Re Bilton and Comcare
[1997] AATA 838
•1 April 2016
Ricaud and Linfox Australia Pty Ltd (Compensation) [2016] AATA 202 (1 April 2016)
Division
GENERAL DIVISION
File Numbers
2014/4609 and 2015/1970
Re
Jean-Michel Ricaud
APPLICANT
And
Linfox Australia Pty Ltd
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 1 April 2016 Place Melbourne The Tribunal sets aside the decisions under review and substitutes its decision that:
(i) Mr Ricaud sustained an injury resulting in incapacity and impairment arising out of and in the course of his employment, involving an initial physical injury namely neuropraxia of the right ulnar nerve and a secondary psychological injury, namely post-traumatic stress disorder with depression and anxiety; and
(ii) the Respondent is liable in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) to make weekly payments of compensation in respect of those periods when Mr Ricaud’s earnings were less than his normal weekly earnings; and
(iii) in accordance with s 16 of the SRC Act the Respondent is liable to make payments for the cost of medical expenses incurred for both injuries; and
(iv) the matter is remitted to the respondent to calculate the payments; and
(v) costs are awarded against the Respondent in accordance with s 67 of the SRC Act.
.................................[sgd].......................................
Miss E A Shanahan
WORKERS’ COMPENSATION – injury occurring at work and in the course of normal work activities – crush injury to the right upper arm – ulnar nerve neuropraxia – persistent paresis – secondary psychological injury – post-traumatic stress disorder – s 14 liability – effect of s 6(3) negating liability if the action was voluntarily and unreasonably submitted and involved abnormal risk of injury – applicant conceded there was an abnormal risk of injury – not voluntary nor unreasonable in the circumstances – decision set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Act 1975
Social Security and Veterans’ Affairs Legislation Amendment Act 1988
Safety, Rehabilitation and Compensation Regulations 2002
Cases
Re Bilton and Comcare [1997] AATA 838
Re Courtis and Linfox Armaguard Pty Ltd (2009) ALD 682
Mendez v Telstra Corporation Ltd (1998) 147 FLR 394
Re Grime and Telstra Corporation (1994) 20 AAR 43
Re Kemp and K & S Freighters Pty Ltd (2011) 123 ALD 79 2011
Re Ralser and Comcare [2012] AATA 510
Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318
Taylor v Stapley (1954) 90 CLR 1
REASONS FOR DECISION
Miss E A Shanahan
1 April 2016
On 3 June 2014 Mr Ricaud suffered an injury to his ulnar nerve when his upper arm was compressed between two rigid horizontal bars (the sealing bar and the roller guide) of a shrink wrapping machine. Mr Ricaud had performed the role of operating this machine for 11 years, between September 2003 and June 2014, as part of his employment duties with Linfox Tobacco.
Mr Ricaud’s right ulnar nerve neuropraxia has not resolved and he has not worked since 11 December 2014, at which time suitable modified duties were said to be no longer available. This physical injury is the basis of the claim for compensation file number 2014/4609.
Mr Ricaud developed symptoms suggestive of post-traumatic stress disorder (PTSD) with nightmares and flashbacks being recorded by his general practitioner within one week of this accident. He was subsequently diagnosed with an unspecified anxiety disorder with the features of PTSD and an unspecified depressive disorder requiring ongoing psychiatric treatment and medication. The psychiatric disorder is the subject of the application 2015/1970.
Liability for the ulnar nerve injury was denied by the respondent on 28 July 2014. This decision was affirmed after review on 1 September 2014. Liability for the secondary psychiatric disorder was denied on 7 April 2015. This decision was affirmed after review on 22 April 2015. The basis for the denial of liability in both cases was the application of s 6(3) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) it being determined that Mr Ricaud had sustained these injuries because he voluntarily and unreasonably submitted himself to an abnormal risk of injury.
Mr Ricaud was represented by Ms K Bradey of counsel, instructed by Hounslow Solicitors. The respondent was represented by Mr P Hanks QC instructed by Moray and Agnew Lawyers. The respondent, in accordance with s 37 of the Administrative Appeals Tribunal Act 1975, provided documentation known as the T-documents. Both parties tendered further exhibits, a list of which is appended to this decision.
Mr Ricaud, Mr R Utting, Ms K Dunstan and Mr T Nicholl gave evidence on behalf of Mr Ricaud. Mr J Felix, Mr S Vernal and Ms P Nambiar gave evidence for the respondent.
It was agreed by the parties that the only issues before the Tribunal were those of liability, in accordance with s 14 of the SRC Act, for both the physical and psychological injury sustained by Mr Ricaud and arising out of and in the course of his employment with the respondent, whether this resulted in an incapacity or impairment, and if so was the liability for compensation negated by the application of s 6(3) of the SRC Act because Mr Ricaud voluntarily and unreasonably submitted to an abnormal risk of injury.
It was agreed by the parties and acknowledged by the Tribunal that there was no question as to the diagnosis of right ulnar nerve neuropraxia, its persistence and the development of a secondary psychological disorder as a result of the physical injury. While the T-documents contain a vast amount of medical opinion and reference to medical records and investigations, these were accepted by the Tribunal and no further medical evidence was called. It was equally apparent from these reports that Mr Ricaud’s injuries persisted as does the incapacity arising from them and that his medical treatment had been limited.
BACKGROUND TO THE APPLICATION
Mr Ricaud arrived in Australia from Mauritius in October 2001 and obtained employment with Linfox Tobacco as a casual store-person in December 2001. In Mauritius he had worked as a computer technician.
In late 2003 he became a full time permanent employee of Linfox. His duties as a store person involved what is termed picking, that is, filling orders for cigarettes, tobacco and related products, placing them in stacked bundles and taking them on a trolley to the machine known as the shrink wrap machine, which is part of a heat tunnel. Store-persons working at Linfox Tobacco in Notting Hill rotate their duties every one to two hours. Of the average 22 or 25 workers on each shift not all were shrink wrap machine operators. The exact number of people qualified to perform this task is uncertain, with Mr Ricaud stating it was 6 of 22 but the team leader believing it was up to 9 or 10 of 25.
The routine is that picking starts at 10.00am. When 15 to 20 trolley loads of orders have been assembled, the shrink wrap machine is turned on at 10.30am. On an average day somewhere in the vicinity of 1,800 orders are dealt with. On a busy day, usually a Wednesday, this may be 2,200 or more so called picks. Throughput is also measured in sticks, a stick equating to one cigarette.
Mr Ricaud commenced operating the shrink wrap machine at 10.30am on 3 June 2014. Some 15 to 20 trolleys were said to be awaiting wrapping of orders. Most of these contained up to 10 items per parcel. Ten minutes into this shift, Mr Ricaud noted that a parcel entering the shrink wrap area was about to fall. In what he describes as a reflex response, he attempted to push the carton back in line by reaching between the sealing bar below and the shrink wrap guiding bar above.
The rising sealing bar trapped and compressed Mr Ricaud’s right upper arm just above the elbow. As Mr Ricaud was unable to withdraw his arm from the shrink wrapping machine he pressed the emergency stop button with his left hand. While this stopped the power supply it did not deactivate the air-compressor that operates the sealing bar. A work colleague endeavoured to free Mr Ricaud’s arm using a crow bar to prise open the gap between the two rigid structures. Mr Ricaud’s arm was freed after approximately five minutes.
