Victorian WorkCover Authority v Direxa Engineering Australia Pty Ltd (No 2)
[2013] VCC 1245
•23 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02895
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| DIREXA ENGINEERING AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 16,17 September 2013 | |
DATE OF JUDGMENT: | 23 September 2013 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Direxa Engineering Australia Pty Ltd (No 2) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1245 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Recovery proceedings pursuant to s138 of Accident Compensation Act 1985 relating to injury suffered by worker, David Wrout – employment by labour-hire company – ‘host’ employer – nature and extent of health and safety steps taken and protocols in place – premises owned by third party – host employer an ‘occupier’ of premises and responsible for construction works – worker suffered injury to spine when lifting a significant number of bags of cement from one pallet to another at direction of employee of defendant – whether system of work adequate – whether breach of duty to provide a safe workplace by the various parties involved at the workplace – apportionment of liability – consideration of pain and suffering and economic loss damages, medical and like expenses.
Legislation Cited: Accident Compensation Act 1985, s138; Wrongs Act 1958; Occupational Health and Safety Act 2004; Occupational Health and Safety Regulations 2007; Manual Handling Code of Practice
Cases Cited:Victorian WorkCover Authority v Direxa Engineering Australia Pty Ltd (No.1) [2013] VCC 1039; Liftronic Pty Ltd v Unver [2001] HCA 24; Griffiths v Kerkemeyer (1977) 139 CLR 161; Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Judgment: Negligence and breach of statutory on the part of the defendant – Assessment of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley QC with Ms L Glass | Wisewould Mahony |
| For the Defendant | Mr M Titshall QC with Ms G Cooper | Lander & Rogers |
HIS HONOUR:
Preliminary
1 The plaintiff (“VWA”) brings this proceeding seeking an indemnity in respect of compensation paid; alternatively, damages calculated in accordance with s138(3)(b) of the Accident Compensation Act 1985 (“the Act”), from the defendant (“Direxa”).
2 This judgment should be read in conjunction with the judgment in a related recovery proceeding concerning a worker, Matthew Davey, who was injured on the same site as the worker in this proceeding, David Wrout (“Mr Wrout”).[1] That judgment sets out the background to and history of the workplace, the various parties involved, their relationship to one another, and the nature of the construction works carried out.
[1]Victorian WorkCover Authority v Direxa Engineering Australia Pty Ltd (No.1) [2013] VCC 1039 (“the Davey matter”)
3 On 18 April 2011, Mr Wrout suffered a significant injury to his lumbar spine when, in the course of his work duties at the Austral Bricks site at Wollert, he lifted a number of bags of cement from one pallet to another at the direction of an employee of Direxa. He has not returned to work since suffering the injury, and has undergone two back operations which have reduced, although not eliminated, the pain and restriction he has suffered, in particular through his buttocks and into his legs.
4 According to its Statement of Claim, the VWA alleged against Direxa, that the injury to Mr Wrout was caused by its negligence; alternatively, breach of occupier’s duty pursuant to the Wrongs Act 1958; alternatively, breach of statutory duty pursuant to the Occupational Health and Safety Act 2004, the Occupational Health and Safety Regulations 2007 (“the Regulations”) [2] and the Manual Handling Code of Practice (“the Code”), by, in particular:
[2]The plaintiff’s Statement of Claim pleads the 1999 Regulations, although the 2007 Regulations were tendered in evidence
· Failing to provide and maintain a safe system of work
· Instructing Mr Wrout to manually arrange and transfer bags of cement which:
§ weighed 25 kilograms
§ were large and awkward
§ were not packed tightly and the contents of which could shift
§ required him to work repetitively, with bending and twisting
§ required him to work without rotation and rest breaks.
· Failing to carry out any proper risk assessment or hazard identification
· Failing to have proper lift devices
· Failing to provide mechanical assistance
· Failing to provide variable height or weight sensitive pallets
· Failing to provide any appropriate warning of the hazard
· Failing to provide proper instructions to Mr Wrout
· Failing to comply with the provisions of the Occupational Health & Safety Act 2004, the Regulations, and the Code.
5 By its Defence, Direxa denied it was negligent or in breach of duty. It admitted:
· it was an engineering company specialising in the construction material industry;
· it was engaged to construct a brick kiln (“the kiln”);
· it was responsible for things done or omitted to be done in relation to the engineering, construction and/or building activities carried out at the kiln;
· it was an occupier of the premises where the kiln was being constructed, and
· Mr Wrout was working under its supervision, direction, care and control.
6 It says that Mr Wrout’s injury was attributable to his own negligence in failing to take proper care for his own safety and failing to seek assistance.
7 It alleged against IRP, negligence or breach of duty in:
· failing to maintain a safe place of work
· failing to inspect the premises
· requiring Mr Wrout to manually handle the bags
· failing to ensure he was capable of carrying the bags
· failing to provide proper instruction, training or supervision.
8 It alleged against Austral:
· failing to provide a safe system of work
· requiring Mr Wrout to manually handle the bags
· failing to provide adequate training, induction and supervision.
9 VWA’s Statement of Claim made further allegations against two other companies, SRC Engineering Pty Ltd and DSR Engineering, which were not pursued.
Evidence as to liability
Mr Darren Hare
10 Evidence was given by Mr Darren Hare, the construction site supervisor for Direxa at Wollert.
11 He heard that Mr Wrout hurt his back while lifting bags of cement. There were bags of cement placed on pallets and kept on the construction site. There were 200 pallets containing these bags which were covered by shrinkwrap. They had to be placed under cover and, in the course of the job, had to be moved about four times at the behest of Harold Crampton of Austral. They were moved by forklift. Mr Wrout and another worker were responsible for moving the pallets by forklift.
