Robert Darcy Coombs v Patrick Stevedores Holdings Pty Ltd

Robert Darcy Coombs v Patrick Stevedores Holdings Pty Ltd - [2004] NSWIRComm 77 - NSWIRComm 1999 case summary — Zoe

[3]

LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) s 49A Boral Gas (NSW) v Magill (1995) 58 IR 363 Coombs v Patrick Stevedores Holdings Pty Ltd (2001) 103 IR 417 Coombs v Patricks Stevedores Holdings Pty Ltd (2001) 104 IR 240 Coombs v Patricks Stevedores Holdings Pty Ltd (2002) 118 IR 401 Cullen v State Rail Authority (1989) 31 IR 207 at 219 Haynes v CI&D Manufacturing Pty Ltd and anor (1995) 60 IR 149 Inspector Paige v Growth Equities Services Pty Ltd [1994] NSWIRComm 95 O'Sullivan v The Crown in Right of the State of New Soth Wales (Department of Education and Training) [2003] NSWIRComm 74 CASES CITED : R v Moussad [1999] NSW CCA 337 (27 October 1999) TTS Pty Ltd v Griffiths (1991) 105 FLR 255 at 267 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 (WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59 WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd & Lindores Crane and Rigging (Aust) Pty Ltd [2004] NSWIRComm 31 WorkCover Authority (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 at [101] WorkCover Authority of NSW (Inspector Penfold) v Fernz Contruction Materials Ltd (1999) 91 IR 119 WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs & ors [2003] NSWIRComm 452 WorkCover Authority of New South Wales v Kevin Curran Pty Ltd [2000] NSWIRComm 55 WorkCover Authority v Rail Infrastructure Corporation (2001) 109 IR 209 HEARING DATES: 09/11/2001; 09/28/2001; 07/30/2001; 10/05/2001; 08/01/2001; 02/05/2002; 02/06/2002; 02/07/2002; 02/08/2002; 02/11/2002; 02/12/2002; 02/13/2002; 02/14/2002; 02/18/2002; 02/19/2002; 02/20/2002; 02/21/2002; 02/25/2002; 02/26/2002; 02/27/2002; 02/28/2002; 03/20/2002; 03/21/2002; 04/05/2002; 04/29/2002; 07/29/2002; 07/28/2003; 07/29/2003; 07/31/2003; 08/04/2003; 08/05/2003; 08/06/2003; 08/07/2003; 08/11/2003; 08/12/2003; 08/13/2003; 08/14/2003; 08/18/2003; 08/19/2003; 08/20/2003; 08/21/2003; 09/30/2003; 11/24/2003; 11/25/2003 DATE OF JUDGMENT: 04/02/2004

[12]

6 In making these comments, I acknowledge the often difficult task which faces a prosecutor, especially in circumstances where a workplace accident highlights a variety of risks to employees which are available to be pleaded under the provisions of the Act. Nevertheless, there is a public interest in the prosecutor focusing attention on the most serious aspects of those risks when commencing proceedings in the Commission in Court Session. It is not infrequent that the Court is involved, even where there is a plea of guilty to a limited number of particulars, in an extensive hearing and significant time taken in deliberation where the additional particulars or a number of them do not add materially to the substance and objective seriousness of the offence. When that occurs, justice is not served: the resources of the parties are increasingly devoted to minutiae and ultimately the Court is required to consider a case which may not have required such extensive attention. The problems posed for the Court by the form of the pleadings was recently touched upon by Peterson J in WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane and Rigging (Aust) Pty Ltd [2004] NSWIRComm 31. In relation that case his Honour said: 3. There are a multiplicity of charges against both Leightons and Lindores with both charges and particulars which overlap to a considerable extent. The charges are brought under the sections creating offences, namely ss 15 and 16, but each charge is brought relying upon the provisions of s 49A of the OHS Act. Rather than set them out in extenso, I will set out a tabulation of the charges against each defendant, and deal with the particulars in respect of each charge in the consideration of the matter. The table illustrates what, to my mind, is an incorrect approach to the formulation of charges in OHS prosecutions. Section 49A, as a I apprehend it, was designed to avoid the risk in litigation that a charge alleging more than one offence might be void for duplicity. The practical consequences seems to have been that prosecutors have determined not only to bring multiple charges in one matter, but multiple matters. … The approach which the prosecutor had adopted here requires one to consider whether each allegation of failure, separated from the particulars of charge, are to be considered as charges and not as particulars of charge. 4. This is exactly the problem which arose in the judgment of Kavanagh J in WorkCover Authority of NSW (Insp. Maltby) & Anor v Abigroup Contrctors Pty Limited & Luis Bustamante [2003] NSWIRComm 35. At par. 12 her Honour took the view the failures were technically particulars, although not so identified; they were considered to be confusing in form and repetitive in content. I would adopt those views in relation to the present matters. This style of summons can only make for near impossibility of understanding during the trial, very considerable difficulty for the parties in addressing the matters in the course of the trial, and an unnecessarily heavy burden in trying to deal with each element of charge in the course of judgment. In my view this approach, if it is continuing, ought to be reviewed.