Mr Ricaud immediately experienced severe and constant pain in his right upper arm with a burning sensation in the forearm and numbness and tingling in his fingers. He was taken to the nearest general practice and, after being seen by a doctor, was transferred to the accident and emergency department of the Valley Private Hospital. At Valley Private Hospital he was seen by a Dr West and underwent an ultrasound examination of his right upper arm. This lead to a diagnosis of right ulnar nerve neuropraxia.
Mr Ricaud was subsequently seen by Dr David Moses, a consultant neurologist, and underwent nerve conduction studies that confirmed the diagnosis. Dr Moses predicted that recovery would not occur in under eight weeks and that the only effective treatment would be physiotherapy in the form of hand therapy and the use of an anti-claw splint at night.
Mr Ricaud was provided with a certificate of incapacity for work until 9 June 2014 by Dr West. Following attendance at the accident and emergency department, Mr Ricaud returned to Linfox Tobacco at Notting Hill. A discussion was held with the manager Ms Nambiar, the warehouse supervisor Mr Felix, and the team leader Mr Vernal and it was recommended that he remain at work. Subsequent medical advice was that he was fit for modified duties. Mr Ricaud initially worked in telephone answering duties, then on gate access duties and finally resumed some picking using his left hand. Mr Ricaud had weekly hand therapy paid for by Linfox until late June 2014. He continued to pay for weekly hand therapy by himself until October 2014, when treatment ceased as he could no longer afford it.
Within a week of the accident Mr Ricaud developed symptoms suggestive of post-traumatic stress disorder (PTSD), these being flashbacks and reliving of the accident and nightmares. He became irritable and anxious. He saw a psychologist for cognitive behaviour therapy and counselling once a week over a period of five weeks, and then for financial reasons accessed the Medicare based system of 10 treatments by a psychologist.
In relation to his hand therapy, Mr Ricaud was referred to a public hospital for such treatment but had to wait five months for an appointment. While he has been assessed as needing such treatment, he is still waiting for it to commence. Currently he takes Endep and Targin for pain control and Temaze, a hypnotic, to assist with his sleeping. Previously he had been on Endone and Lyrica but these have been ceased.
On 11 December 2014 Mr Ricaud was called to see Ms Preeta Nambiar who is the contract manager of the Notting Hill tobacco complex. He was told that modified duties could no longer be provided. He was stood down indefinitely. Mr Ricaud has not worked since.
ORAL EVIDENCE BEFORE THE TRIBUNAL
Mr Jean-Michel Ricaud
The medical aspects relating to Mr Ricaud’s injury have been set out above under Background to the Application. Mr Ricaud gave further detailed evidence regarding his duties and his training. Mr Ricaud said that when he started working for Linfox Tobacco in 2001 he received no training whatsoever but learnt on the job. He attended the toolbox meetings, but was not certain he attended every week. He agreed employees were told not to put their hands into the shrink wrapping machine nor the heat tunnel. Despite this, he said that all employees who operated this machinery did put their hands into the area of the shrink wrapper.
To Mr Ricaud’s knowledge there were 8 to 10 store persons working in his warehouse who operated the machine on a rostered daily basis. He said that employees could not see the signs stating Warning Keep Hands Clear from the front of the machine, the heat tunnel, or from the side on which the operator stands. Mr Ricaud had knowledge of Mr Bruce Utting having his arm trapped in the heat wrapping machine in approximately 2009, but was aware that he had not suffered any injury as a result.
Mr Ricaud explained that parcels placed in front of the ram progressed from the table, across the gap between the steel shelf and the conveyor belt and then stopped on the conveyor. He estimated that one in five parcels placed in front of the ram became mal-aligned during this process. In his experience, if items were mal-aligned or displaced prior to the sealing bar descending, they were likely to be compressed, that is, squashed, by the descending sealing bar. Mr Ricaud was unaware of the presence of a sensor on the lower surface of the sealing bar, or that there was no sensor on the upper surface of the sealing bar. When advised of the sensor operating during the descent of the bar, he concluded that given his experience it must frequently fail to work.
According to Mr Ricaud there was pressure to maintain a rapid throughput of orders and that stopping the process, either by turning off the machine or opening the gate behind the heat sealing compartment, resulted in the loss of approximately six to ten seconds in the throughput time of an order. On occasions when the plastic wrap that spans the heat wrapping compartment was not placed properly, it was necessary to remove the scrambled plastic wrapping material. Those orders that were incorrectly wrapped had to be taken back to the front of the machine and the process repeated.
Three weeks after his injury at work, Mr Ricaud took a photograph of the shrink wrapping machine and this was tendered into evidence (Exhibit A1). Mr Ricaud was uncertain as to whether the machine depicted in the photograph was the same machine that has been depicted in the video shown by the respondent to all witnesses.
According to Mr Ricaud, the team leader and other members of staff in the warehouse were all aware of the common practice of machine operators to put their hands into the heat sealing machine/shrink wrapper to realign displaced items in an order, and also to rescue the order sheet that was not infrequently displaced.
Mr Ricaud was asked to provide times for the descent of the sealing bar and its return to the neutral position where it stops. He estimated this would take three to four seconds. When he noticed that the particular parcel was about to lose one carton of cigarettes he didn’t stop to think, put his hand above the sealing bar and endeavoured to push the carton back onto the pile of items.
Under cross-examination, Mr Ricaud agreed that the video recording showed that the unmodified machine rises more quickly than it descends. He agreed that it was possible to reach under the bar to realign the items, but said this would result in the bar’s descent stopping with a consequent loss of time. Mr Ricaud agreed he had attended the toolbox meetings but could not recall discussions relating to the risks of putting hands under the bar. He agreed that Linfox had never authorised workers to put their hands into the shrink wrapping machine, but could not recall being told that this practice was prohibited.
Having viewed the video, Mr Ricaud was asked if the parcels seen were representative of a usual day’s wrapping procedures. He believed the parcels in the video were smaller and generally of a rectangular shape, with some of the items being in a box. He said it was the norm for there to be a variety of order shapes and these might be triangular, cubic, arranged in rectangles or even in steps. Rubber bands were used to attach pouches of tobacco to cartons, but the entire order was not restrained by any such means. Mr Ricaud denied ever having seen the Safe Work Practice document.
Mr Bruce Utting
Mr Utting provided a statement (Exhibit A3) and gave oral evidence. He estimated that one in 10 to 12 items were displaced from orders. He said it was his practice to wait for the sealing bar to come up and then push the object through. He said it was common practice to have to realign or push orders onto the conveyor belt, which in the initial stages was stationary.
Mr Utting had worked at Linfox Tobacco as a store person for 12 years. He believed that 10 of that warehouses’ workers operated the shrink wrap machine and most of them found the need to push items into the wrap machine. He was aware that once the sealing bar was fully up, no damage could be done. Mr Utting estimated that the time of descent of the sealing bar was three to four seconds and the rise to the neutral position a further three to four seconds.
Mr Utting said that in the course of his employment, up until June 2014, no one had ever intervened to stop him putting his hands into the machine. After Mr Ricaud’s injury the machines were altered extensively so that it was impossible to insert one’s hands above the sealing bar at any time. A large Perspex shield had been attached to the machine above the sealing bar. Mr Utting thought it was possible that workers could introduce their hands at the side of the shield.