12 There were bundles of about 50 bags of cement on each pallet. Sometimes the shrinkwrap broke and the bags fell out. Mr Hare did not have particular knowledge of how Mr Wrout hurt his back. He saw Mr Wrout move bags of cement manually if some had fallen off the pallet. The bags weighed 25 kilograms, and under the appropriate manual handling SWMS, that constituted a two-person lift.
13 Mr Wrout was the elected occupational health and safety person for IPR. He was keen on safety matters, and was strict on ensuring the workplace was safe.
14 In cross-examination, Mr Hare agreed that there were over 200 pallets of cement bags and 50 bags to the pallet, in shrinkwrap. In Australia, the maximum weight of cement bags was 20 kilograms, but these were from China and were bigger – 25 kilograms. He did not agree that the cement was loose within the bag. Some bags became broken, or on occasions, part of the contents was used and the rest remained in an open bag. On occasions, the shrinkwrap was broken. Sometimes he saw employees manually lifting the bags, but had not seen Mr Wrout do it. He saw some bags fall off when the shrinkwrap was broken.
Mr David Wrout
15 Evidence was given by the injured worker, Mr David Wrout.
16 In January 2011, he applied for the job with IRP and provided a résumé and job application.[3] According to that résumé, he had training in occupational health and safety and certificates in first aid. Prior to that employment, his employment history included working on construction sites as a crane dogman, forklift driver and trades assistant. He had also been involved in the horse industry and worked as a trainer and stable manager.
[3]exhibit C
17 He commenced work for IRP as a trades assistant and was elected the occupational health and safety representative.
18 On about 18 April 2011 at a daily start up meeting, he was given a direction by Darren Hare of Direxa to move pallets containing bags of cement from one area of the site to another. The instruction was given to him and another employee “Veef”, who was a forklift driver. The direction related to pallets which contained bags of cement, some of which had become damaged, some had part of their contents removed by workmen or the bags were not sitting in alignment on the pallet and needed to be straightened. The total number of pallets to be moved was two to three hundred. He was shown three photographs which depicted the pallets with the cement bags.[4]
[4]exhibit A
19 When full, the bags of cement, which were made in China, weighed 25 kilograms. They were different from a similar product made in Australia which weighed 20 kilograms. The cement was loosely packed, which made lifting the bags difficult. Some of the pallets were shrinkwrapped. The bags of cement were stacked on pallets to a different height. Some were to shoulder height and some lower to the ground.
20 These pallets were delivered to the one area of the site and had to be unloaded onto two new empty pallets. Onto one was placed those bags which were damaged, or from which some cement had been taken, and onto the other was placed cement bags that were intact and which had to be removed from the source pallet to gain access to damaged bags on lower layers. About one pallet in three or four needed some cement bags to be removed in order to gain access to damaged ones, or which required the bags on the pallet to be straightened back into position.
21 Veef drove the forklift, and Mr Wrout manually handled the bags. If full bags had to be lifted, Mr Wrout and Veef did the lifting. However, if Veef was driving the forklift, Mr Wrout moved the broken bags by himself. The number of bags per pallet varied according to the height. Some pallets contained 50 bags, some less.
22 The injury to Mr Wrout’s spine occurred when he was lifting a bag of cement from which part of the contents had been removed. It happened in the morning after a couple of hours’ work. By then, he had removed bags of cement from 20 to 30 pallets. He and Veef were the only ones doing the work. He picked up a damaged bag. It weighed less than 25 kilograms, but he could not say how much. The bag had to be lifted from the pallet, which was at a little below shoulder height, and then placed onto the pallet for damaged bags. That pallet was eventually picked up by a forklift and the damaged bags placed into a dumpster. On placing the bag onto the pallet, he felt pain into his buttocks and his legs.
23 As the occupational health and safety representative, he was aware that Safe Work Method Statements (“SWMS”) were required for the various tasks to be performed around the site. So far as he was aware, there was no SWMS for this task.
24 Mr Wrout was cross-examined. He thought the job to which he was assigned would take about two days. On previous occasions, he had moved pallets of cement, but this was different, as they had to re-stack the bags.
25 He was aware that the standard was that the maximum one person could lift was 20 kilograms. Anything above that was a two-man lift. He was the occupational health and safety representative for the site from the time he started, was very keen about safety and applied himself to the task. He undertook safety walks with Harold Crampton each morning. He made notes of safety issues and raised them at the morning meetings. There was a lot of disagreement between Direxa and IRP about safety.
26 Overall, the percentage of bags that were broken was very small. Not a lot of dust was created by removing the broken bags to another pallet. He was unable to identify the weight of the bag he lifted. If the bags were full, he always waited for Veef to assist in the lifting and sometimes with broken bags, but when Veef was on the forklift working to bring another pallet, he wanted to keep busy and did not want to stand around and do nothing. There was no direction to not lift these broken bags by himself. He had done the Austral and IRP induction courses. He completed the IRP safety questionnaire.[5]
[5]exhibit C
27 He was taken to the “Event and Hazard Report”.[6] The handwriting on the first and third pages was not his. The handwriting on the second page was his and he signed the document. He acknowledged he did not describe the cement bag he lifted was half filled. According to that document:
“I was doing what I was doing as it was a part of my daily duties and I was also believe that I was lifting properly.”
(sic)
[6]exhibit 1
28 The document did not say there was anything wrong with the system of work. He completed a WorkCover Claim Form.[7] He did not type in the entries. The Claim Form said:
“Felt sharp pain whilst lifting bag of cement. I was lifting a 25 kilogram bag of cement onto a pallet.”
[7]exhibit 2
29 This information did not come from him.
30 He completed the Austral Induction Package.[8] This made reference to manual handling techniques. He signed off on the Direxa Manual Handling Notes.[9] He knew about manual handling lifting techniques from his previous experience. He received the Direxa SWMS which related to manual handling.[10] That document said that two or more persons were required for a lift of more than 20 kilograms.
