scrubbing) one ride on and one push behind, change the pads of the machines in a very hard way, and using them long hours every day.”[26]
[26]Exhibit P
38Mr Mourkakos agreed there was no mention of the door being jammed and stated:
“No, because I understood the question and I answered accordingly.”[27]
[27]T 158, L 5-23
39Mr Mourkakos was again referred to the clinical notes from Dr Ng and agreed with a history recorded on 26 August 2017:
“Has been working as a cleaner, 17 years with the current employer, for 11 years. Began to experience neck pain with radiation down the fingers of the right hand … Before and after each shift of duty, he has to lie down to attach and detach the scrubber pad on the machine.”[28]
[28]T 160, L 15 to T 161, L 13
40Mr Mourkakos maintained that he had told Dr Ng that his injuries had occurred at work.[29]
[29]T 162, L 11-27
41Mr Harrison QC then cross-examined Mr Mourkakos about a history provided to Dr Michael Lucas, an occupational physician, who examined Mr Mourkakos for the WorkCover insurer on 26 July 2017. The history recorded by Dr Lucas was as follows:
“Mr Mourkakos described his awareness of discomfort which arose on 13.06.2017 his first day back at work following a long weekend break. Mr Mourkakos attributed onset of his discomfort to the changing of the machine pads prior to commencing work. … Mr Mourkakos indicated the changing of the pads on the machine was an awkward/difficult task, although indicating he had undertaken this task innumerable times in the past.

Mr Mourkakos advised during and immediately following changing the pads he had no particular symptom concerns. However, during his subsequent work participation, described as involving the pushing and driving of cleaning machines, Mr Mourkakos became aware of neck discomfort. He was able to complete his work shift. No incident report was submitted.”[30]
[30]Exhibit 17, DCB 4 & T 169, L 23 to T 171, L 7

42Mr Harrison QC was critical of the omission of any mention of the jammed access door in the history recorded by Dr Lucas. Mr Mourkakos maintained:
“I told the doctor what I was suffering from and how it happened. I couldn’t give the doctor detailed information, what opened and what didn’t open.”[31]
[31]T 172, L 19 to T 173, L 11
43In a thorough and searching cross-examination Mr Harrison QC went through further histories taken by Dr Quiangli on 24 July 2017, Dr Awad on 23 June 2018, Mr Chehata on 25 June 2018, Dr Littlejohn on 18 September 2019, Dr Slesenger on 29 September 2020 and Mr Dickinson on 11 February 2021, none of whom had recorded any history concerning a jammed access door on the T16 machine.
44Mr Mourkakos was then taken to his initial serious injury affidavit sworn on 19 February 2019, the statement of claim dated 4 December 2019, the further and better particulars dated 30 June 2020 and the initial instructions noted by Mr Dohrmann and provided by the plaintiff’s solicitors on 23 December 2020. None of these made reference to the jammed access door.
45Mr Mourkakos was also taken in cross-examination to his answers to interrogatories sworn in September 2020. He confirmed that he had made oral complaints to both Mr Giannakis and Gezim and was assisted on a few occasions by Mr Giannakis to change the pads on the T16 machines. There was again no reference in the answers to any difficulty with the side access door.[32]
[32]Exhibit 4
46Mr Harrison QC put in cross-examination to Mr Mourkakos that the first mention of the jammed access door had been recorded by Mr Dohrmann during the inspection on 27 January 2021.[33]
[33]T 192, L 1 to T 193, L 8

The further lay evidence called on behalf of the Plaintiff
47Mr Vasilios Divanis had been a cleaner for 16 years working for the defendant company and its predecessors at Fountain Gate, Doncaster and Chadstone Shopping Centres. He believed he was working in Chadstone on afternoon and night shifts in 2017.[34] One of his cleaning jobs involved using the T16 machine and he described difficulty in replacing the drive boards”
“The difficulty was to put the pad underneath. Sometimes the pad did not go in straight. Not all the time. Because if not go down, you can’t click, no go in. You have to use your hand, use the hand, push it hard, and listen, that the pad is locked now, click. (Mr Divanis demonstrated to the court by placing his left hand under his right elbow to show how he pushed the drive board).”[35]
[34]T 250, L 2-19
[35]T 252, L 6-23
48Mr Divanis described laying on his side and flexing his right arm to an angle of nearly 90 degrees in order to push the drive board into place.
49Mr Divanis was directly asked about the access doors on the side of the T16 machine. He stated that it was difficult but he was able to turn it, opening the latches on either side of the machine was about the same.[36]
[36]T 263, L 2-28
50Mr Divanis gave some further evidence about the Clarke Focus machine stating that it was problematic when turning corners:
“You have to push more around the corners to turn smoothly.”[37]
[37]T 266, L 27-31
51When cross-examined Mr Divanis agreed that he had retired some time before the end of June in 2017, close to April or May. When using the T16 machine he would firstly have to install the drive boards and would use the side access hatch to view what he was doing. Sometimes they would go in easily, other times he would have to use more power or force.
52Mr Divanis remembered a mechanic, Christian Cramp, coming to perform repairs. He also agreed that the T16 machine was important as he used it to do big jobs. He had difficulties getting the drive boards on:
“… sometimes it was hard for you to do it, a struggle, but you always managed to get the pads on. You didn’t ever have to leave the T16 and say, I can’t do it because I can’t get the pads on?---With great difficulties. I had to, um, put it in so that I could start work.”[38]
[38]T 275, L 26-31
53The plaintiff’s son, Anastasios Mourkakos, also gave evidence. He had worked as a night-shift cleaner at the Doncaster Shopping Centre between 2009 and 2012. At the time of the hearing, he was working as a sales representative for an industrial supply company.
54Mr Anastasios Mourkakos had used a Clarke Focus and an earlier model of the ride-on machine, which he believed was a T15. He had accompanied his father to the Chadstone Shopping Centre when the ergonomist, Mr Dohrmann had viewed the T16 and the Clarke Focus machines prior to the preparation of his report.
55Mr Anastasios Mourkakos explained that he had been photographed accessing the machine on its right-hand side:
“… seeing as though everybody was standing on that side, it’s the easiest side to show everybody how the pads are changed.”[39]
[39]T 404, L 11-20
56Mr Anastasios Mourkakos gave quite extensive evidence concerning other aspects of the case, but clearly was unable to provide evidence concerning the work performed by the plaintiff at Chadstone in 2017.