Approximately six years ago, Mr Utting had inserted his arm above the sealing bar in order to realign an order and had been trapped in that position. He did not suffer any injury.
In cross-examination, Mr Utting was asked to view the video which he said showed the operation of the second, rarely used, machine; not the one that injured Mr Ricaud. Mr Utting agreed he had attended the toolbox talk on 30 March 2011, but he did not recall the contents of that meeting or that a document entitled the Head Operator Paper had been read out at the meeting. Mr Utting was aware that if the gate at the side of the machine was opened the machine stopped, and that Linfox neither encouraged nor permitted workers to place their hands in the machine. While Mr Utting knew one could stop the machine by pressing a button, he believed the fact that it was labelled Emergency Button indicated it was to be used infrequently. In his 12 years of employment he had never pressed the red emergency button.
While Mr Utting agreed that there were no key performance indicators (KPIs) applied to individual workers, there was pressure to maintain the throughput and keep the trolleys in circuit for the pickers to complete orders. In his experience if the heat sealing bar hit the parcel it would crush it and then stop. Mr Utting had not seen a copy of the Head Operation document prior to Mr Ricaud’s injury, but agreed that the document had been gone through and emphasised since the incident.
In response to a question from the Tribunal regarding the emphasis on throughput and avoiding delays, Mr Utting agreed that the employer tried to avoid overtime payments. While Mr Utting was aware that the sealing bar’s descent would cease once it had hit and potentially crushed a parcel, he said he did not know there was a sensor in the under surface of the bar.
Ms Kerrie Dunstan
Ms Dunstan worked for Linfox Tobacco at Notting Hill as a store person for 17 years. She retired in 2012. She provided a statement relating to her work duties and experience (Exhibit A4). Ms Dunstan estimated that one in 15 to 20 parcels became mal-aligned and required her to put her hand into the shrink wrapping machine to realign them.
Ms Dunstan had no knowledge of whether the supervisor was aware of her actions, but said that in her experience everyone who worked in this area followed the same practice. She said she had never been told not to put her hands in the shrink wrapping machine. Ms Dunstan was aware that Mr Utting was injured, as she turned off the machine entrapping him, but she was totally unaware of the action of the air-compressor. While she said she knew there was a risk associated with her actions, she believed she was quick enough in realigning parcels to negate such a risk.
In cross-examination Ms Dunstan said that, in her time at Linfox Tobacco, the rotation periods were longer than one hour. Ms Dunstan said that when she left in 2012 she was spending one and a half hour stints on the heat wrapping machine. She said she had never been trained in its operation. She had no knowledge of the placement of a sensor on the under surface of the heat sealing bar and she herself had put her hands in below the bar when she adjusted parcels.
Ms Dunstan did not recall being informed of the Safe Work Practice document or that it had been read to her. She believed that the descending sealing bar would squash a parcel if it was not correctly aligned. She herself had never used the gate to access the heat sealing machine as it stopped the operation of the entire machine, resulting in a loss of time and delay in providing empty trolleys for picking purposes.
Mr Trevor Nicoll
Mr Nicoll has worked for Linfox Tobacco Notting Hill for approximately three years and is that site’s union representative. He provided a statement (Exhibit A5). Mr Nicoll estimated the site would process 1,500 or more parcels per day. Mr Nicoll said that in one in 50 to one in 100 of these parcels the order sheet, placed on top of the stacked items, would float off resulting in the need to stop the machine and replace the sheet. He believed he inserted his hands into the machine once in every 20 parcels. He estimated that 6 employees out of a total of 22 were trusted to operate the shrink wrapping machine. In his experience all of these employees put their hands into the machine. He said supervisors were all well aware of this practice and did nothing to stop it.
Mr Nicholl said the heat wrapping machine and heat tunnel were heavily modified after Mr Ricaud’s accident. The guiding bar was removed, and the safety system was changed so that the ascent of the sealing bar was slowed and when it reached the neutral position became limp, as the air-compressor cut-out. A large rigid plastic sheet has been installed at the front of the machine which rises and falls with the sealer bar. This prevents any operator from placing their hand into the machine above the bar.
Mr Nicoll agreed that he had attended toolbox meetings where the operation of the machine had been demonstrated and that operators had been told not to put their hands into the machine. These meetings appear to have been after Mr Ricaud’s injury. In Mr Nicoll’s experience the sealer bar could cut your skin if you placed your hand or arm beneath it. Before Mr Ricaud’s injury, he had put his hand in as he thought necessary as he believed there was no risk.
In terms of his training, Mr Nicoll said this had been limited to being instructed as how to press the two green buttons that commenced the operation of the machine. When Mr Hanks suggested it was Linfox’s policy for the machine operators to go to the gate, Mr Nicoll denied that that was the case. He said that policy had only been introduced after Mr Ricaud’s accident. Mr Nicoll said that at the time of the incident the policy had been to press the red emergency button.
Mr Nicoll said he had seen the Head Operation document for the first time one month after the incident. He agreed that the most dangerous way to fix a problem with the alignment of an order was what Mr Ricaud had done in placing his arm above the sealing bar.
THE RESPONDENT’S WITNESSES
Mr Josian Felix
Mr Felix is the warehouse supervisor at Notting Hill overseeing the three warehouses. He has held this position since May 2009. Mr Felix occupies an office in the administration area and spends 4 to 5 hours of his 7.6 hours per day in the office and 2 to 3 hours per day on the floor in the warehouses. He has provided two statements, one dated 1 April 2015 (Exhibit R4), and the other on 3 December 2015 (Exhibit R5). In his evidence Mr Felix identified the machine in the video as being one sited in a country area. He said this was very similar to the machine used at Notting Hill in 2014 and the operation of the machines was identical.
Mr Felix confirmed that the usual practice was for the pickers to assemble orders sufficient to fill 15 to 20 trolleys before the shrink wrapping machine was turned on. He also confirmed that there was a sensor mechanism in the descending sealing bar which, if it contacted an object, would immediately reverse its descent. The only way the sealing bar could come down again was if the reset button was pressed by the operator. This involved pressing two green buttons on the steel loading table.
Mr Felix was informed by Mr Hanks that the evidence was that all shrink wrapping machine operators used their hands to clear parcels. Mr Felix agreed this could well be the case, although if he had seen them he would have told them not to do so. He could not recall ever having intervened in such a way. Nor could he recall seeing Mr Ricaud putting his hands into the machine. Mr Felix had seen parcels fall over and he estimated this occurred once in 50 packages. Mr Felix said this depended on the pick size and some problems with the machines, namely the ridge between the steel table and the moving conveyor belt. According to Mr Felix the procedure to stop the machine functioning was to press the emergency button or open the side gate. He said that it may be necessary to stop the machine for some time if the plastic wrap was torn and needed to be removed.
Mr Felix had conducted the toolbox meeting on 30 March 2011 and the topic of that meeting was the Head Operators’ Task. He had read out the instructions to the group. Several documents were appended to Mr Felix statement of 3 December 2015 (Exhibit R5) and these are referred to under documentary evidence.
Mr Felix’s main responsibility is the monitoring of KPIs, in particular the timing of tasks and the time taken by forklift drivers, but did not extend to timing separate tasks by store persons. In cross examination Mr Felix agreed that the video showed ideal package sizes and that this did not represent the normal day’s work, although he later said 80 per cent of the orders would have been that shape but perhaps smaller in size. In his experience the order forms flying off the pile of items was a rare occurrence and when it did occur the dislodgement was invariably where the ram stopped, that is where the steel table meets the gap before the conveyor belt.