[8]exhibit 3
[9]exhibit 4
[10]exhibit 5
31 He was taken to various safety meeting minutes of March 2011.[11] These minutes showed Mr Wrout raised various matters of safety at these meetings. So far as he knew, there was no risk assessment undertaken for this task.
[11]exhibit L in the Davey matter
Mr Christopher Fitzgerald
32 Evidence was given by Mr Christopher Fitzgerald, an ergonomist. He has a Diploma of Applied Science (Orthotics and Prosthetics) and a Graduate Diploma in Ergonomics. He has experience as a consultant ergonomist, in particular in the area of injury prevention. He is associated with a number of ergonomic institutions and bodies.
33 He received a number of documents relating to the case, and interviewed Mr Wrout. He received a history that Mr Wrout was requested to unload the 25-kilogram bags of cement onto two pallets. Mr Wrout said that because the bags were relatively large, it was not possible to determine how heavy or full they were until they were grasped and handled. The bags which were full and intact were lifted onto one pallet and bags that were damaged or partially full onto the other. The pallet containing the damaged bags was then taken in a bin to be dumped. In relation to the undamaged bags, 25 to 30 per cent of the bag length was usually flat and without cement contents. In relation to the damaged bags, their condition, shape, weight and structural integrity varied. It was necessary for Mr Wrout and his co-worker to evaluate each bag to know how to handle it.
34 On some occasions, Mr Wrout was required to lift the bag up and hold it to his chest and place it down carefully to ensure there was modest emission of cement dust. The pallet onto which the bags were loaded was lower and it would be reasonable that the workers would carefully place the bags onto this pallet. According to the history provided, Mr Wrout was very specific that his injury was caused when he was reaching over the pallet to deliver a damaged bag onto the stack.
35 Mr Fitzgerald said that the physical demands associated with this type of manual handling would be greater for the handling of used bags than full bags because of the awkward manner in which the bags were lifted and the unpredictability of the weight. Mr Wrout was unable to identify the weight of the bag he was lifting when the pain came on. Mr Fitzgerald said that the absence of specific manual handling assessments to identify a possible hazard, together with the use of simple control strategies to raise the height of all pallets in the area, were significant contributors to the injury. He said it was necessary to lower the height of the pallets from which the bags were taken, and increase the height of those onto which the bags were to be placed. Further, forward reaching with a bag placed additional strain on the lumbar spine.
36 Mr Fitzgerald undertook a biomechanical compression assessment according to a program established by the University of Michigan, known as the “University of Michigan Three Dimensional Static Strength Prediction Program”. He made spinal compression assessments based upon computer models established to replicate the task being undertaken by Mr Wrout. These compression values comprised “back compression design limit (“BCDL”) and back compression upper limit (“BCUL”). This, said Mr Fitzgerald, provided an indication of the risk of the task and the extent of the spinal compression in the lower spine. He accepted that Direxa would not have had access to this material.
37 With the modelling he undertook, he presumed cement bag weights of 10, 15, 20 and 25-kilogram bags. Each of the lifting exercises showed that at the L5‑S1 disc, the BCDL was exceeded. Although not a definitive means of risk assessment, he said that the results demonstrated that all the bags used produced relatively high levels of compression at the L5-S1 disc and were therefore probably hazardous. He said raising the heights of the pallets would have improved the posture.
38 In cross-examination, he admitted that the figures he used for the compression assessment showed a person bent over with his back at almost 90 degrees to his legs, and not lifting with a straight back according to acknowledged safe lifting techniques. He said that lifting bags from the ground placed greater stress upon the spine than lifting from an increased height.
39 He said the task undertaken by Mr Wrout at the time was unsafe and hazardous because of the awkward posture and high force involved. He said that two persons handling full bags would only slightly reduce the risk. In essence, he said the system of work was not sufficiently safe to prevent injury. There were alternatives available, including raising the height of the source pallet and of the receiving pallet. In addition, he said that the dump bin could be brought into the area and then the source pallet could be elevated, and the damaged bags could be pushed off; however, he conceded this would be difficult if the damaged bags were several layers down. He provided diagrams of both spring loaded and powered pallet lifting equipment which he said were readily available at a modest cost.[12]
[12]exhibit Q
40 He said he received instructions that the system was that the two workers would judge the load and if the bags were sufficiently full, determine that it was a two-person lift. If the damaged bag was sufficiently empty, Mr Wrout would handle them.
Evidence as to damages
41 Mr Wrout gave evidence in relation to the injury sustained. When the incident occurred, he felt pain in his buttocks and down his legs. He had no prior back problem. He was active and able to ride horses. He went to the first aid office after the incident and went to a local doctor, Dr Dayasagar. He was advised to have physiotherapy and was provided with pain medication. An MRI scan was conducted on 19 May 2011.
42 He was referred to Dr Nicholas Maartens, neurosurgeon. On 7 September 2011, there had been no improvement in his buttock and leg pain, and Dr Maartens operated. Before the operation, the pain was intense and went down the back of his legs into the foot. After the operation, the constant pain was almost gone. There was only a little pain left. To this point, he had not returned to work. After this operation, he did a computer course and thought he might re-train into that area.
43 In about November 2011 while on the toilet, his back “went” again. The pain in his buttocks and down his legs was back to what it was before the first operation. He was referred back to Dr Maartens, and on 6 December 2012, further surgery was undertaken. There was some improvement after the second operation, but the pain down his legs remained.
44 He is unable to be as active as before. He cannot split firewood on his property at Macedon. He said the injury had “slowed me down”. He has pain all the time and sometimes it gets worse if he has been gardening for more than an hour. He presently takes Panadeine Forte on an “as needed” basis and occasionally Lyrica. He tries to avoid taking medication. He has an appointment to see a rehabilitation specialist in Footscray later this year.