Lay witnesses called by the defendant
57Mr Arthur Giannakis, who was also employed by the defendant as a night manager at Chadstone in 2016 and 2017, was the first witness called on behalf of the defendant. He described using the T16 machine from time to time and changing the drive boards:
“… there’s a latch on the side of the machine to open the side door.
Um, to release the pad there’s that hole where you stick your hand in to squeeze the pad, the clamp, and that will drop the pad, that driving pad. And then to re-install it, it was just in reverse; you squeeze the clamp again, push upwards and make sure that it locks into place.”[40]
[40]T 422, L 21-27
58Mr Giannakis gave evidence that he would use the T16 machine a couple of times a week, “if we were short on staff”. He stated that he did not have difficulty changing the drive boards, “I’ve never struggled with it.”[41]
[41]T 426, L 10-27
59Mr Giannakis was asked to look at photographs of some clearly worn drive pads and agreed that when rusty they would not be as manageable as when new, and that would effectively make the task of taking them off and re-installing them a little bit harder. He could not recall Mr Mourkakos reporting that he was unable to open the side access door on the T16 machine and stated that if that access door wasn’t possible to open, he would get a technician to look at it.[42]
[42]T 428, L 15 to T 429, L 9
60Mr Giannakis agreed that the side door latch on the T16 machine did become tight from time to time, “the latch becomes a bit stiff, yeah.”[43]
[43]T 429, L 30-31
61Mr Giannakis estimated that the task of removing the drive boards from the T16 machine, taking the pads off, washing or replacing them, and re-fitting the drive boards would take approximately 10 to 15 minutes. The physical activity of dropping the drive boards and re-fitting them would take less than five minutes in his estimation. He agreed that if the clamps on the drive board “go a bit funny ‘cause they’re rusted or … a bit out of shape”, that would affect the re‑installation:
“Not so much force, probably, you gotta, you gotta play around with it a bit for it to click into place.”[44]
[44]T 431, L 9-27
62Mr Giannakis gave some further evidence concerning the Clarke Focus machine, although ultimately this was not particularly relevant to the central issue of liability.
63Mr Giannakis also gave evidence about two other workers who performed work over the weekends at Chadstone and did not recall any complaints being made concerning the T16 machine in that time. If a complaint was made, he would report it to the operations manager, Gezim, who would authorise repairs and call the technician, Christian.[45]
[45]T 436, L 4-26
64When cross-examined Mr Giannakis agreed that photographs of the worn drive boards demonstrated that they would not be functional,[46] but maintained that if a complaint was made to him he would report it and take action.[47]
[46]Exhibit A, PCB 156B
[47]T 438, L 6-30
65Mr Giannakis could not recall any specific issue with the drive boards, but he did recall the plaintiff complaining about difficulty opening the side access door. He had no actual recollection of filing any report following that complaint.[48]
[48]T 441, L 15 to T 442, L 3
66When re-examined he maintained that he had no specific recollection of the plaintiff complaining to him about the door being jammed:
“… like I said the - the clip can become – the latch becomes a bit stiff … I can release it .”[49]
[49]T 442, L 17-25
67Mr Harrison QC sought leave to pursue another issue with Mr Giannakis concerning toolbox meetings and induction and training. Mr Giannakis agreed that toolbox meetings were conducted by Mr Christian Cramp, usually early in the morning, about 6.00 am, before the nightshift finished work. He was unsure as to the occasions when those meetings took place:
“… when it was needed when we had, um, new staff on.”[50]
[50]T 443 to T 444, L 23
68Mr Gezim Bekiri, the former operations manager for the defendant at Chadstone, was also called on behalf of the defendant. He was aware that the plaintiff had spent a bit of time on the machines:
“Obviously we had some issues regarding the floors in that area, so Harry being one of our seniors, would’ve taken that responsibility.”[51]
[51]T 447, L 22-28
69Mr Bekiri did not agree with the plaintiff’s estimate of the time spent using both the Clarke Focus and T16 machines:
“That wasn’t his duty. His duty is to manage. He’d probably be on the machine if they’re short-staffed, and on night shift there probably would be some days we would be short-staffed and we had the managers on the machines.”[52]
[52]T 448, L 11-16
70Mr Bekiri did not profess any great experience with the T16 machine, but had used its predecessor. He described changing the drive boards on the T15 as being:
“… a bit harder because you have to lift the guard up and using the clips, but a T16 you just move the yellow knob and just lift it up and it pulls out, so it’s a lot easier to go – get to the pads.”[53]
[53]T 451, L 10-17
71Mr Bekiri described the system of work as requiring inspection of the drive boards and pads at the commencement of a shift before they were put back on the machine:
“Hopefully that will last a whole shift, and once you last a whole shift at the end you wash it, you need to replace, you replace it ready for the next night. So that’s basically the standard we had for all the machines, not just the T16.”[54]
[54]T 451, L 30 to T 452, L 6
72Mr Bekiri explained that the operators would take the drive boards out at the end of nightshift, wash them out to remove any chemical residue and leave them to dry so the staff operating them could inspect them on the following night. He believed that one set of pads would last the entire shift.[55]
[55]T 452, L 11-30
73Mr Bekiri had been aware of a problem with the clips affixed to the drive boards becoming corroded and being difficult to close:
“… I was informed by, um, Arthur and also Christian, our repair man that the guys are not removing the pad drivers and washing it, so we put a new plan in place that all operators must wash them out going forward and Christian replaced most of them.”[56]
[56]T 454, L 6-15
74This policy was introduced at the end of 2016. Mr Bekiri also stated that any problem with the machines would generally be reported by Mr Giannakis or the venue manager and rectified before he became aware of it:
“… so Christian of Sweeper Solutions would come in there daily, or even fortnightly, inspect our machines so anything that was a bigger item, I’m aware of it, a small item’s, um, got rectified straight away.”[57]
[57]T 454, L 24-32
75Mr Bekiri stated there were no difficulties with budgets and he would often organise service on machines to make sure he had spent the monthly allowance.[58]
[58]T 455, L 1-26
76Mr Bekiri did not recall the plaintiff making any complaints about the T16 machine, although he did recall a complaint concerning the Clarke Focus.[59] Mr Bekiri was specifically asked about complaints concerning the side access doors on the T16 machine. His evidence was as follows:
“---Not the T16, but the T15s, there were issues on the T15s which we rectified.
What were the issues on the T15s?---They wouldn’t go up. They wouldn’t go up and they were hanging down, so – actually Harry’s pretty good, he usually tells me straight away if there’s any problem with any machines.”[60]
[59]T 457, L 27 to T 458, L 19
[60]T 458, L 14-19