According to Mr Felix, parcels were never crushed but the heat sealing bar could burn the cellophane surrounding cigarette cartons. Mr Felix placed the highest rate of malalignment as being 1 in 20. He stated that the machinery was subjected to maintenance service twice a year, one of these being a major overhaul and the other minor, and that other malfunctions or problems were dealt with as needed. Mr Felix denied that 3 June 2014 was a particularly busy workday and said he thought the pick number on that day was of the order of 1,800 according to what is termed the scoreboard. The Tribunal asked if the workers were set a goal. He said yes this was correct and he had only been provided with the actual number for 3 June the day before he gave evidence. While Mr Felix had never seen an operator place their hands in the heat sealing cabinet or shrink wrapping machine he was aware they did, having been informed by other workers of this habit.
Mr Felix was questioned at some length regarding the subject matter of the toolbox meetings and he could not recall whether at either the meeting of 30 March 2011, or those of 2014, he had discussed the risks of the procedures. Mr Felix stated that he would occasionally help out in the functions on the warehouse floor. He said that when he had operated the shrink wrap machine he could not recall whether he himself had ever put his hand or arm into the machine. As Mr Ricaud had been working at the warehouse for many years before Mr Felix became the warehouse supervisor, he had not instructed him regarding the presence of sensors in the cutting bar and such risks as he had assumed he knew.
Mr Felix agreed that there had been numerous changes made after Mr Ricaud’s accident, but he did know why the guard bar had been removed, other than to say a mechanic had suggested that this was appropriate. He was aware that changes had been made so that the air-compressor cuts off when the emergency button is pressed. In addition, a plastic guard had been added and was attached to the sealing bar so that it was impossible for an operator to place their hand in the shrink wrap compartment. Mr Felix said that a lot of practices had been in place for many years before he started work at the warehouse and he had not altered these. For example, the method of folding the order sheet and placing it on top of the parcel in what he called a funny shape was a well-entrenched procedure.
Mr Steve Vernal
Mr Vernal is the team leader in the warehouse where Mr Ricaud worked and has held that position since February 2011. He provided a statement dated 1 April 2015 (Exhibit R6). He said he was responsible for 25 employees when all were present and it was his job to make sure the warehouse was running smoothly. He was also on the floor as one of the workers throughout his day. He performs all tasks but, mainly works as a picker and only very occasionally operated the shrink wrapping machine.
Mr Vernal said he had never seen an item crushed by the sealing bar as it retreated immediately if it struck an obstacle. He was aware that it was a common practice for workers to put their hand into the shrink wrapping machine and said he had told them on several occasions not to do so. Where it was necessary to use the side door or the emergency stop button the wrapping process would be delayed, he believed, by six to seven seconds. Where a carton or cartons fell off and there was a need to restack the items the delay following stopping the process would be 10 seconds.
Mr Vernal could not recall the March 2011 toolbox meeting. As team leader it was his responsibility to make the decision as to when the heat tunnel would start operating and he usually waited until there were 20 trolleys waiting in line. He informed the Tribunal that casual workers started at 11.00am. As such, it was very uncommon for the permanent staff to be required to perform overtime duties.
Mr Vernal had seen parcels dislodged and estimated the frequency of this as 1 in 50 parcels. He said it normally happened where the metal operating table met the conveyor belt, the latter being stationary during the sealing procedure.
Mr Vernal was aware that modifications had been made to the shrink wrapping machine after Mr Ricaud’s accident and was well aware that a screen had been placed at the front of the machine, attached to the sealing bar, so that it was impossible to introduce an arm from the front of the machine. He was not aware of any of the other modifications declaring them to be too technical for him.
In cross-examination, Mr Vernal was asked what training he had received when he commenced work at Notting Hill in February 2011. He said he had received training in all three aspects of the warehouse function and on the shrink wrapping machine for one hour although he has never been rostered to perform those duties. Having viewed the video he agreed that the video showed parcels that were all uniform in size which was not the norm and agreed that more irregular shaped parcels were more likely to dislodge. In particular light parcels would dislodge as they had not enough momentum to transit the gap between the table and the conveyor belt. He agreed that it was common for order forms to fly off while in the shrink wrapping machine. He also agreed that the machine did not always wrap properly and maintenance was required every six to seven weeks after something had been identified as wrong with the machine. He said these faults were normally identified every four weeks. He said it took a while for them to realise that something was not functioning properly.
According to Mr Vernal, Tuesday was a busy day and on Tuesdays there were lots of small parcels. At the time of Mr Ricaud’s accident, Mr Vernal estimated that there were 12 store-persons working. According to the day’s roster (Exhibit R5) there were 13. He agreed that Mr Ricaud had placed his hand into the shrink wrapping machine as a reflex action. He was not aware that Mr Ricaud did not know that there were sensors in the sealing bar on the under surface, and had assumed given the length of Mr Ricaud’s employment that he was aware of these things. He himself had been taught by Ms Dunstan and according to Mr Vernal she had told him of the existence of a sensor on the under surface of the sealing bar.
Ms Preeta Nambiar
Ms Nambiar is the contract manager of Linfox Tobacco Notting Hill and oversees all three warehouses. She has occupied this role since August 2010. Her responsibilities are in the areas of finance, the employees and clients. She provided information as to the throughput on various days with 1,700 to 1,900 picks being the average for a Tuesday. She provided the e-record for the 2, 3 and 4June 2014 (Exhibit R8). Ms Nambiar works from an office in the administration area away from the warehouses. She spends four to five hours a day in the office and two to three hours divided between the three warehouses.
Ms Nambiar had no involvement in the training of staff, nor did she have any knowledge of the extent of Mr Ricaud’s training. When asked if workers placing their hands in the shrink wrapping machine was common practice, she said she had no comment to make. Ms Nambiar had no knowledge of the events of 3 June in terms of Mr Ricaud’s injury, the number of trolleys in queues, or other particular details and had clearly relied on information provided by Mr Felix and Mr Vernal.
DOCUMENTARY EVIDENCE
Medical Evidence
There is a considerable volume of medical reports relating to Mr Ricaud’s injury but as there is no disagreement as to the cause, in the terms of the mechanical events and the resultant injury, these will not be considered in any detail. The diagnosis has been confirmed by numerous medical experts.
Of some relevance, however, is the report of Professor Chalmers (Exhibit R9) who had assessed Mr Ricaud in late 2015 and was of the opinion that it was unlikely that he would experience full recovery from his right ulnar neuropraxia. Professor Chalmers believed that with weekly hand therapy improvement should be achieved over the next 12 months. Professor Chalmers agreed with Mr Ricaud’s current medication regime.
Toolbox Meetings
The Tribunal was provided with copies of several toolbox meetings conducted by Mr Felix on 14 and 19 May 2010, 30 March 2011, 9 February 2011, 17 August 2011 and 29 December 2012 (Exhibit R5 attachments JF3). Mr Ricaud had attended all of these meetings. Some of these items were filed with the Tribunal on 27 October 2014 but were not formally tendered at the hearing. The Tribunal takes this to be an oversight, given the majority of witnesses were questioned regarding all of these documents. The toolbox meeting forms list the topics for discussion and instruction. The topics for 14 May 2010 relate to the reporting of heat tunnel faults or missing parts of the heat tunnel machinery. On 30 March 2011 there was discussion of parcels being caught in the heat tunnel and objects falling from these parcels. Staff were instructed to use rubber bands to secure the parcels.
