Carrier Airconditioning Pty Ltd v Duzevich [2001] WASCA 243

Carrier Airconditioning Pty Ltd v Duzevich [2001] WASCA 243 - WASCA 2001 case summary — Zoe

[60]

"The evidence we've heard is that he was down on one knee in front of a cabinet and he swivelled to his left to perform a welding operation on a pipe around the corner of the cabinet, I understand, either so that his body was twisted with his neck flexed to approximately 90 degrees from the forward position, or alternatively slightly further looking over his shoulder. It depends on what his Honour eventually finds as to those two things. But we have heard other evidence that that is an ordinary movement of the human body. Would you agree with that?---In normal circumstances, yes. And when you say it's a normal movement it's what the body is capable of doing, yes.

Everyday movement was another expression that has been used?---Yes.

The other evidence we have heard in relation to that is that medical practitioners know that that causes injury but it might not be commonly known. Would you agree with that?---Would you just repeat that last for me?

The evidence runs this way - I think it was Mr Watson who said it - 'It's not of any particular significance to me that he injured himself doing that because I'm a medical practitioner and I know these things happen. You can slip a disc tying your shoelace'?---Well, that's correct, yes.

But it's not one that might commonly be known?---When you say, 'commonly known', known - - -

Outside the medical profession?---I think people know that if they move into certain positions they can aggravate or produce pain in the back. I'm not quite sure what you're asking me.

What I'm asking is, would this position be one likely to cause pain [in] the back?---Twisting? Certainly, yes, especially in a confined space and particularly if he'd been working in that confined space for a period of time. By that I mean it's possible, I'm not saying it's probable. If somebody gave me that history, I'd say, 'That's reasonable. I accept that.'

What if there hadn't been continual working in the confined space?---Again if you perform a movement, whether it's sudden, quick or in certain positions or certain times when the body is perhaps fatigued, or not fatigued, why can you suddenly get a disc prolapse by simply bending and doing up your shoelaces? I can't answer that question except I do know from experience that people can experience pain with simple everyday movements."

[62]

"The report details a story he told you about what happened to him in the third paragraph, a couple of sentences in. He said that he had to lean in, kneeling down, bending forward and twisting to his left, in order to weld a pipe?---Yes.

What we have heard in evidence is that he was kneeling on the ground and I think this morning he said twisted to about 45 degrees, looking back at his shoulder or in the direction of his shoulder, welding a pipe well to his left. That movement of the body, can you say anything about what I have said? Can you tell me how you would regard such a movement of the body?---Well, it's well within normal sort of expected capacity of a young man, I would have thought.

He said that after he had done this, he felt pain and he told you that it felt like a pulled muscle. He kept working, but the pain was still there the next day?---Yes.

A bit further down, he had no referred leg pain or buttock pain initially?---Yes.

What is the significance of the absence of leg pain and buttock pain initially?---It would be - if he'd had a very significant disc protrusion that was really interfering with one of the nerve roots arising out of that accident, he may not have felt even leg pain or buttock pain that day, but by the next morning, that's when it would have developed. If you've got a significant disc protrusion lesion, it's my experience that it comes on, usually, by the next day. One night in bed and when they get up in the morning, they realise they've got leg pain. Sometimes they have leg pain straightaway. Some people say they bent over, and whatever they did, and they felt the pain in their leg straightaway. That's usually a very big disc protrusion and sometimes it's not accompanied by any back pain.

So the evidence that he gave you that he had no referred pain is evidence of the extent to which he caused himself an injury, is it?---To me it would be evidence of - there wasn't a significantly large disc protrusion affecting a nerve root at that time."

[69]

"You see, the evidence that the [respondent] has given on several occasions is that he was down on one knee and was twisted to his left and was doing this job twisted to his left, and he said on some occasions - although he didn't say it in court - that he was looking over his left shoulder. We have heard evidence from several medical practitioners, Mr Watson for example, that that is just an ordinary everyday movement?---Yes.

Would you agree that it's just an ordinary everyday movement?---Yes - just looking over your left shoulder.

Yes. And there wouldn't be the leverage in those circumstances of which you have spoken by reason that his arms are outstretched because there wouldn't be the need to outstretch the arms in front of him. Is that proposition correct?---He would still have to outstretch them to a certain extent because he is still having to reach in to get this pipe but he is certainly not having to reach in and then turn as much to his left as he had explained to me.

There would be a limit, would there not, on the distance which he could forward flex into that opening because of the existence of the horizontal pipe 150 to 200 millimetres within the unit?---You would have to get your arms over that in order to - - -

Why would you have to get your arms over it?---If you were doing a weld on the back of that vertical pipe, you would have to get your arms in over the horizontal pipe in order to get around behind it.

But you wouldn't have to flex forward very far because you would be prevented by the pipe?---Yes, but because of the aperture of the opening you can't just lean forward like this.

No, but wouldn't you be prevented by the pipe from leaning very far forward? Would you or wouldn't you?---Yes, you would but you've still got to - - -

No. Okay, I understand that. What you then say is, 'Yes, but he's still got to get his arms over there'?---That's right.

But if it is about chest height, that's not a problem, is it?---No, but you have just got to reach forward over the pipe.

Yes, but it is not a problem, is it?---It's certainly less awkward than I had originally been told but it's probably not particularly comfortable.

All together it comprises an ordinary everyday movement and it is not one that carries any danger of injury, is it?---With this set-up here, it certainly has a lot less risk of injury from what he led me to believe was the case."