77Mr Bekiri gave evidence that he did recall Mr Mourkakos telling him that he had pains in his neck and:
“… I’ve asked him just to go and find out with the doctors to find out what’s happening.”[61]
[61]T 460, L 8-12
78Mr Bekiri stated that Mr Cramp would probably attend the Chadstone centre two or three times per week. He personally had never received a report that the access door on the T16 machine could not be opened. If that had occurred it would have been repaired straight away.[62]
[62]T 461, L 9-19
79When cross-examined by Mr Richards QC Mr Bekiri agreed that he had introduced a protocol to ensure employees changed the pad drivers on the machines, with one of the reasons being that the securing clips on the drive boards could be corroded which could make them more difficult to fit:
“So (they were) still useable but they were snapping off and that’s why when they snap off you can’t use it.”[63]
[63]T 462, L 8-31
80Mr Bekiri’s protocol involved changing the drive boards at the end of the shift, to wash them out and allow them to dry. He agreed with the proposition that if the clips on the drive boards had gone “a bit funny” this made it harder to attach the drive board into the drive hub.[64]
[64]T 463, L 22-27
81Mr Bekiri recalled when the T16 machine had come to Chadstone it had been serviced including replacing the batteries at a cost of just under $4,000. Mr Bekiri had never witnessed Mr Mourkakos using the Clarke Focus machine, but he did recall him complaining that he had difficulties putting in the pads. Mr Bekiri was also aware of other staff using that machine by moving it sideways, which he regarded as unsafe.[65]
[65]T 465, L 21 to T 466, L 5
82Mr Chaminda Wijesinghe was called to give evidence on behalf of the defendant. He had worked as a cleaner for Spotless at Chadstone since 2010 and became a supervisor in 2016 or 2017. From November 2016 until June 2017 he was working weekend nightshifts. He gave evidence of working with another man called Hushein. Part of Mr Wijensinghe’s job was to clean the floors with machines. He had used both the T16 and T15 machines. Mr Wijesinghe described removing the pads after a nightshift to clean them and reinstalling them the next day.[66] He described using a squeezing motion to remove the pads and pushing to reinstall them. If the spring clip was not squeezed, or could not be squeezed, it was harder to put the pads on.
[66]T 491, L 6-11
83Mr Wijesinghe could not recall the side access door being jammed on the T16 machine, but he stated:
“Because this lock, normally we use so many times, then after this lock it sometime jam. It’s not working properly.
… Then sometime, ah, sometime we can’t turn it, it may be stuck.
… We can open but a little bit time, a little bit more time.”[67]
[67]T 493, L 15-29

84Mr Wijesinghe described the process of fitting the drive boards as a little bit hard initially, but after experience he could do it. It would take about two minutes if the pads were in good condition, that is not being rusty or having screws missing in the retaining clips.[68]
[68]T 496, L 2-23
85He further gave evidence that he had not seen anyone lying on their back or stomach to change a drive board on the T16 machine. If there were problems with the drive boards or the squeegee, these would be repaired by the mechanic.[69]
[69]T 501, L 30 to T 502, L 19
86Mr Wijesinghe stated that the mechanic would normally come in on weekdays, usually after he had finished his shift in the morning. He recalled attending toolbox meetings with the mechanic, but could not remember attending one specifically from the end of 2016 until the middle of 2017.[70]
[70]T 503, L 11-29
87When cross-examined Mr Wijesinghe agreed that there were often difficulties with the drive board clips involving rust, broken springs, missing or loose screws. In that event there would be some difficulty in attaching the drive board to the machine. Sometimes he could not use the drive board:
“… we have to throw out and get the new one.”[71]
[71]T 505, L 24 to T 506, L 31
88Mr Wijesinghe stated that sometimes he would spend five to 10 minutes trying to fit a drive board. He also agreed that another worker would do it, sometimes lying down, whilst he preferred to kneel.[72] He stated that if he could not fix the drive boards to the T16 machine, then he would use another machine, perhaps the walk behind machine, and in the morning call the manager.[73]
[72]T 508, L 15 to T 509, L 7
[73]T 509, L 22-29
89Mr Wijesinghe also agreed that sometimes there was a problem with the side access door which sometimes jammed, which he explained meant it could not be opened smoothly, but he would have to push the lock a little harder to close it.[74]
[74]T 511, L 2
90Mr Wijesinghe was also asked about the Clarke Focus machine and explained there was difficulties using that machine when turning corners. He normally used that machine in the corridors, in the larger areas he would use the ride-on machines, either the T15 or the T16.[75]
[75]T 512, L 29, to T 513, L23
91Mr Wijesinghe knew Mr Mourkakos while working at Chadstone, but Mr Giannakis was the nightshift manager who did all the rosters. He did recall speaking to Mr Mourkakos if he had a problem, although he believed this may have occurred at the Doncaster centre.[76]
[76]T 514, L 10 to T 515, L 4
92When re-examined Mr Wijesinghe could not recall specifically reporting problems with the drive board on the T16 machine in 2016 or 2017. He explained that the problem with the lock on the squeegee door was that it was a bit stiff, meaning it was hard to close.[77]
[77]T 515, L 22-28
93The final lay witness called on behalf of the defendant was Mr Christian Cramp who conducted a business as the Victorian service agent for the Tennant cleaning machines, the manufacturer of both the T15 and T16. He had done maintenance on these machines at various sites, and gave evidence that he had met Mr Mourkakos probably at the Doncaster centre. He also recalled seeing Mr Mourkakos again at Chadstone in 2016 or 2017.[78]
[78]T 520, L 9-13
94Mr Cramp had serviced the T16 machine from Doncaster when it was transferred to Chadstone:

“It needed a new set of batteries and that was pretty much ready for it to go.”[79]
[79]T 520, L 14-26
95Mr Cramp described the Tennant T16 machine as of a type used in 95 per cent of shopping centres which used round disc type drive boards to which pads were fitted.[80]
[80]T 521, L 18-31
96Mr Cramp was shown photographs of the T16 machine and identified the side access door. He described problems when the latch had broken, meaning the door could not be shut, but had never encountered an instance of a door jamming and being unable to be opened. He did not recall any complaint of such a problem between November 2016 and June 2017.[81]
[81]T 523, L 18-31
97Mr Cramp described the drive hub on the T16 machine and the manner in which the drive boards were inserted and then secured using the spring clip mechanism. If the spring clips were rusted or otherwise damaged, they were replaced for a cost of approximately $50.[82]
[82]T 529, L 24 to T 530, L 13
98Mr Cramp described replacing the drive boards as being relatively easy, but conceded that loose screws or bent clips could potentially cause the drive board to fall off once fitted. He was doubtful of the weight of a drive board being 3.8 kilograms – as had been stated in Mr Dohrmann’s report, but accepted if that was the weight, it would be re-fitted using one hand.[83]
[83]T 533, L 3 to T 534, L 5
99He also agreed that with various problems, such as rust or other damage to the drive board, the force required would increase:
“Varying from, you know, 20 per cent more effort to it’s impossible to get it on.”[84]
[84]T 534, L 20-31
100Mr Cramp had never timed the process, but believed putting on the drive board would take a matter of seconds. He agreed that if there were problems with the drive board, the task would probably become somewhat difficult as time went on involving extending an arm whilst in a kneeling or a lying down position.[85]
[85]T 535, L 1-23
101Mr Cramp agreed that the drive boards would wear during regular use:
“… I mean if you were to get a year out of them you would be very, very lucky.”[86]
[86]T 536, L 8-26
102Mr Cramp described weekly maintenance visits to the Chadstone centre where he would have discussions with Mr Giannakis or Mr Bekiri. If a particular defect were reported it would usually be fixed the same day or the following day. Mr Cramp had an arrangement with another maintenance contractor to cover this work during periods when he was unavailable.[87]
[87]T 537, L 26 to T 538, L 18
103He described the system of maintenance as being “responsive” as preventative servicing had been tried in other locations without great success.[88]
[88]T 539, L 15 to T 540, L 10
104Mr Cramp described the toolbox meetings as generally being conducted in the morning, before the nightshift workers had gone home. He described a policy used by most companies that required no new operator be permitted to drive their machines without being trained. The nature and size of these meetings would change:
“… it could just be a one-on-one session with a new operator, it could be a good time to do a refresher with the whole crew. So, you could have one, you could have twelve.”[89]
[89]T 543, L 3-16
105Records were kept to show that employees had been trained.[90]
[90]T 544, L 22-25
106Mr Cramp described changing the drive boards on a T16 machine as being much easier than the same operation on the earlier T15 machine.[91]
[91]T 545, L 22 to T 546, L 10
107Finally, Mr Cramp stated that he had some knowledge of the Clarke Focus machine, stating that it was a very heavy machine with dynamic braking and the method of shifting it in corners from a stationary position was described by him as very bizarre.[92]
[92]T 548, L 13 to T 549, L 21
108When cross-examined by Mr Richards QC, Mr Cramp agreed that the retaining springs, clips and screws on the drive boards could deteriorate over time. He further agreed that there was a potential for the force required to re-fit the drive boards could be increased by up to 50 per cent. An experienced operator could tell by eye “what will work and what won’t.”[93]
[93]T 550, L 3 to T 551, L 14
109Mr Cramp disagreed that preventative maintenance in replacing the spring clips at regular intervals would be a preferrable system.[94]
[94]T 552, L 24 to T 553, L 7
110Mr Cramp stated that he would liaise with Mr Bekiri or the centre manager who would authorise repairs and training sessions.[95]
[95]T 556, L 2-6
111In re-examination he clarified his position on preventative maintenance stating:
“… there is generally not enough time for things to wear out on a cleaning machine. They’re generally broken off, one way or another.”[96]
[96]T 556, L 11-31

The expert evidence
112Mr Edward Dohrmann, consulting engineer, gave evidence during the hearing. His report dated 22 February 2021 was tendered on behalf of the plaintiff.[97]
[97]Exhibit E
113Mr Dohrmann had been instructed by the plaintiff’s solicitors in December 2020 and provided with a considerable volume of background material prior to meeting with Mr Mourkakos at the Chadstone Shopping Centre on 27 January 2021. He noted in his report that he had not seen any maintenance or servicing records, nor any relevant CCTV of the cleaning machines in operation.[98]
[98]Exhibit E, p 126 [3.4] & [3.5]
114Mr Dohrmann’s report confirmed the principal issue between the parties as focusing on the task involving changing the drive boards on the T16 machine. His report sets out Mr Mourkakos’ instructions that the drive boards would need to be changed, usually two to four times per shift, and the reattachment of the new pads took between 15 to 20 minutes. Mr Dohrmann noted the following:
“The plaintiff further instructs that the lever which needs to be pulled to open the latch to access the pad was not functioning properly, which also made it harder to see what he was doing and required him to lay on his stomach for better access and views. He further instructs that over time, the clips which clipped the pads on became rusty, loose and had lost their tension/shape.
…
The plaintiff instructs that he had complained to his day shift manager (Arthur) about the new machines and the difficulty with changing the pads. He also instructs that he had relied on his co-worker to re-attach the pad on occasion.”[99]
[99]Exhibit E, pp 126 [4.12]-128