Mr Felix had given evidence that during these meetings he would have drawn workers attention to other safety aspects and would have discussed safe work practice, head operator procedures and heat tunnel operations from a safety perspective.
Safe Work Practice Documents
The head operator instructions, which are presumably available to all employees, state at 3.2 that the pick slip is to be placed on the top of the stock with the printed side facing up prior to the items going through the heat wrapping machine. Workers are instructed at 1.2 to know where the emergency cut out switch is located and how to use it, to use the safety guard door to access the machine if a parcel gets stuck, and at 4.2 not to place hands under the sealer if a parcel gets stuck. The head operator instructions were issued on 21 February 2006 with the next review date being January 2015.
A similar pamphlet provided related to the use of shrink wrapping itself and how to change the rolls of plastic wrap and the removal of loose wrapping and string.
Within the document DP4: Heat Tunnel Operations dated 17 May 2014, procedures of start-up and shut-down, activating the ram, maintenance, clearing jams and changing the plastic wrap rolls and operating the air compressor were dealt with. This document identifies the risks of the heat tunnel operations as being:
·Pinch, crush, shear and laceration points
·Compressed Air
·Manual Handling Injury
·Fire from trapped lighters
·Burns
It also states under precautions that Escaped pressurised air can freeze-burn and shear flesh.
Details relating to the air-compressor start up and shut down are provided. At the start of the day the air release valve is to be fully closed and the power switch then turned on (2.01). At the end of the working day, while wearing eye and ear protection and gloves, the worker is to turn the power switch off and then half-open the air release valve (2.02). The document states do not put your hand underneath the air-release or high-pressure air escaping will cut through your hand and cause severe cryogenic burns (2.02(e)). Similar instructions are provided for the start-up and shut-down of the wrapper and heat tunnel. The document also states that hands must not be placed in front of the moving ram (4.07(b)), that the worker should never interact with the conveyor while active (4.09) and provides the caution that: The ram may activate when the Air-Compressor is first turned on (4.10).
The plastic wrap used is said to be a highly flammable substance of high-risk (6.04-6.05). The heat tunnel maintenance was said to be performed every six months by an electrical contractor (6.06).
Vision Zero has assessed the potential hazards in the warehouse and rated the possibility of a worker being crushed by the heat bar, being injured by the air-compressor and being exposed to manual handling ergonomic injuries due to repetitive movements as medium. This document is dated 17 May 2014. Vision Zero appears to be a subsidiary or section of Linfox providing safety advice/procedures to Linfox and other companies.
Repairs and services undertaken April 2014 in relation to the heat tunnel operating machinery
During this period several services were required for minor repairs and, on 1 October 2013 a new head cylinder was installed in the shrink line. The Tribunal assumes this refers to the shrink wrapping line. On 10 April 2014 the film feed motor on top of the shrink wrapping machine was replaced. On the same date the machine isolator switch and bottom solid state relay for the heater elements were also replaced.
New installations following Mr Ricaud’s injuries
Following Mr Ricaud’s injury, Linfox undertook several measures to prevent a similar occurrence. The air-compressor activation and deactivation system was altered so that there is now no lag time in the reduction of air-compressor pressure when the power is turned off on the shrink wrapping machine, the rigid guiding bar at the upper extremity of the wrap machine was removed and the sealing bar itself was altered so that it is no longer rigid and now collapses. It is not clear whether the sensor remains on the lower side of the now collapsible sealing bar.
Video recording of wrap machine operations and photographs of this machine
The Tribunal has been provided with still photographs of the controls of the machine, the actual shrink wrap area of the machine and the ram following the safety installations that occurred following the accident. Photographs have also been provided displaying the warning signs saying KEEP HANDS CLEAR. These are placed on the back and the sides of the machine but are not visible from the front.
Mr Ricaud had himself taken a photograph of the machine he was operating at the time he sustained he sustained his injury (Exhibit A1) and this clearly differs from the machine displayed in the video.
The video has been shown to all of the witnesses who gave oral evidence. The Tribunal has as a result seen it at least seven times and viewed it outside of the hearing. The machine was identified by Mr Felix as being a machine in operation in a country centre.
The video runs for approximately 1 minute and 12 seconds and shows a female worker loading rectangular shaped collections of items in front of the so called ram. Following this she pushes two green buttons on the table activating the ram that projects the items into a veil of plastic wrap. This surrounds them in the transverse diameter and the sealing bar then descends, heat seals the plastic wrap and the parcel, which still has either side unsealed, moves on into the heat tunnel.
The procedure appears to take probably five to six seconds, although the speed of the video is not known to the Tribunal. On occasion in the video of the sealing of approximately six parcels, there is a deviation from the midline with the parcel pile being slightly askew when plastic wrapped. On one occasion the plastic wrap fails to envelop the items and flaps in the breeze like a sheet on the line. The video also shows the female worker accessing the heat wrapper machine via the side entry gate which, when opened, disconnects all power (Video, Exhibit R10).
RELEVANT LEGISLATION
Section 14 of the SRC Act provides for compensation for injuries stating:
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
Section 5A of the SRC Act defines an injury. It has been agreed that Mr Ricaud’s neuropraxia is an injury. The section states:
5A Definition of injury
(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 6 was amended in 2007 and 2011 and now has the same effect as when enacted under the Social Security and Veterans’ Affairs Legislation Amendment Act 1988 effective from 1 December 1988. A new s 6(3) was also introduced. Section 6 of the SRC Act states:
Injury arising out of or in the course of employment
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
…
(b) while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
...
(3)Subsection (1) does not apply where an employee sustains an injury:
(a)while at a place referred to in that subsection; or
(b)during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury
Sections 6(1)(a), (c) to (g) and sections 1A, 1B, 1C are not relevant in this matter.
SUBMISSIONS
On completion of the oral evidence, Ms Bradey conceded that Mr Ricaud had exposed himself to an abnormal risk, but not that this was voluntary or unreasonable.
Ms Bradey submitted that Mr Ricaud was entitled to compensation in accordance with s 14 of the SRC Act by virtue of s 5A alone. Ms Bradey submitted that s 6 had no application in this factual situation as s 6 had the effect of extending the operation of s 5A to cover predominately injuries occurring while the employee was travelling or performing duties outside of the place of employment, all such actions being taken with the employers approval. She contended that s 6(1) did not limit the circumstances applying to an injury as outlined by s 5A of the SRC Act. Ms Bradey argued that if s 6(1) did apply, s 6(3) was not attracted, and as such that s 5A and s 14 were the only relevant requirements.
Based on the facts, Ms Bradey contended that Mr Ricaud’s right ulnar nerve neuropraxia was caused by a compression injury which occurred at work and in the course of work. It was clear that while there were existing safe work operating instructions and documents, the reality of workforce operations was different to that documented and recommended by the Respondent. The evidence of the four witnesses, including Mr Ricaud, who had operated the shrink wrapping machine on a daily basis, was that all placed their hands within the machine in order to realign parcels and prevent them from being damaged or improperly wrapped.