45 He has not returned to any work. He has received assistance from a rehabilitation provider, Ayres Management. They assisted him prepare a CV, and he has made a formal application for a job, which was not successful. He would love to get back to work. He spends his days pottering around outside. Mentally, he has not coped well with the injury, becomes angry and loses his temper. His relationship with his partner is “pretty rocky”.
46 After each operation, he received assistance from his partner, helping him to dress, and driving him to medical appointments. In the first few weeks after each operation, she assisted for a few hours each day. As he got better, he took on some of the chores.
47 His wages at the time of the incident are set forth in the IRP pay summary report.[13] He was averaging $1,243 net after tax. He also received a bonus of $7,273, which was like a redundancy payment because the employment was for a short fixed term.
[13]exhibit B
48 Mr Wrout was cross-examined. He said he takes Panadeine Forte and Lyrica if he has a bad day. He stopped taking Lyrica before the last operation. He might take about one Panadeine Forte a week.
49 He discussed with the rehabilitation provider the work he might do, including sales and demonstration in the building industry. He thought he might be able to work as a salesman at Bunnings. He emailed Bunnings and another company but received no reply. Other jobs he thought he might be able to undertake would be ones in which he could combine his knowledge of construction and the building industry, or even the horse racing industry, providing the job did not have any heavy lifting. He said work as an occupational health and safety officer was not suitable. He had lost interest. It would not be beyond him physically, but rather, he would find it difficult mentally. He got some pre-course notes from an occupational health and safety course but he was intimidated and thought he could not handle the course. With time, he might be interested. He hopes to get some employment.
Medical evidence
50 A number of medical reports were tendered into evidence.
Dr Nicholas Maartens
51 Dr Nicholas Maartens was the neurosurgeon who treated Mr Wrout and performed surgery on two occasions.[14] The first procedure was a right L5-S1 microdiscectomy and neurolysis, performed on 7 September 2011. The surgery was designed to address what Dr Maartens referred to as a prolapsed intervertebral disc at L5-S1 with right S1 radiculopathy. A further similar procedure was carried out on 6 December 2012. Mr Wrout experienced a recurrence of pain after the first procedure. In a report to the general practitioner, Dr Dayasagar, of 18 January 2013, Dr Maartens said Mr Wrout had overall experienced an improvement of 75 per cent after the second procedure. He said Mr Wrout did not experience low-back pain but intermittent stiffness of the lower back and some tightening of the right calf. He said Mr Wrout should be able to return to work in a largely non-physical capacity where bending and lifting was avoided.
[14]exhibit D
Mr Thomas Kossmann
52 Mr Wrout was examined by Mr Thomas Kossmann, orthopaedic surgeon, in August 2011. The report[15] is of little assistance as it pre-dates the second episode of surgery. In the history provided to Mr Kossmann, Mr Wrout complained that on 18 April 2011, he was lifting bags of cement which weighed approximately 25 kilograms. As a result, he suddenly suffered a pain shooting into his feet.
[15]exhibit E
Dr Deviprasad Dayasagar
53 According to a report of the treating general practitioner, Dr Dayasagar, of 18 October 2012,[16] he had treated Mr Wrout with analgesia and antidepressants, the latter to treat symptoms of depression and anger. To Dr Dayasagar, Mr Wrout complained that he suffered back pain on 18 April 2011 while trying to carry bags of cement “weighing 20 kilograms” at work. He said Mr Wrout was capable of working providing he avoided lifting weights of 10 kilograms. He suggested Mr Wrout would benefit from a pain management assessment.
[16]exhibit F
Mr Laurie McCormack
54 Mr Laurie McCormack, physiotherapist, reported on 10 October 2012.[17] He noted the history of the onset of symptoms, and provided physiotherapy treatment for a period in 2011.
[17]exhibit G
Mr Michael Shannon
55 Mr Michael Shannon, orthopaedic surgeon, reported on 27 April 2012.[18] He said that as a result of the work incident, Mr Wrout sustained aggravation of pre-existing lumbar disc degeneration resulting in the development of a right-sided lumbosacral disc prolapse. He noted the operative procedures. At that stage, there was significant restriction of spinal movement and slight wasting of the right thigh. He said Mr Wrout was not fit to return to work in the construction industry. He said Mr Wrout had a very limited work capacity but may be capable of suitable employment, providing he could avoid prolonged or repetitive bending or heavy lifting. In the history provided to Mr Shannon, Mr Wrout complained of lifting bags of cement when he felt pain in his back.
[18]exhibit H
Mr Daryl Nye
56 Mr Daryl Nye, neurosurgeon, provided a report to the WorkCover insurer on 24 June 2013.[19] He received a history that Mr Wrout was lifting 25-kilogram bags of cement off a pallet when he suffered back pain and pain into his right leg. He complained to Mr Nye of continuing pain in the right buttock affecting the right calf below the knee. There was some paresthesia in the right foot. Mr Nye concluded the plaintiff had suffered an L5-S1 disc prolapse in the course of his employment duties which was complicated by a further recurrent disc prolapse and second bout of surgery. He said Mr Wrout could not resume his pre-injury duties in the construction industry. He did not consider Mr Wrout incapacitated for all employment and said he should have a further vocational assessment.
[19]exhibit J
Dr Richard Prytula
57 Dr Richard Prytula, psychiatrist, received a history that Mr Wrout was lifting a 25-kilogram bag of cement when he developed pain in his back and into both legs. He said Mr Wrout had become angry and frustrated but had not suffered a psychiatric illness as a result of the physical injury.