[16]

10 The "system of work" charge appeared to have arisen under s 15(2)(a). The two "information, instruction and training" charges covering different periods was said to be brought under s 15(2)(c). The two "plant" charges was framed by reference to s 15(2)(b)(i). In more detail, the five charges alleged as follows: (a) Matter No IRC 5194 of 2000 was the one unsafe system of work charge, covering a period between about 26 October 1988 and about 26 October 2000 at the Pt Botany operation of the defendant. The charge referred to the failure to ensure the health, safety and welfare of all employees and in particular Messrs Crews, Euers, Hargraves, Howlett, Magnus and Watson. It was alleged that there was a risk to health, safety and welfare to any and all of the employees in that there was a risk of neck, shoulder, spine, upper limb and/or back injury. The particulars then specified how each employee named in the charge had suffered injuries while driving straddle cranes at Pt Botany. The defendant's failures and/or omissions were particularised as any or all of the following: requiring any or all of the employees to work for a full shift, apart from one break in the cabin of the straddle; rostering any or all of the employees to work for a full shift, apart from one break in the straddle; a failure to provide to any or all of the employees operating straddles more than one break per shift; a failure to provide three employees for every two straddles; a failure to rotate regularly, throughout the shifts, any or all of the employees when operating straddles; a failure to implement an exercise programme, prior to work commencing on shift, for any or all of the employees operating straddles; and, a failure to implement an exercise programme at appropriate intervals throughout shifts for or any or all of the employees operating straddles; (b) the first plant charge, alleging a failure to provide or maintain plant that was safe and without risk to health, covered the period from 16 December 1998 to 29 April 2000 (Matter No IRC 6105 of 2000). The particulars alleged a risk to the health, safety and welfare of any or all of the employees in that there was a risk of neck, shoulder, spine, upper limb and/or back injuries, and listed the injuries suffered by the individual drivers. The defendant's failure and omissions were then particularised as: a failure to provide seating in the cabin that ensured health and safety; a failure to provide access to the radio in the cabin that ensured health and safety; a failure to provide access to the computer terminal in the cabin that ensured health and safety; a failure to provide mirrors to reduce the degree of frequency of neck rotation and flexion requirements; and, providing straddles with a fixed cabin; (c) the second plant charge, alleging a failure to provide or maintain plant that was safe without risk to health of the straddle drivers including the nominated drivers (Matter No IRC 6104 of 2000) covered the period between about 1 May 2000 and about 13 September 2000 at Pt Botany. The particulars again alleged that there was a risk to the health, safety and welfare of any or all of the employees and that there was a risk of neck, shoulder, spine, upper limb and/or back injuries. The injuries suffered by the individually named employees was again set out and the defendant's failures and/or omissions were particularised as being: a failure to provide seating in the cabin that ensured health and safety; a failure to provide access to the radio in the cabin that ensured health and safety; a failure to provide access to the radio in the cabin that ensured health and safety; a failure to provide access to the computer terminal in the cabin that ensured health and safety; a failure to provide mirrors to reduce the degree and frequency of neck rotation and flexion requirements; and, providing straddles with a fixed cabin; (d) the first charge alleging a failure to provide information, instruction and training necessary to ensure the health and safety at work of the defendant's employees (the first information instruction and training charge) covered the period between about 16 December 1998 and about 31 May 1999 at Pt Botany (Matter No IRC 6103 of 2000). The charge alleged that there was a risk to the health, safety and welfare of any or all of the employees and that there was a risk of neck, shoulder, spine, upper limb and/or back injuries, and particularised the injuries to each individual driver. The defendant's failures and/or omissions were particularised as: a failure adequately or at all to provide to operators of straddles information, instruction and/or training in operating posture; a failure adequately or at all to provide to operators of straddles information, instruction and/or training in seat adjustments; a failure adequately or at all provide to operators of straddles information, instruction and/or training in steering wheel adjustments and a failure adequately or at all provide to operators of straddles information, instruction and/or training in stretch exercises; (e) the second information, instruction and training charge covered the period between about 1 June 1999 and about 13 September 2000 at Pt Botany. It alleged that there was a risk to the health, safety and welfare of any or all of the employees and that there was a risk of neck, shoulder, spine, upper limb and/or back injuries and specified injuries suffered by particular drivers. The defendant's failures and/or omissions were particularised as being any or all of the following: a failure adequately or at all provide to operators of straddles information, instruction and/or training in operating posture; a failure adequately or at all provide to operators of straddles information, instruction and/or training in seat adjustment; a failure adequately or at all provide to operators of straddles information, instruction and/or training in steering wheel adjustments, and a failure adequately or at all provide to operators of straddles information, instruction and/or training in stretch exercises.