Mr Vernal the team leader at Linfox Tobacco Notting Hill warehouse had conceded in his evidence that this practice of operators putting their hands into the shrink wrap machine had continued despite him having instructed workers not to do so. The Respondent did not call evidence to refute that this was a common practice. Ms Bradey contended that the enforcement of safety rules fell well short of the level to be expected.
Mr Ricaud gave evidence that he had never undergone formal training in relation to his duties. In particular, he said he had not been formally trained to operate the shrink wrap machine, a duty confined to only a few trusted members of the workforce at the warehouse. Mr Vernal, the team leader, had said that he had received one hour of training on the shrink wrap machine when he commenced work with Linfox. It was his evidence that he rarely ever operated this machine and he had never been rostered to do so on the duty list.
It was conceded by Ms Bradey that the applicant was not following safe work procedures. Ms Bradey said, however, that the Applicant was performing an impliedly approved procedure in the course of his employment in a manner which had been undertaken for some 11 or 12 years.
As Mr Ricaud’s psychiatric disorder, be it PTSD or an adjustment disorder with anxiety and depression, was secondary to the physical injury it is compensable under s 14 of the SRC Act. All the expert psychiatric evidence was to that effect.
Should the Tribunal find s 6(3) did apply, and in light of the concession that Mr Ricaud had exposed himself to an abnormal risk, Ms Bradey submitted that his actions on 3 June 2014 were not voluntary, as he reacted immediately and described his response as a reflex action as did his team leader Mr Vernal. Mr Ricaud had given evidence that he was totally unaware of the presence of a sensor on the lower surface of the sealing bar, let alone that there was no sensor on the upper surface of the sealing bar.
Similarly, neither Ms Dunstan nor Mr Utting were fully acquainted with the positioning of sensors and their function. The evidence was that most of the workers did not know where the warning stickers were placed, there existed an unacknowledged time pressure in the packing of trolleys with orders and their delivery to the shrink wrapping machine, the operation of which was delayed until 15 to 20 trolleys were lined up, and to the general avoidance of overtime in the warehouse as confirmed by Mr Vernal in his evidence before the Tribunal.
Mr Ricaud had not ever considered the alternative options in particular the stop button as the latter was labelled emergency button and in his 13 years of working at the site he had never before pressed it.
In her submissions, Ms Bradey relied on the Tribunal decision in Re Courtis and Linfox Armaguard Pty Ltd (2009) ALD 682. In Courtis, Senior Member Friedman determined that as Mr Courtis was at his normal place of work and engaged in his usual duties when the injury occurred, s 6(1) of the SRC Act was not attracted and s 6(3) was not relevant to the application under review. The Tribunal determined that s 6(1) expanded the meaning but did not limit the words arising out of and in the course of employment in the definition of an injury.
In Courtis, the Tribunal relied on the decisions of Mendez v Telstra Corporation Ltd (1998) 147 FLR 394 and other decisions interpreting s 6(1)(b) as deeming provisions to extend the meaning of the terms injury arising out of or in the course of an employee’s employment.
Ms Bradey sought that the Tribunal set aside the reviewable decision and that the Tribunal determine that Mr Ricaud had suffered an injury in the course of and arising out of employment giving rise to entitlement pursuant to s 14 of the SRC Act, including the payment of weekly compensation in accordance of s 19; the cost of medical expenses in accordance with s 16 and that the respondent’s pay the applicant’s legal costs and disbursements pursuant to s 67 of the SRC Act.
Respondent’s submissions
Mr Hanks supplied written submissions to which he spoke. He submitted that s 6 of the SRC Act lessens the burden on employers by deeming injuries to have arisen out of or in the course of employment, in line with it being a beneficial legislation, but does provide in s 6(3) exclusions limiting an employer’s liability where the injury was sustained as a result of the employee having voluntarily and unreasonably submitted to an abnormal risk of injury. It was argued that the mandatory language of s 6(1) was such that the section was attracted if the injury had arisen out of and in the course of employment. On the evidence before the Tribunal it was contended that the circumstances fell squarely within s 6(1)(b) and attracted s 6 and therefore s 6(3).
Mr Hanks differentiated the evidence of Ms Dunstan and Mr Utting from that of Mr Ricaud in that they said they had placed their hand into the shrink wrapping machine below the sealing bar; an action which would automatically stop the descent of the bar. Mr Ricaud had placed his hand and arm above the bar, attracting a far greater risk of injury.
Mr Hanks contended that Mr Ricaud’s action was not a reflex action but a habit amounting to a conscious choice developed over a period of 10 or more years which involved ignoring the emergency stop button. In his written submissions, Mr Hanks addressed the evidence of the Linfox employees’ including the variations in their knowledge of the operation of the machine and the risk attracted by placing one’s hand above or below the sealing bar.
The workers’ assessments of the incidence of parcels being dislodged or stuck in the system varied greatly, with the workers reporting the incidence to be higher than that observed by the managers or team leader. Similarly, there were variations in their knowledge of the presence or otherwise of sensors in the sealing bar and inconsistency in the evidence as to whether the sealing bar was capable of crushing a carton of cigarettes, as opposed to searing the cellophane wrap.
Mr Hanks relied on the decision in Re Grime and Telstra Corporation [1994] 20 AAR 43 with respect to the applicants admitting to a risk of injury voluntarily and without compulsion, that of Re Kemp and K & S Freighters Pty Ltd (2011) 123 ALD 79 2011 in relation to submitting to an abnormal risk of injury and Re Ralser and Comcare [2012] AATA 510 in relation to whether Mr Ricaud’s action was objectively unreasonable. It was contended that as Mr Ricaud had worked the shrink wrap machine for more than 10 years, he must have understood the characteristics of the machine and could be expected to accept responsibility for his own actions. It was denied that any workers were under a time pressure, and Mr Hanks argued that Mr Ricaud’s perception of such a stressor was irrelevant.
It was contended that Mr Ricaud fully appreciated the nature of risks that he was running, that he had been trained in the use of the wrapping machine and had attended toolbox meetings on a regular basis. The instructions don’t put your hands in the machine where contained in most of the toolbox detailing of the meeting items to be considered. This was despite the evidence of Mr Utting and Ms Dunstan, who were also at the toolbox meeting in 2011, being unable to recall any such discussion having taken place.
Mr Hanks contended that the Tribunal should affirm the decision under review, given the preconditions attracted by the application of s 6(3) of the SRC Act.
TRIBUNAL’S DELIBERATIONS
In the consideration of its decision the Tribunal became aware of the relevance, in terms of the severity of Mr Ricaud’s injury. Particularly, the Tribunal noted the uncontested fact that despite the power being turned off to the shrink wrapping machine at the time his arm was entrapped between the sealing bar and the guide bar, the air-compression which drives the sealing bar remained pressurised and did not operate as it normally would if the valve was part open.
Section 7(1) of the SRC Act provides that in the case of certain diseases and in accordance with diseases specified by the Minister, such are to be taken for the purpose of the SRC Act to have contributed to a significant degree to the contraction of the disease. Appendix 6 of the SRC Act lists the declarations under s 7(1) currently in effect as including, at number 23, diseases caused by work in compressed air and the employment involving exposure to risk as described as employment involving exposure to compressed air.