Conclusions from the evidence
58 I found Mr Wrout an impressive witness, giving a reasonable account, both of the circumstances of his injury, and the consequences as a result. He made the concessions in cross-examination I would expect of an honest witness. He was particularly frank about the improvement in his pain as a result of the first, and to a lesser extent, the second operation. He said that he felt there were real prospects of him being able to re-train into another area of employment and utilise his experience and skills to that end. These matters reflect well as to his honesty. There were no major credit issues put to him in the course of cross-examination. Thus, I accept generally the description given by Mr Wrout as to the manner and circumstances in which the injury occurred, and the activities that he was undertaking at the time.
59 It was emphasised by Mr Stanley for the plaintiff, that his worker’s injury was causatively related, not specifically to the lifting of the damaged bag at the time he felt pain, but rather to the lifting of a substantial number of cement bags over several hours in the course of the morning of 18 April 2011. There is support from various of the medical practitioners as to the causative relationship between the lifting of a number of bags of cement, and the occurrence of the injury, in particular:
·Mr Kossmann[20]
·the general practitioner, Dr Dayasagar[21]
·Mr Shannon[22]
·Mr Nye.[23]
[20]exhibit E at page 2
[21]exhibit F at page 1
[22]exhibit H at page 1
[23]exhibit J at page 2
60 From the evidence of Mr Wrout, and Mr Hare, I am satisfied that the sequence of events leading up to Mr Wrout’s injury was as follows:
·Darren Hare (of Direxa) had been directed by Harold Crampton (of Austral) to move the pallets containing the cement bags into the one area;[24]
[24]Transcript (“T”) 366 – Davey matter
·Darren Hare directed Mr Wrout and another employee, Veef, to move those pallets to that area, remove the damaged bags (including those which had part of the contents removed) and straighten up those which had become out of alignment;[25]
[25]T14
·All up, there were two to three hundred pallets to be moved, and it was expected the job would take several days;
·There were approximately 50 cement bags per pallet, although the number varied, and as is clear from the photographs,[26] some pallets had considerably fewer bags;
[26]exhibit A
·The work involved the manual handling of the bags of cement in the manner described by Mr Wrout in his evidence;
·Some bags of cement were removed from about waist height from the first pallet, decreasing as the layers were removed;
·The bags of cement were deposited onto one of the two other pallets, commencing at ground level and rising up;
·Full bags of cement weighed 25 kilograms and were somewhat awkward to handle as the contents did not fill the bags;
·The damaged bags, or bags from which part of the contents had been removed, weighed something less than 25 kilograms;
·Some of the damaged bags were several layers down from the top, and the full bags had to be removed and placed on one pallet in order to gain access to the damaged bags;
·Most, if not all, of the full bags were lifted by Mr Wrout and Veef;[27]
·Mr Wrout handled the damaged bags largely by himself, or occasionally with assistance from Veef. Mr Wrout had been working for several hours on 18 April 2011 and had unloaded 20 to 30 pallets;[28]
·Whether the bags were full or partly emptied, they were “placed” on the receiving pallet.[29] The percentage of bags that were broken was very small;[30]
·To some extent, there was discussion between Mr Wrout and Veef as to whether a particular lift would require two of them, or whether Mr Wrout could do it on his own, depending on the assessed weight of the bag;[31]
·Of the pallets that came to the area where Mr Wrout worked, one in three or four pallets needed to have some attention paid, either in terms of damaged bags, or realignment.
[27]T20
[28]T22
[29]T23
[30]T54
[31]T57
61 It is not possible from the evidence to conclude with any precision the number of bags of cement Mr Wrout lifted and moved on the morning he suffered injury. Accepting his evidence that he manually unloaded 20 to 30 pallets, it is reasonable to assume that there were at least several bags of cement moved from each pallet, either by him alone or in conjunction with Veef. The number of bags lifted therefore, each weighing up to 25 kilograms, was several hundred. On any view, this is a very substantial and arduous manual handling task.
62 It was not only the weight of the bags which made the task difficult, but also:
·Many of the lifts required a bag to be lifted from one height, and placed on another pallet at a lower height. This changed as the source pallet was reduced, and the receiver pallet increased;
·The bags were somewhat awkward to lift;
·Some of the lifts required the placement of the bags away from Mr Wrout’s body by extending his arms, in particular to place bags in the centre of a receiving pallet;
·There was some twisting involved with the transfer of the bags from one pallet to another.
63 All of these factors are known to place extra compressive forces upon a worker’s spine and increase the risk of spinal injury. These were, generally, the conclusions of the expert ergonomist, Mr Fitzgerald.
64 I am satisfied from the evidence of Mr Fitzgerald that there was equipment available which would have reduced the risk of injury in the circumstances. That equipment included pallet raising devices, either mechanical or spring loaded, readily available at a modest cost, which would have reduced the risk of injury by largely removing the requirement to lower the bags of cement up and down to and from different heights. That equipment would, to some extent, have reduced the requirement for the lift to be undertaken away from the body. Further, there were no assessed rest breaks nor rotation of the duties between a number of employees so as to reduce the repetitive nature of the manual handling duties.
The Occupational Health and Safety Regulations 2007 (“the Regulations”)
65 The VWA pleads the circumstances of the injury to Mr Wrout created a liability in Direxa by reason of its breach of the Regulations. There is no issue the activities carried out by Mr Wrout at the time of injury constituted “hazardous manual handling” within the meaning of Regulation 1.1.5. Further, Mr Titshall did not take issue that the Regulations had application to Direxa notwithstanding Direxa was not Mr Wrout’s immediate employer.
66 Regulation 3.1.1 provides:
“(1)An employer must, so far as is reasonably practicable, identify any task undertaken, or to be undertaken, by an employee involving hazardous manual handling.