[71]

"Assuming the description of the work he was doing was as you have got in your report and taking it that the work was on an S18 in accordance with the questions I have asked you, on the evidence, can you express an opinion on whether what the [respondent] was doing was likely to lead to injury?---From the photographs I see now and my report and my understanding of the, you know, procedures in the factory, then I certainly wouldn't expect it to cause any problems that one could identify as causing a risk of injury.

If you were retained by the factory to make a report on its procedures and you were in the factory and you saw this happening, what would be your reaction to it? That is, you saw somebody kneeling, as the [respondent] has described, to weld a pipe in this way; if you saw that?---I would obviously want to spend some time seeing how - I mean the time that he spends - actually the task duration.

The evidence is two to three minutes?---Yes, but if I was just in the factory and saw him doing it, I would say, 'Well, what's he doing? How often does he do it? How long does he spend doing it?' you see, and if they said, 'Only now and again to fix a leak and it's two or three minutes,' then I would say, 'Okay, let's go and look for other problem areas that are perhaps more obvious.' I don't think I would have identified that as a risk, as a hazard presenting a risk of injury that we needed to take action about.

You're qualified, I think, in terms of the studies you have done and the experience you have had to comment on what is an everyday movement and what is an unusual movement. Is that correct?---Yes, I think that's right.

This movement described by the [respondent] in his affidavit, what words would you use to describe it in terms of the parameters I have mentioned to you?---I think that's the sort of least - I mean, I don't know how often people kneel down but as far as his upper body was concerned and moving around people - you use a lot of movements going around their - quite apart from work - normal daily life.

Is this movement - how would you classify it in terms of the comments you have made?---How do you mean? In terms of severity or frequency?

No. You're qualified to say whether a movement is an unusual movement or an everyday movement?---Yes.

So how in terms of whether it is an everyday movement or an unusual movement would you classify it?---I would think it would fall in the category of the sorts of movements that we come across in everyday life.

Ms Miller gave evidence yesterday that the position he adopted to do this welding would put a strain on the structures of the spine and I think the muscles associated with the spine, was her evidence. What's your view on that evidence?---Taking the word 'strain' of course quite technically - that is, the response of the structures to any stress, any load that is applied to them - so they're under a degree of strain as a result of the weight of your body anyway. If you just put your hands out in front of you - just like this - without any weights you have to increase the muscular activity of the - in the lower back to stop yourself tipping forward, so there is even with just simple movements very small changes in the stresses experienced by structures and therefore they result in strain, but that's - it can be incredibly small. You still talk about 'strain' as a technical term as opposed to meaning something that is going to cause injury.

Do you have an opinion then on what Ms Miller yesterday opined herself? What would you say to her opinion?---I would think she was taking it purely as a technical word in saying, 'Yes, there is some increased strain if you just move your body slightly forward, put your hands out, hold a small weight.' I don't know whether she was expressing opinion - that a layperson might use the word 'strain' meaning this is something that's going to cause a problem."

[76]

"Now, when you gave your evidence-in-chief, I understood that your first understanding was that he wasn't kneeling, that in fact he was bending over from his waist?---That was my understanding of what he actually said to me, yes.

And so if he was bending over from his waist and was bending into - and again I'm referring to the first sheet of photographs of the one on the left-hand side. If he was bending down into there he would have a very great deal of forward flexion, wouldn't he?---He would, but don't forget that that is not actually representative of the situation because that unit would have been on top of the rollers which are 400 - - -

Another 480 mm. Look, I understand that, yes?---So if he was standing over, he would actually have to be bending over to chest height. If he's kneeling then that means he is not obviously having to bend so far - - -

That's right?---But he's still having to lean in and twist to see the pipe.

We will come to that, but if he's kneeling he certainly doesn't have to bend so far, does he?---No, he doesn't, no.

He said he was 1.85 m tall. In fact he has answered an interrogatory that he's 1.75 m tall. Would that make any difference to what you have to say, first of all, if he was standing before the cabinet, bending over, leaning into it?---If he was 1.75 - and having seen him I don't actually think he is, but if he is 1.75 and he's bending he certainly has less trunk flexion, yes.

And similarly there would be a similar amount less function or trunk flexion if he was kneeling?---If he's kneeling he doesn't have the same degree of trunk flexion anyway. Height is not particularly relevant if he's kneeling.

So all of your report was prepared on the premise that he was standing up, leaning over into it. I understand referring to the photograph at the top right-hand corner on the first page of the photographs, the unit, on your understanding, up on - - -?---That's right.

- - - relative to the production line you can see there but he would still have to, if he was standing, bend over to a large degree?---Yes, he would.

And the whole report is premised on that, isn't it? What you have put in writing here is premised on that?---It's premised - if you're actually saying he's standing, yes, he has the trunk flexion, if he's kneeling he still has ... the rotation ... he doesn't have the same degree of trunk flexion but he will still have the twisting and some degree of trunk flexion because he's obviously having to lean into the unit.

WALTON, MR: Yes, but the report is premised on two things. The first thing is he is flexed forward from the waist bending down into the unit, and the second premise is that the pipe was behind the corner?---That's correct, yes."

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Judgment (100 paragraphs)

Carrier Airconditioning Pty Ltd v Duzevich [2001] WASCA 243 (23 July 2001)

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Legislation Cited (2)

Cases Cited (8)