As Vision Zero had provided a report regarding Safe Work Procedure to Linfox in which they identified Heat Tunnel Operations risks to include exposure to compressed air (report 17 May 2014), the Tribunal sought further submissions from both parties as to whether they considered this section of the SRC Act to apply to Mr Ricaud’s case, despite the reference in s 7(1) to a disease and following the Tribunal Member’s search for any medically determined disease as opposed to injury, relating to exposure to compressed air. Both parties via their counsel provided further submissions and agreed that these provisions relating to s 7(1) applied only to a disease and not to an injury.
THE ISSUE BEFORE THE TRIBUNAL
The issue to be determined is whether s 6 of the Act and in particular the exclusion provided by s 6(3) applies in the circumstances of Mr Ricaud’s injuries and if so, having accepted there was an abnormal risk, was this acceptance voluntary and unreasonable and the injury therefore not compensable.
It is not disputed that Mr Ricaud’s injuries arose out of his employment or that he satisfies s 5A(1)(b) of the Act attracting s 14 liability or that ss 14(2) and (3) apply, there being no suggestion that the injuries were self-inflicted or caused by serious and wilful misconduct.
Ms Bradey submitted that s 6 is a deeming provision having the effect of extending the meaning of the phrase arisen out of or in the course of his or her employment as stated by Handley JA in Mendez v Telstra Corporation and similarly by Northrop J in Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318 but without imposing any limiting of the circumstances in which an injury arises out of or in the course of employment as defined in s 5A. She contended that the introductory lines of s 6 made this clear.
Mr Hanks submitted that the language of s 6 is mandatory, and as a result s 6(1)(b) was attracted by Mr Ricaud’s injury as it had arisen at his place of work for the purposes of his employment. Kemp and K & S Freighters was cited in support of this contention.
Both counsel addressed the decisions in Grime, Bilton and Ralser wherein the Tribunal accepted that ss 6, 6(1)(b) and therefore s 6(3) were attracted. In Grime and Kemp liability was displaced on the grounds that the injury had resulted from the applicant’s serious and wilful misconduct (s 14(3)), although in Kemp s 6(3) also negated liability). In Ralser the injury arose from a violent confrontation (s 6(1)(a)) and outside the workplace during a temporary absence (s 6(1)(c)), but Mr Ralser was found to have voluntarily and unreasonably submitted to an abnormal risk of injury (s 6(3)). The Tribunal in Ralser decided that the physical injury did not arise out of or in the course of employment, but Mr Ralser’s psychological symptoms were an unrelated ailment satisfying s 5B of the Act.
In Bilton the Tribunal determined that s 6 and s 6(3) applied, but found that the risk to which Mr Bilton was exposed in the workplace was not unusual in the circumstances, being aircraft engine noise. Mr Bilton had worked at Melbourne Airport as a baggage handler for over 33 years and as a result developed a hearing defect in 1998. Ear muffs had not been provided until 1980 and as their use was not enforced. On this basis the Tribunal held that Mr Bilton’s failure to wear ear-muffs was not unreasonable, even though it was voluntary. There are some similarities between the facts in Mr Ricaud’s matter and that of Mr Bilton.
The Tribunal decides s 6 of the Act is attracted in Mr Ricaud’s case, and as such the Tribunal must make its decision in accordance with s 6(3).
EVIDENCE BEFORE THE TRIBUNAL
The oral evidence before the Tribunal was confined to two sources. The first was that of the applicant, supported by that of Mr Bruce Utting who has worked in all aspects of the processes at the warehouse for 12 years, Ms Kerrie Dunstan who had filled similar roles for a period of 17 years until she retired in 2012 and Mr Trevor Nicholl who has been employed for 3 to 4 years. The second source of evidence was that provided by three Linfox employees in managerial roles.
Mr Ricaud and his three co-workers all undertook duties as shrink wrap operators. Mr Ricaud, Mr Utting and Ms Dunstan have given evidence that they received no formal training and learnt their work tasks on the job. Their knowledge of the operation of the shrink wrap machine varied. They confirmed that it was common, although not approved practice, for the shrink wrap machine operator to place their hands within this machine in order to realign cigarettes and tobacco products before the wrapping occurred, to replace the order sheet on top of the articles or with smaller items to assist their carriage from the table across the static conveyor belt.
Mr Nicholl’s stated his training was limited to instruction about the two green buttons that activate the ram and shrink wrapper. All four had attended tool-box meetings conducted by Mr Felix, but none recalled being advised about the risks relating to the heat tunnel complex or the related safety procedures. Mr Nicholls and Mr Utting recalled such instruction after Mr Ricaud’s injury. Attendance at these meetings is recorded and is usually excellent, but has varied from 4 of 29 employees at lowest, to 27 in 29 employees at highest. Mr Ricaud and Mr Utting signed the attendance slip for the five meetings tendered by the respondent.
The Respondent’s witnesses, Mr Vernal, Mr Felix and Ms Nambiar, are more recently hired workers. Mr Felix has the longest period of employment having been appointed warehouse supervisor in May 2009. Mr Vernal and Mr Felix’s evidence implied that given Mr Ricaud’s lengthy service from 2001, it was assumed he was trained in the shrink wrapping machine and heat tunnel operation and was familiar with the risks, instructions, methods of stopping the machine, the presence of a sensor, and other relevant procedures. Clearly, on the evidence, their assumptions were ill-founded.
Mr Felix and Ms Nambiar’s roles are primarily administrative and their warehouse on- floor time is limited to 2 to 3 hours per day between 3 warehouses. Neither had roles operating machinery, although they said they received such instruction on joining the Notting Hill complex in 2009 and 2010 respectively.
Mr Vernal works as a picker on the floor, but has rarely operated the shrink wrapping machine. He has described the extensive modification of this machine undertaken after Mr Ricaud’s injury as being too technical for him. He was aware of the practice of operators inserting their hands into the working machine and had cautioned them against doing so. Mr Vernal has never been rostered to perform shrink wrapper machine duties.
It is clear from the evidence that operators put their hands in the shrink wrap machine, although it was not an approved practice, and they have done so for many years without adverse effects. In all Mr Ricaud, Mr Utting, Ms Dunstan and Mr Nicholl have approximately 43 years of performing their daily tasks in this manner. Until Mr Ricaud’s injury, they did so without injury. Even when Mr Utting reportedly had his arm trapped in the same manner as Mr Ricaud he suffered no injury. Why he did not suffer an injury is unclear.
While clearly the practice, in existence since the mid-1990’s, was not accepted by Linfox and was contrary to current signage and said to be the subject of tool-box meeting instructions, a habit or routine practice was in place and shrink wrap machine operators put their hands into machine to adjust or re-align stacked ordered items before wrapping occurred. The policing or supervision of this unapproved practice appears minimal at best.
The on-floor store-persons have given evidence that they perceived themselves to be under pressure to keep the product packaging through-put uninterrupted. Ms Nambiar and Mr Felix have said there was no pressure and no management avoidance of over-time employment. The team leader Mr Vernal’s evidence was that the staggered starting times of permanent and casual workers was at least in part aimed at avoiding over-time payment. In his evidence to the Tribunal, Mr Vernal said that on 4 June 2014 between 10 and 11 a.m. there were 12 store-persons on the floor and these 12 had by 10.30 a.m. (two having started work at 8 a.m. and 11 being rostered to start at 10 a.m.) filled 15 or 20 trolleys with picks ready to be wrapped. The shrink wrapper was only turned on when 15, or preferably 20, trolleys were in a waiting queue.