115Mr Dohrmann recorded further detail of the difficulty in changing the drive boards due to the managed latch in further detail later in his report.[100]
[100]Exhibit E, p 131 [4.21] to [4.26]
116His report records a similar difficulty in changing the scrubbing pads on the Clarke Focus machine.[101]
[101]Exhibit E, p 131 [4.30] to [4.36]
117Further history was noted concerning the difficulty in physically manoeuvring the Clarke Focus machine.
118Mr Dohrmann’s report contained numerous photographs of the T16 machine as inspected by him, and identified the latch securing the side skirt which had featured prominently in the instructions he obtained from Mr Mourkakos. The report also contained three photographs of Mr Mourkakos’ son demonstrating the limited access to the drive board whilst lying on the floor and reaching under the side squeegee fitted to the machine.[102]
[102]Exhibit E, p 157 Figures 46 to 48
119Mr Dohrmann’s report also detailed testing of forces to laterally move the Clarke Focus machine as requiring around 19 kilograms of effort.[103] In evidence Mr Dohrmann stated that an acceptable force was around 10 kilograms.[104]
[103]Exhibit E, p 182 [7.43] to [7.44]
[104]T 308, L 1-3
120Mr Dohrmann also gave evidence concerning the role played by the retaining springs forming part of the drive board assembly used on the T16 machine. He described the clips as forming an important role in securing the drive board to the machine:
“… the clip itself, ah, needs to be in the right – well needs to be not too loose or too tight. … in order to facilitate the drive board to be comfortably placed and locked into position …”[105]
[105]T 311, L 3-14
121Mr Dohrmann stated that the method described by Mr Mourkakos to fit the drive boards to the T16 machine from a position lying down with his right arm extended and his head raised to observe would, from an ergonomic point of view, be quite unsatisfactory:
“Well most unsatisfactory, it’s a key component of the equipment that Mr Mourkakos was given and expected to use as part of his job.”[106]
[106]T 316, L 28 to T 317, L 22
122Mr Richards QC specifically read to Mr Dohrmann the sections of his report where Mr Mourkakos had described the damaged latch on the side of the machine requiring him to put his arm under the squeegee in order to fit the drive board:
“Well clearly it’s an unsatisfactory situation. You rely as the operator of the machine to routinely inspect that part of the machine, being the pads, and also to change the pads themselves.”[107]
[107]T 318, L 2-31
123Mr Dohrmann also gave evidence that an audit of the work practises, including the manual handing practises concerning the Clarke Focus machine and the opening of the side door in changing the drive boards on the T16 machine, would have been very useful if done competently.[108] Mr Dohrmann stressed the importance of maintaining equipment in good condition, describing preventative maintenance programming:
“… where there’s things are done on a plan and you know almost what you’re doing for that piece of equipment for the next 12 months, for example. It’s planned in advance. And there’s also reactive maintenance of the sort where something’s broken and so it needs to be fixed promptly and dealt with promptly”[109]
[108]T 320, L 1-10
[109]T 322, L 6-18
124When cross-examined by Mr Harrison QC Mr Dohrmann agreed that on the date of his inspection of the T16 machine an employee of the defendant had demonstrated the operation of changing the drive boards on both the T16 and the Clarke Focus machines.[110] He agreed that the process appeared “very much straight forward” as demonstrated in a video.[111]
[110]T 332, L 18-23
[111]T 322, L 28 to T 333, L 3 & Exhibits 1 & 7
125Mr Dohrmann agreed that the process of changing the drive board depicted in the video could be done quite quickly, “in less than two minutes” and he would not make any criticism of this system, “if the system worked like that”.[112]
[112]T 340, L 6-11
126Mr Dohrmann did not agree with the proposition that it would be impossible to change the drive board if there was no access through the side door of the T16 machine. He stated that the plaintiff’s son had performed this operation on the date of his inspection, but agreed it was very difficult. He further stated that he had been told that the side skirt or squeegee had been set a little higher to allow this task to be performed.[113] He also agreed that the re-enactment by the plaintiff’s son was performed on the right hand side of the machine, which he had been instructed was the one that was jammed shut.[114]
[113]T 345, L 2-18
[114]T 346, L 2-18
127Mr Dohrmann could not identify in his notes taken on the day of the inspection where there was any actual mention of the side door being unable to be opened:
“… I don’t appear to have made a note that directly says that but certainly that’s what I was led to believe.”[115]
[115]T 347, L 3-29
128Mr Dohrmann agreed with the proposition that he would expect complaints and reports to be made about a defect such as the side door being stuck closed as it would severely restrict the efficient use of the machine and potentially put workers at risk.[116]
[116]T 348, L 21-28
129Mr Dohrmann was cross-examined concerning the use of the Clarke Focus machine, noting his instructions that the machine would be depowered in order to negotiate tight corners or similar spaces. The force measurements recorded by Mr Dohrmann were done on a rough concrete surface.[117]
[117]T 350, L 4 to T 351, L 17
130Mr Dohrmann agreed that the operation of the Clarke Focus machine involved it being self-propelled and steered from behind when under power, and then becoming stationary when the power was removed.[118]
[118]T 353, L 7-24
131He also agreed that the force recorded was on a dry concrete floor and would be greater than the force required on the tiled surface within the shopping centre.[119]
[119]T 355, L 6-30
132Finally there was some brief cross-examination concerning alternative machines which had been referred to in Mr Dohrmann’s report.
133When re-examined Mr Dohrmann agreed with the suggestion by Mr Richards QC that if the report of the difficulty changing the drive boards had been made by Mr Mourkakos and the system of maintenance failed to rectify that problem, there would clearly be a failure in the maintenance system in terms of either “a proper reactive system” or a “decent preventative maintenance regime.”[120] He also agreed that in practice it would be difficult to operative an effective maintenance system without matters being recorded in written form and probably electronically.[121]
[120]T 361, L 6-26
[121]T 362, L 1-8
134Mr Dohrmann confirmed in re-examination that he had measured the weight of the drive boards for the T16 machine at 3.8 kilograms, which he described as a starting point for the force required to instal them taking into account it was a one handed operation.[122]
[122]T 366, L 20-25 & T 368, L 14

The exhibits
135Many of the exhibits tendered by both parties were relevant to the issue of liability. In particular the numerous still photographs and video recordings showing the process of changing drive boards provided a degree of context with which to better appreciate the operations of the T16 and Clarke Focus machines, which are central to this case.[123]
[123]Exhibits A, B, C, D, 1, 2, 5, 6, 7, 13, 14, 15, & 16
136Exhibit 20, a certificate of accomplishment completed by Mr Mourkakos was of limited use as it related to the earlier T15 machine and was undated.
137Exhibit P, Mr Mourkakos’ WorkCover claim form dated 4 July 2017, was relevant. It describes the circumstances of injury as follows:
“Two machines (scrubbing) one ride on and one push behind. Changed the pads of the machines in a very hard way and using them long hours every day.”[124]
[124]Exhibit P & PCB 233