…
(2)An employer may carry out a hazard identification under subregulation (1) for a class of tasks rather than for individual tasks if—
(a) all the tasks in the class are similar; and
(b) the identification carried out for the class of tasks does not result in any person being subject to any greater, additional or different risk to health and safety than if the identification were carried out for each individual task.”
67 Regulation 3.1.2 provides:
“(1)An employer must ensure that the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee is eliminated so far as is reasonably practicable.
…
(2)If it is not reasonably practicable to eliminate the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee, an employer must reduce that risk so far as is reasonably practicable by—
(a) altering—
(i)the workplace layout; or
(ii)…; or
(iii)the systems of work used to undertake the task; or
(b)changing the objects in the task involving manual handling; or
(c)using mechanical aids; or
(d)any combination of paragraphs (a) to (c).”
68 Regulation 3.1.3 requires an employer to ensure that measures implemented to control risks are reviewed and revised if necessary.
69 Further, Regulation 5.1.2 defines “construction work” to mean work performed in connection with the construction of any building or structure. I am satisfied the work being undertaken by Mr Wrout came within that definition.
70 Regulation 5.1.7 provides:
“(1)An employer must eliminate any risk to health or safety associated with construction work, so far as is reasonably practicable.”
71 Mr Titshall submitted Direxa complied with these Regulations. Regulation 3.1.1(2) provided that an employer complied with the obligation to carry out hazard identification providing the task was within a “class of tasks” in respect of which a hazard identification had been carried out. He submitted that the hazard identification was effectively undertaken by the comprehensive induction program at the hands of Austral, IRP and Direxa to which Mr Wrout was subjected and, also, the:
·Manual Handling Notes;[32]
·the SWMS in relation to unloading incoming goods;[33]
both of which Mr Wrout signed as having acknowledged he had received and understood.
[32]exhibit 4
[33]exhibit 5
72 The Manual Handling Notes provide instructions as to manual handling risks (paragraph 3) and manual handling techniques (paragraph 4). Those notes provide that consideration should be given to a formal risk assessment of a task and give advice, including to be aware of risk factors such as repetitive or fast movements, posture, unbalanced loads and repetitive activities, as to methods for manual handling including balance, changing position, lifting with a straight back and the like. Generally, the notes provide advice to workers as to safe manual handling methods and techniques.
73 The SWMS relates to the unloading of goods from a truck or shipping container. Under item 2.2, reference is made to unloading heavy or bulky goods. The possible safety hazard is said to be manual handling sprains or strains. The risk rating is 3. The “safety control” is:
“Use two people to lift an item of 20 kilograms or more. Discuss and apply correct lifting technique.”
74 Further, Mr Titshall submitted that Mr Wrout was an experienced occupational health and safety officer who well knew appropriate and safe lifting techniques. In fact, according to the hazard report,[34] and the WorkCover Claim Form,[35] he used appropriate lifting techniques in the course of lifting the cement bags. In those circumstances, said Mr Titshall, there was sufficient compliance with the requirement to identify a hazardous manual handling task and reduce or eliminate it as far as was reasonably practicable.
[34]exhibit 1
[35]exhibit 2
75 While the Manual Handling Notes and the SWMS provided information and advice as to safe manual handling techniques, neither specifically addressed the task Mr Wrout was undertaking on the day of injury. They were, as Mr Stanley submitted, no more than general advice with which Mr Wrout complied. Given the specific nature of the task and the very strenuous activity that was being performed, the general advice contained in these documents was not sufficient to properly identify the risk of musculoskeletal injury. It was not sufficient that general advice be given about lifting techniques. There ought to have been an assessment of the specific task, in particular that the task required awkward lifting from different heights and over a prolonged period without breaks.
76 In my view, neither Regulation 3.1.1, nor 3.1.2 was complied with. It was reasonably practicable to take steps to reduce the risk by various means, including:
·devices to alter the heights of the pallets;
·rotation of duties amongst employees;
·appropriate breaks.
77 The failure to abide these Regulations was causatively related to Mr Wrout’s injury.
Negligence as a cause of injury
78 Mr Stanley, in submissions, did not pursue breach of occupier’s duty. It is therefore not necessary to consider the provisions of PART IIA and PART X of the Wrongs Act 1958.
79 He accepted IRP had a non-delegable duty to Mr Wrout to take steps to ensure he was provided with a safe place and safe system of work. It is further clear both Direxa and Austral owed a general duty to take reasonable steps against the foreseeable risk of injury to workmen on site, including Mr Wrout.
80 Mr Titshall submitted there was no breach of the general duty for the following reasons:
·There was a comprehensive occupational health and safety system in place at the worksite, and occupational health and safety issues were treated seriously;
·Austral, IRP and Direxa had induction programs for all employees on site, including Mr Wrout;
·In particular, advice and instruction as to appropriate manual handling techniques were provided in the Manual Handling Notes[36] and the SWMS;[37]
[36]exhibit 4
[37]exhibit 5
·Mr Wrout was an occupational health and safety officer with considerable experience in the field. He was involved in a walk of the site with representatives of Austral and Direxa each morning. There were safety meetings with IRP employees each morning. There was a Tuesday meeting with Direxa and Austral to discuss safety matters. Mr Wrout himself was active in safety matters, as is evident from his contribution to the various meetings.[38] In cross-examination, he accepted that if he became aware of a safety issue, he would take active steps to report and rectify it;
[38]exhibit L in the Davey matter.
·The steps taken in relation to the particular task were adequate in the circumstances. In particular:
§there was extensive instruction given as to correct lifting techniques
§any lift over 20 kilograms required two men
§Mr Wrout was appropriately placed to assess any load and to determine whether it was a one or two-man lift;
·It was practicable in this workplace, given the experience both of Mr Wrout and Veef, for them to determine an appropriate method for the shifting of the bags.