If these numbers are correct the perceptions of Mr Utting, Mr Ricaud and Mr Nicholls that it was a busier than usual day may be well-founded despite the electronic records (e-records) of Linfox Tobacco showing throughput on the day as 1885 picks, which is considered to be average. The roster for the day show that 13 persons were rostered to work in that time frame, although some who started work at 8 a.m. may have been performing other duties such as forklift loading of deliveries picked the previous day (Exhibit R5).
Based on this evidence, the Tribunal adopts Mr Hank’s description as this being a practice evolving from habit. The Oxford Dictionary defines habit as settled or regular tendency or practice. The Macquarie Dictionary provides two relevant definitions:
1. A disposition or tendency, constantly shown, to act in a certain way,
2. Such a disposition acquired by frequent repetition of an act.
The combined 40 year practices of Mr Ricaud, Mr Utting and Ms Dunstan, devoid of injury indicative of unusual risk until 4 June 2014, fit well with all three definitions. The Tribunal notes that Ms Dunstan denied ever having placed her hand within the wrapping machine above the sealing bar.
Linfox Tobacco, through Vision Zero, had in 2013 identified the risk of injury associated with the heat bar that lowers when the green button is pushed and the compressor linked to the heat tunnel as medium with the consequence of such injury while being potentially significant was unlikely to occur or would rarely occur. The Likelihood Rating table rates unlikely events to occur once in 6 to 10 years and rare events to occur once in greater than 10 years.
While the applicant conceded following completion of the evidence that he had submitted himself to an abnormal risk, the Tribunal does not accept that prior to that time he had fully understood the level of risk given his personal experience as a shrink wrap machine operator and his knowledge of others’ practice of placing their hands in the machine without injury over a period of 19 years (1995 to 2014). In Courtis the Tribunal referred to the High Court of Australia decision in Taylor v Stapley, stating that the majority concluded that the question of whether a risk is abnormal is very much one of degree and questions of degree are usually to be decided as matters of fact.
Section 6(3) of the SRC Act requires that the employee’s submission to the abnormal risk be both voluntary and unreasonable. Mr Ricaud has described his action of reaching into the shrink wrap machine at 10.40 a.m. on 4 June 2014 as being a reflex response to what he perceived to be the imminent crushing of poorly aligned stack of cigarette and tobacco products. He was ignorant of the placement of a sensor in the under-surface of the sealing bar and once convinced of the existence of this sensor concluded it must have been faulty most of the time given his experience with the damaging of parcels.
The Tribunal interprets Mr Ricaud’s use of the term reflex as meaning he acted without thinking, as opposed to the physiological meaning of the word as an automatic involuntary neural arc mediated response to a sensory stimulus resulting in motor activity, such as a knee jerk when the patellar tendon is tapped with a plessor. The Tribunal does, however, note that with the passage of time learned or now called conditioned responses can result from repeated processes or practices initiated in response to a new but unconditioned stimulus verging on a physiological reflex (e.g. Pavlov’s dog experiments). In Grime the Tribunal held:
In the context of the SRC Act, the Tribunal considers that “voluntarily” for the purpose of subsection 6(3), requires something more than an act being done without compulsion, and that it does require the free consent of the injured employee, this necessarily encompassing that the employee fully appreciate the risk which is being undertaken.
There is no evidence to indicate that Mr Ricaud fully appreciated the risk of his actions on 4 June 2014, as to his knowledge no-one had sustained an injury doing what to him was usual practice. He was aware that Mr Utting’s arm had been caught between the sealing bar and the shrink wrap guiding bar in approximately 2009 and no injury had been sustained.
The reasonableness of an action has not been addressed at length in the cited cases. The Tribunal consideration of this question in Kemp was determined on the facts alone and this I accept as the appropriate measure of reasonability. In Kemp, Mr Kemp was driving a truck towing a trailer loaded with 30 tonnes of magnesite between a mine site and the magnesite processing plant along a 12 km stretch of unmade road. The approach to the processing plant involved a sharp right hand turn followed shortly thereafter by a sharp left hand turn. While negotiating the latter turn the truck tipped onto its right side causing injuries for which Mr Kemp was seeking compensation under the SRC Act. Mr Kemp was found to have driven without wearing a seat belt and at a speed 40 km/hour above that considered safe to negotiate the turn. Under the circumstances the Tribunal found his actions not only unreasonable but amounting to serious and wilful misconduct.
The circumstances in Kemp are in marked contrast to the circumstances in Mr Ricaud’s case, as his usual practice in operating the shrink wrap machine had been undertaken without injury for more than a decade. It was logical for him to conclude, in the event it crossed his mind, that his actions were not unreasonable.
TRIBUNAL’S DETERMINATION
The Tribunal decides that s 6(3) of the SRC Act is not satisfied, in that Mr Ricaud’s actions were neither voluntary nor unreasonable in the circumstances despite his concession that he, in undertaking these actions, submitted himself to an abnormal risk of injury.
As such, the respondent is liable to pay Mr Ricaud compensation in accordance with s 14 of the SRC Act for the primary physical injury of right ulnar nerve neuropraxia and the consequential secondary injury of PTSD, both of which have resulted in incapacity for work and impairment as these injuries arose out of his employment with Linfox Australia Pty Ltd.
The Tribunal remits the matter to the respondent to calculate payments for these injuries in accordance with the SRC Act and Safety, Rehabilitation and Compensation Regulations 2002. The Tribunal also awards costs against the respondent in accordance with s 67 of the SRC Act.
I certify that the preceding 133 (one hundred and thirty three) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member ..................................[sgd].....................................
Associate
Dated 1 April 2016
Date of hearing 7 December 2015 to 9 December 2015 Counsel for the Applicant Ms Kim Bradey Solicitors for the Applicant Hounslow Lawyers Pty Ltd Counsel for the Respondent Mr Peter Hanks QC Solicitors for the Respondent Moray & Agnew Lawyers APPENDIX
APPLICANT
A01Photograph taken by Applicant 3 weeks after accident of the shrink wrap machine at Linfox Warehouse
A02Letter to Mr Ricaud dated 11 December 2014 signed by Preeta Nambiar
A03Statement of Mr Bruce Utting dated 6 February 2015
A04Statement of Kerrie Dunstan dated 10 March 2015
A05Statement of Trevor Nicoll dated 27 February 2015
A06Hand Therapist Report of Amelia Clarke dated 25 July 2014
A07Hand Therapist Report of Amelia Clarke dated 4 September 2014
A08Medical Report of Professor Marshall dated 30 July 2015
A09Medical Report of Associate Professor Paoletti dated 20 July 2015
A10Statement of Mr Jean-Michel Ricaud dated 12 December 2014
RESPONDENT
R01Claim for Physical Injuries
R02Claim for Psychological Injuries
R03Photos of Heat Wrap Machine (1-8) at Linfox Warehouse, Notting Hill
R04First Statement of Josian Felix dated 1 April 2015
R05Second Statement of Josian Felix dated 4 December 2015 with attachments JF1-6
R06Statement of Steve Vernal dated 1 April 2015
R07Statement of Preeta Nambiar dated 2 April 2015
R08Electronic Pick Slip Reports dated 2, 3, & 4 June 2014
R09Report of Associate Professor Chambers dated 20 October 2015
R10DVD of Shrink wrap machine at Linfox Australia Pty Ltd
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