The competing arguments
138Mr Richards QC principally argued that the system of work required of the plaintiff at Chadstone was unsafe and unsatisfactory insofar as employees such as the plaintiff were required to use what was described as “a lot of force and perhaps maximum force” to fit the drive boards to the T16 machine in order for it to be used.[125] There was no training or induction given to the plaintiff whilst at Chadstone and the evidence of Mr Divanis was supportive of the plaintiff’s version of events.
[125]T 589, L 7-15
139Mr Richards QC submitted that the defendant’s failure to call another employee, Mr Hushein, without explanation raised a Jones v Dunkel[126] inference in favour of the plaintiff’s version, notwithstanding the evidence that was called from Mr Wijesinghe describing a different method of attaching the drive boards to that machine.
[126][1959] HCA 8; (1959) 101 CLR 298
140In further support of the contention for an unsafe system of work, Mr Richards QC referred to the evidence of Mr Cramp to enable a conclusion that a damaged drive board might require additional force varying from 20 per cent up to an impossible situation:
“The employees are being lured into a really hazardous situation of having to … apply extra force only to find it might be impossible or it might do the trick, which would encourage them to do it next time.”[127]
[127]T 591, L 28 to T 592, L 3
141Mr Richards QC submitted that the absence of a safety audit and no evidence of any toolbox meeting directed relevantly towards Mr Mourkakos should lead to a conclusion that the workers themselves were allowed by the defendant to devise their own system in relation to fitting the drive boards with the clear risk of injury.
142Mr Richards QC submitted that the broadly pleaded argument critical of the system of work was supported by authorities such as Chapman v Hearse.[128] Mr Richards QC also submitted that regardless of the court’s finding as to whether the side access door on the T16 machine was jammed or difficult to open, the plaintiff should succeed on the basis that there was effectively no supervision or training and Mr Mourkakos had exposed himself to a risk which remained the employer’s responsibility to reduce or eliminate.
[128][1961] HCA 46; (1961) 106 CLR 112
143I was referred to the evidence of Mr Bekiri as to the employer being aware of problems developing with the drive boards and the effect of corrosion on the retaining clips:
“… we put a new plan in place that all operators must wash out the pads in the first month Harry came across.”[129]
[129]T 454, L 9 & T 462 & T 463
144Mr Richards QC referred also to the evidence of Mr Wijesinghe who had done the same work as the plaintiff over the weekend in support of the proposition that some drive boards were:
“Very hard to fix it. Ah, normally we try for five, 10 minutes. … To use a T16 we had to get the drive board in, even if it was damaged.”[130]
[130]T 509
145An alternative system would have required the provision of spare drive boards available to employees, which again contrasted with the evidence which had been given by Mr Wijesinghe.[131]
[131]T 509
146I was directed also to the evidence of Mr Dohrmann concluding that a competent audit would have been likely to have identified the task requiring workers to use damaged drive boards as amounting to a risk of strain injury that should have prompted earlier intervention.[132]
[132]Exhibit A, PCB 183 at [7.58]
147Whilst Mr Richards QC also touched upon the use of the Clarke Focus machine in final address, the essence of the plaintiff’s case concerned the extent of force required to change the drive boards on the T16 machine.
148Mr Harrison QC on behalf of the defendant submitted that the evidence of the plaintiff concerning the damaged access door on the T16 machine should be rejected. Mr Mourkakos had only raised that issue shortly prior to the trial when meeting with Mr Dohrmann. The absence of any corroborating evidence to be gleaned from the numerous medical histories or other documentation which were put to the plaintiff in cross-examination, should lead the court to reject the plaintiff’s version of events.
149Mr Harrison QC also referred to the inconsistency between Mr Mourkakos’ version of events and that demonstrated by his son at the time of Mr Dohrmann’s inspection. The demonstration was on the right side of the machine – Mr Mourkakos’ evidence stated the left side door had been jammed shut.
150Mr Harrison QC submitted that the absence of a finding that the side access door was jammed shut would leave the court in a position of having to rely effectively on an amalgam of evidence describing occasional difficulty in fitting the drive boards to conclude that such a problem had actually been causative of the plaintiff’s injury. He further submitted that a rejection of the plaintiff’s version concerning the side access door should have implications in terms of Mr Mourkakos’ credit.

151Mr Harrison QC further submitted that whatever the findings concerning Mr Mourkakos’ allegation of complaints, none had been sufficient to alert the maintenance contractor, Mr Cramp, who had regularly attended at the Chadstone site. He referred me to the evidence of Mr Bekiri, whose evidence had been that there was no hesitation in spending money on maintenance:
“… because if he didn’t spend it, he lost it in the budget next year.”[133]
[133]T 569, L 23 to T 570, L 2
152Mr Harrison QC made brief submissions concerning the Clarke Focus machine, taking issue with the force measurements recorded by Mr Dohrmann and noting the absence of any direct complaint of pain whilst using that machine.
153Mr Harrison QC submitted that the question of causation was also relevant, referring to the medical evidence in some detail, including a reference to the initial general practitioner, Dr Ng, who first noted:
“The abovenamed patient of mine of many years duration attended on 20/6/17 and presented with a one week history of right sided neck pain with radiation down to the fingers of the right hand for no apparent reason.”[134]
[134]Exhibit H, PCB 67
154Mr Harrison QC submitted that the probabilities favoured a finding that the plaintiff’s injuries suffered in June 2017 could properly be described as giving rise to a compensation entitlement, but did not warrant a finding that the employer had been negligent:
“This is an industrial cleaning machine, this is how it works, this is how everybody knows it works. So what you’re left with is a man with a degenerate spine, and degenerate shoulder at a certain age group, who is pushing this brush up, the pad up one day, and feels, depending on the version, a comparatively minor or perhaps a more severe pain in his neck and his occiput and some tingling down his arm, that’s it. So that’s not a negligence situation.”[135]
[135]T 569, L 3-23
155Mr Harrison QC submitted that the evidence concerning the Clarke Focus machine, both from the plaintiff and from Mr Dohrmann, was of little assistance. First, there was no contemporaneous complaint of pain from the plaintiff while using that machine. Secondly, as Mr Dohrmann had admitted during cross-examination, the force measurements recorded by Mr Dohrmann involved the machine being manoeuvred with the brushes lowered on to a concrete floor rather than a tiled one, and whilst the machine was full of water.
156Mr Harrison QC submitted that the evidence of Mr Cramp concerning the actual system of maintenance that was employed by the defendant in 2017 should enable a finding that the system itself was both reasonable and appropriate.