81 All of the above, said Mr Titshall, indicated that the system of work and instructions provided were entirely appropriate and that that system of work was followed by Mr Wrout. His injury was not caused by any want of care in respect of the system of work. A counsel of perfection was not required.
82 However, as earlier stated, the lifting of the number of bags of cement involved, and the method of the transfer to the pallets was a particularly arduous task. On the evidence, it is probable Mr Wrout did comply with the advice and instruction as to correct lifting techniques contained in the various documents. However, to require an employee to carry out this task over such an extended period, with the weights involved and the various other hazardous factors to which I have referred, showed a clear breach on the part of those responsible for establishing the system of work, of the duty owed to Mr Wrout. As stated, there were reasonably practicable steps available to reduce the risk. In the modern workplace environment, there is an affirmative duty upon an employer, be it a principal, or host employer, to consider issues of accident prevention.[39] I am satisfied the allegations of breach of duty contained in the VWA’s Statement of Claim are made out, in particular:
[39]Liftronic Pty Ltd v Unver [2001] HCA 24 at paragraph [85]
· the failure to provide a safe system of work;
· the failure to provide appropriate equipment, in particular height adjustable pallet devices;
· the failure to provide appropriate rest breaks and rotation of duties;
· the failure to carry out an assessment of the tasks;
· requiring Mr Wrout to undertake the manual handling in the circumstances of the relatively obvious risk factors to which I have referred.
83 I am satisfied the breach of duty was causative of the plaintiff’s injury.
Contributory negligence of the worker, Mr Wrout
84 Mr Titshall submitted that in the circumstances, if negligence or breach of duty was to be found, Mr Wrout’s contributory negligence ought be substantial, at approximately 50 per cent. He said Mr Wrout was experienced in the construction industry generally and was an occupational health and safety representative who had been comprehensively inducted and instructed into the workplace. He was the person at the “coal-face” capable of making an assessment of the manual handling task he was performing. Mr Titshall said he had made a conscious decision as to whether to lift the bags in conjunction with another employee or by himself.
85 However, as earlier stated, it was not Mr Wrout’s failure to comply with his induction and training which was a cause of his injury, it was rather the requirement that he undertake this lifting task with all the various hazards involved.
86 The obligation was upon those managing the workplace to take active steps to ensure risks were identified and ameliorated as far as was practicable. He was merely complying with the system of work which he had been instructed by Mr Hare of Direxa to undertake. Even with his occupational health and safety training and experience, in my view, it was not appropriate for a worker in his position to undertake an assessment of the hazards involved. He was required to comply with the direction. The task of hazard assessment and elimination falls to those responsible for the workplace environment, not the workers who receive the instruction to undertake the task.
87 In my view, Mr Wrout should bear no liability.
Liability of Austral
88 The only involvement of Austral in the task which was undertaken by Mr Wrout was the direction by Mr Crampton that the pallets containing the cement bags should be moved. It played no role in establishing or directing how that task was to be undertaken. Given Direxa had control of the workplace, it appropriately left the method by which the task was to be undertaken to Direxa.
89 In the circumstances, Austral should bear no liability.
Liability of Direxa
90 I have concluded that liability for the injury suffered by Mr Wrout lies with Direxa.
91 In the Davey matter, I set forth details as to the extent to which Direxa was responsible for the establishment and implementation of a safe system of work at the worksite.[40] Those matters have application to this proceeding. In particular, by its Defence, Direxa admitted:
·It was responsible for things done or omitted to be done in relation to construction and building activities carried out;
·It had the management and control of the workplace;
·At all material times Mr Wrout was working under its supervision, direction, care and control.
[40]Davey matter at paragraph [133]
92 Direxa was responsible for the establishment and maintenance of the system of work at the site, in particular matters relating to occupational health and safety. It provided plant and equipment and supervised the activities on the site.
93 Of particular significance is that the direction to Mr Wrout to undertake the transfer of the bags of cement was given by Mr Hare of Direxa. Direxa had the control of the site. It gave the direction as to the task to be undertaken. It was responsible for ensuring the task was carried out in a safe manner.
Liability of IRP
94 IRP had a clear duty to its employee to ensure that the system in which he worked was safe and that he was provided with appropriate plant and equipment. IRP had an extensive presence on the worksite and an active involvement of matters relating to health and safety. Unlike the Davey matter, however, the task being undertaken by Mr Wrout was one in which there was little opportunity for anyone other than Direxa to become aware of the task, and to take steps to implement a safe manner in which the task was to be undertaken. There was no evidence that any of the IRP representatives had the opportunity to assess the task, or take any steps to reduce the hazards involved.
95 As Mr Stanley posed in submissions, what steps could IRP by its personnel have taken to assess and reduce the risk of injury? It would be impractical for IRP to have required Direxa to provide it with details of significant manual handling tasks to which its employees would be subjected. While it did have a presence on site, that presence did not extend to having the opportunity to oversee every task its employees were to undertake.
96 IRP should bear no liability for the injury suffered by Mr Wrout.
Damages
97 Section 138 of the Act entitles the VWA to be indemnified by third parties in accordance with s138(3). The indemnity is the lesser of the amount of compensation paid or payable under the Act, and the amount of damages calculated in accordance with the formula prescribed by s138(3)(b). It is common ground that Factor B is irrelevant, and Factor C is zero. Thus the relevant calculation is:
“… the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury … .”
98 It is thus necessary to assess the entitlement of Mr Wrout to damages at common law for both pecuniary and non-pecuniary losses.
Pain and suffering damages
99 Mr Titshall submitted it was appropriate to assess general damages in the sum of $150,000. Mr Stanley said it was appropriate to assess general damages in the sum of $200,000.