Analysis
157There were no issues between the parties as to the nature and extent of the duty of care owed by the defendant to the plaintiff. The defendant owed the plaintiff a non-delegable duty to take reasonable care not to expose him unnecessarily to the risks of injury.
158The central issue is whether the plaintiff has proved a breach of duty. This would involve a finding that the defendant failed to provide the plaintiff a safe system or place of work, nor did it reasonably respond to his complaints made in relation to the difficulties experienced by him in changing the drive boards on the T16 machine.
159The further amended particulars of negligence, which had clearly been drafted following receipt of Mr Dohrmann’s report, set out in some detail the matters relied upon in order to prove the defendant’s breach of duty. Those particulars included the following:
“(i)requiring the plaintiff to operate a ride-on floor scrubber where one of the side skirting gates could not be opened, thus depriving the plaintiff of proper safe access to the drive hub area;
(j)failing to act promptly on the plaintiff’s reports of damage to the ride-on floor scrubber and failing to take it out of service until it was fixed;
(h)requiring the plaintiff to remove and replace pads, the clips of which became rusty, loose and lost their tension/shape, thereby requiring additional force on the part of the plaintiff when removing and replacing the pads.”

160There were further arguments advanced by Mr Richards QC concerning the lack of a suitable training system, with the plaintiff essentially left to his own devices with effectively no supervision or training.
161Mr Mourkakos’ difficulties when changing the drive board were indicative of the defendant effectively leaving the plaintiff to his own devices when it remained the defendant’s responsibility to reduce or eliminate an unnecessary risk of injury to him.
162Insofar as the plaintiff’s case relies upon the Occupational Health and Safety Regulations 2007, the court is required to find that the tasks performed by Mr Mourkakos which were a cause of injury, can fairly be described as “hazardous manual handling”. This is defined in the regulations as follows:
“Hazardous manual handling means –
(a) manual handing having any of the following characteristics –
(i) repetitive or sustained application of force;
(ii) repetitive or sustained awkward posture;
(iii) repetitive or sustained movement;
(iv) application of high force being an activity involving a single or repetitive use of force that it would be reasonable to expect that a person in the workforce may have difficulty undertaking;

(v) exposure to sustained vibration;
(b) manual handling of live persons or animals;
(c) manual handling of unstable or unbalanced loads or loads that are difficult to grasp or hold;”[136]
[136]Occupational Health and Safety Regulations 2007 r1.1.5