100 Mr Wrout is a relatively young man, now only forty-four years of age. He suffered a substantial injury to his lumbar spine, requiring two significant operative procedures. While the procedures have relieved the pain and restriction, in particular in his buttock and right leg, the pain is ongoing, and exacerbated by physical activities.
101 I accept Mr Wrout as a relatively stoic person, not prone to complaint nor exaggeration of his symptoms. I accept that his sleep has been affected as a result of his injury, and he has suffered a significant restriction in a range of domestic and recreational activities. He is no longer able to cut firewood or do the gardening as before. Heavier domestic activities are beyond him. While he only occasionally takes medication and has little current treatment, that does not mean he does not suffer restriction in his lower back and into his legs. I further note that he is scheduled to see a rehabilitation specialist later this year.
102 He has lost the capacity to work in the construction industry which he previously enjoyed. I accept that he has had a psychological reaction to injury and has become frustrated and angry, in particular with his partner.
103 In all the circumstances, I assess general damages in the sum of $185,000 (One-Hundred-and-Eighty-Five-Thousand-Dollars).
Past medical and like expenses
104 The parties have agreed that past medical and like expenses are $41,429.03 (Forty-One-Thousand-Four-Hundred-and-Twenty-Nine-Dollars-and-Three-Cents).
Future medical and like expenses
105 The parties have agreed future medical and like expenses are to be $2,000 (Two-Thousand-Dollars).
Provision of voluntary services
106 Since Griffiths v Kerkemeyer,[41] an injured person is entitled to recover the reasonable costs of meeting nursing, domestic, travel and like expenses provided by a friend or relative. It is not necessary to show actual financial cost. The cost of such services are assessed upon commercial rates.
[41](1977) 139 CLR 161
107 The evidence to support such a claim is modest. Mr Wrout gave evidence that after each of the two operations, he required assistance from his partner in lifting some things and picking up his clothes. His partner drove him to some medical appointments. He said in the first few weeks after the accident, his partner, for a few hours a day, assisted him in various domestic tasks. As his condition improved, he undertook the chores himself.[42]
[42]T30-31
108 I accept that for a period of a number of weeks after the original incident, and for a similar period after each operation, his partner provided assistance as stated. I am not satisfied domestic assistance was provided beyond that, nor am I satisfied that there is any basis for a claim into the future. The calculation is as follows:
2 hours per day for 9 weeks (3 weeks after the incident and each operation) by $41.97 per hour = $5,288.22 (Five-Thousand-Two-Hundred-and-Eighty-Eight-Dollars-and-Twenty-Two-Cents).
Past economic loss
109 Mr Stanley submitted the appropriate figure is $200,157.61. This sum is based upon the net weekly earnings of Mr Wrout at the time of the incident, $1,376.53, plus superannuation of $163.54 per week, increased by 3 per cent per year from the time of the incident to the present time.
110 Mr Titshall accepted that the plaintiff had no work capacity until March 2013 when he said Mr Wrout had recovered from the second bout of surgery sufficient to obtain employment. He said further, that Mr Wrout’s employment with IRP would conclude in August 2011. There was no evidence that he could expect the same type of employment, absent injury, after that time. Further, there was no guarantee that even if he was to obtain employment in the construction industry, he would be entitled to receive the same wage and bonuses which he received through IRP. He said Mr Wrout had a somewhat disjointed employment history with work in the construction area, but also work with horses and jobs overseas.
111 I accept the plaintiff has been unable to work to the present time by reasons of his injury. His attempts at rehabilitation and to obtain alternative employment have been impressive. I accept the figures submitted by the VWA in relation to past economic loss, save that the calculations ought be discounted for the following:
·The risk that Mr Wrout would have been able to obtain employment in the construction industry beyond August 2011 on an uninterrupted basis;
·Even if he were to obtain employment in that industry again, that he would earn the same wage;
·That he would have been able to obtain the same allowance which was provided as a “redundancy payment”.
112 In all the circumstances, the figure proffered by the VWA should be reduced by 40 per cent. This leaves a net past economic loss of $120,094.57 (One-Hundred-and-Twenty-Thousand-and-Ninety-Four-Dollars-and-Fifty-Seven-Cents).
Future economic loss
113 Mr Stanley submitted an appropriate figure for future economic loss is $680,397.70. This figure is calculated on the basis that at the present time, had Mr Wrout remained in the construction industry, he would have been able to earn a net weekly wage of $1,482.75 plus superannuation of $178.71. Mr Stanley accepted that from the present time, Mr Wrout had a work capacity to work in a sales position, the net weekly wage for which is $620.71 plus superannuation of $61.50 per week. The net difference between the two is calculated as the loss to age sixty-five.
114 Mr Titshall submitted an appropriate allowance of $63,000. This made no allowance for superannuation, as Mr Titshall submitted that Mr Wrout was not paid superannuation in his job with IRP. He said that there would only be a “Farlow”[43] type claim for future economic loss, given that with Mr Wrout’s background, it was not likely he would remain in the construction industry, nor receiving the same wage which he was paid by IRP.
[43]Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594. See further Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
115 I am satisfied that Mr Wrout was entitled to be paid superannuation in his employment at IRP.[44] It is further appropriate, in my view, to calculate his entitlement to future economic loss on the basis as submitted by the VWA. I accept that at the present time, Mr Wrout should be regarded as having a practical earning capacity as a salesman earning the figures submitted by the VWA.
[44]See exhibit C
116 However, this figure should be discounted for the same risks identified in respect of past economic loss, although on a lesser extent as to the future. In my view, it is appropriate to discount the future amount by 25 per cent to account for those risks. This leaves a figure in respect of future economic loss of $510,293.03 (Five-Hundred-and-Ten-Thousand-Two-Hundred-and-Ninety-Three-Dollars-and-Three-Cents).
117 I shall hear form the parties as to the appropriate orders.
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