163Should the regulations be engaged in such a manner the defendant would then be obligated to perform hazard identification,[137] perform an assessment[138] and control the risk of a musculoskeletal disorder associated with a hazardous manual handling task so as to eliminate it as far as is reasonably practicable.[139]
[137]Ibid r3.1.1
[138]Regulation 3.1.1
[139]Regulation 3.1.2
164The regulations make alternate provisions requiring an employer to reduce the risk by altering factors such as the system of work in circumstances where the risk cannot be eliminated.
165A further obligation requires the employer to control that risk of musculoskeletal disorder associated with the hazardous manual handling task by the use of information, instruction or training.
166The final regulatory obligation relied upon by the plaintiff requires the defendant to ensure that any measures implemented to control risks in relation to musculoskeletal disorders are reviewed and/or revised before particular changes or events occur in the workplace.[140] Such an obligation can be triggered by the report of a musculoskeletal disorder occurring in the workplace being reported by or on behalf of an employee.[141]
[140]Regulation 3.1.3
[141]Regulation 3.1.3(i)(d)
167Ultimately the question concerning a finding on liability, either in negligence or in terms of regulatory breach is largely dependent on whether or not the plaintiff has proved on balance that his version of events concerning the difficulties in operating the T16 machine during the months leading up to June 2017 can be accepted.
168There could be little criticism of the usual or recommended method of removal and re-fitting of the drive boards which were shown on video to take less than two minutes. The plaintiff’s evidence is that the inability to access the drive board area due to the damaged side access door, meant that the plaintiff had to lie on his stomach and extend his right arm in an awkward manner while forcefully applying pressure to re-attach the drive boards. This could, and often did take somewhere in the order of 20 minutes.
169Further, the drive boards themselves could and were damaged, clips were bent, screws were missing, the retaining springs were rusty and added further to the physical stresses required to perform the task.
170On at least one occasion Mr Giannakis had helped the plaintiff with this task. The awkward posture and difficulties accessing the drive board area were clearly demonstrated to Mr Dohrmann in January 2021 when the complaint concerning the jammed side access door was first recorded.
171In my assessment the version of events given by Mr Mourkakos cannot be accepted as reliable. There are a number of reasons tending towards such a conclusion.
·        There was no support from any other witness for Mr Mourkakos’ version of events concerning the jammed side access door being unable to be opened. There was a most surprising omission of any mention of this problem in numerous medical histories, affidavits and answers to interrogatories.
·        The evidence of Mr Cramp, who had performed maintenance for the defendant and a number of other large cleaning companies, suggests a likelihood that the clips securing these side doors may be damaged by an operator causing the machine to collide with a fixed object, but this would ordinarily cause the door to be difficult to close, rather than difficult to open.
·        The plaintiff has not adequately explained why his son was photographed accessing the machine from the righthand side when Mr Dohrmann conducted his inspection, when the plaintiff’s instructions were that the jammed door was on the left hand side of the machine.
·        Further, the evidence of Mr Bekiri and Mr Giannakis is persuasive that there was no recorded complaint of any damage as described by Mr Mourkakos, nor was there any maintenance performed on this particular machine at around the time of the incident.
172I do accept, on the evidence of Mr Mourkakos, Mr Divanis and Mr Wijesinghe that there could be difficulties in attaching the drive board to the T16 machine. Mr Cramp’s evidence also supported such a conclusion.
173There can be little doubt that the drive boards, and in particular the clips, retaining springs and screws, can deteriorate or become unusable over time. Such a conclusion is consistent with the fact that the defendant had directed the removal of the drive boards prior to each shift so that they could be washed and dried for use by the next operator.
174I also have concerns about the plaintiff’s evidence concerning the number of times during a shift the drive boards were required to be changed. The plaintiff says at least twice, and up to four times, and the evidence from the majority of the other witnesses is that they would need to be replaced at the commencement of a shift and then removed, washed and dried at the end of that shift. On this issue again Mr Mourkakos’ evidence lacks support from the evidence of any other witness.
175I have also reached a conclusion that Mr Mourkakos, throughout his evidence, tended to downplay his managerial role whilst at Chadstone. Perhaps this is understandable given the unfortunate injury he has suffered and the effect it has had on his life. It may be that the consequences of his injuries and the undoubted stresses that he has suffered, have caused him to reconstruct to some extent the circumstances surrounding the occurrence of his injury in June 2017.
176I regarded Mr Bekiri and Mr Giannakis as impressive witnesses who were each clearly experienced and acknowledgeable about the roles they were performing in the employ of the defendant during 2017.
177I was also impressed with the evidence given by Mr Cramp, and I am satisfied that during the period relevant to the plaintiff’s claim, the defendant did have in place an adequate and suitable system of maintaining the equipment provided to him.
178Mr Richards QC urged me to draw an inference unfavourable to the defendant on the basis that Mr Hushein was not called. Longstanding authority from the High Court in Jones v Dunkel[142] and Victorian appellate decisions in O’Donnell v Reichard[143] and Earle v Castlemaine District Community Hospital[144] set out the inferences available to a finder of fact from the unexplained absence of a witness expected to be called are twofold. First, that unexplained failure can lead to the drawing of an inference that the evidence which could have been given by that witness would not have assisted the party who could have called the witness. Secondly, the failure by a party to call a witness can be used to assist in the drawing of an inference more favourable to the other party. It is of course impermissible for a court to speculate as to what actual evidence could have been given by the witness who was not called.
[142][1959] HCA 8; (1959) 101 CLR 298
[143][1975] VR 916
[144][1974] VR 722
179In the present case the defendant did call Mr Wijesinghe who worked with Mr Hushein during weekend nightshifts. Mr Wijesinghe did give evidence that Mr Hushein changed the drive boards by lying down rather than by kneeling or perhaps squatting.
180In my view there was no reason why the defendant would be expected to call multiple witnesses working as cleaners or cleaning managers at or about the time Mr Mourkakos was employed at Chadstone.
181Similarly, there is no reason why the plaintiff could not have called Mr Hushein or, indeed, any of the many other cleaners who were directly supervised by Mr Mourkakos between December 2016 and June 2017. This is not a case where it is appropriate to draw an inference adverse to the defendant, nor to use the failure of the defendant to call Mr Hushein as a basis for preferring the evidence of Mr Mourkakos over the direct evidence given by Mr Wijesinghe, Mr Giannakis, Mr Bekiri or Mr Cramp.
182I do accept that the task required of the plaintiff to remove and replace the drive boards from the Tennant T16 machine did involve a degree of force using his dominant right arm. I cannot accept that he was required to adopt the unusual posture described by him to Mr Dohrmann over a period of months leading up to the time of his injury in June 2017. I do accept that due to wear and tear with the drive boards themselves, there may have been occasions when drive boards were more difficult to fit than usual, and may have required some additional force. The majority of the witnesses with experience in these matters, including Mr Cramp, agreed that if the drive board did not go on on the first occasion, it was often difficult to fit, or perhaps impossible, according to Mr Cramp.
183However, this was not the case advanced by Mr Mourkakos. His case was that the side access door was jammed shut and could not be opened for an extensive period. As a result he had to adopt the unusual and awkward posture requiring him to exert excessive force to re-attach the drive boards. I do not accept that this in fact occurred. On this finding of fact I am unable to conclude the defendant breached the duty of care owed to the plaintiff. I do not regard the tasks that he was required to do as involving hazardous manual handling. I am therefore not satisfied that the Occupational Health and Safety Regulations 2007 are relevantly engaged.
184The alternative case advanced by Mr Richards QC was broadly described as being akin to a Chapman v Hearse[145] scenario where multiple failings by the defendant should have been foreseeable as a cause of injury to the plaintiff. Mr Mourkakos’ evidence identified a failure to act upon his report, a failure to properly supervise or instruct him in the use of the T16 machine, a failure to make provision for onsite training such as toolbox meetings, and a failure by the employer to ensure that the equipment, including the T16 machine, was properly maintained and serviced.
[145][1961] HCA 46; (1961) 106 CLR 112
185In essence the accuracy and reliability of the plaintiff’s evidence is critical to a finding in favour of the plaintiff. Having reviewed the evidence given by him, I cannot be satisfied that his evidence accurately reflects the factual circumstances as they existed in the relevant period between late 2016 and mid‑2017. Mr Mourkakos was employed by the defendant as a nightshift cleaning manager. In his evidence he emphasised the physical aspects of his employment, and in my view exaggerated the frequency with which he was required to change the drive boards on the T16 machine, and additionally exaggerated the difficulty in doing so. He was an experienced worker and in my analysis he was using suitable equipment provided to him by the defendant. It may be that he was experiencing some particular difficulty at the time he first experienced symptoms of pain in his neck on 13 June 2017. Whether or not that was the case is simply a matter of speculation. There was no written report submitted to the employer, the initial histories recorded to the treating medical practitioners, and the WorkCover claim form submitted in early July 2017, lead to a conclusion that the general physical nature of the cleaning activities precipitated the onset of symptoms and were relevantly a cause of injury.
186Mr Harrison QC essentially accepted that proposition on behalf of the defendant during his final address. The standard of care imposed on the defendant is not a standard of perfection. It is a standard of reasonable care.
187On the whole of the evidence, I am unable to be satisfied that Mr Mourkakos has proved a breach of duty in negligence, nor any breach of the Occupational Health and Safety Regulations 2007. His claim must be dismissed.
188I will hear the parties on the formal orders sought and on the question of costs.

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[2021] VCC 1648

27 October 2021