[26]

20 The Evidence Act does not detract from the common law position which would allow the draft report to be introduced into evidence if it is not adduced to prove the truth of any fact asserted in the representation but is adduced for some other purpose. Here, that other purpose is certainly the issue of foreseeability should the evidence demonstrate that during the period covered by the charges, the operation of straddles by the drivers exposed them to any of the risks alleged by the prosecutor. On this basis alone Exhibit E would be admissible: I would also regard it as admissible as a business record under the exceptions to the hearsay rule having been adopted in numerous parts by the experts Mr Donohue and Mr Caple (an expert called by the defendant). Having regard to the way in which the case developed, the taking of this objection is somewhat curious. Ultimately, the position of the defendant was not that the operation of straddle carriers could not expose the drivers to soft tissue injury of the nature particularised by the prosecutor, but rather that the breaks in operation which naturally occurred in the system of work were such as to give sufficient relief to the drivers from the strain of repetitive neck and arm movements and the constancy of being seated in the cabin during a shift. There were numerous reports from experts in the hands of the defendant and expert medical opinion called during the hearing, all of which accepted that being seated for continuous periods while driving the type of straddle crane operated by the defendant at Pt Botany could lead to soft tissue injury unless some steps were taken to avoid that result. At the end of the case, this appeared to be common ground and the nature of the objection taken by the defendant appears to have been directed more to the fact that the prosecutor declined to call the author of the document. There is no doubt that in relation to Exhibit E the most simple and straightforward course was to call the author of the document. The prosecutor should not be swayed by issues of simple forensic advantage that attends litigation inter partes: the duty of a prosecutor requires that it put all the evidence fairly and appropriately and in this instance there was no explanation as to why there was a legitimate difficulty in calling the author of the document. In the final resolution of this issue, nothing turns on these matters but it is indicative of an approach that is capable of arousing suspicion of the prosecutorial process in the mind of the defendant, leading to a less than co-operative approach being taken by the parties, which in turn affects the capacity of the Court to quickly and appropriately deal with the issues arising in a prosecution.

[40]

34 In relation to the operation of the straddle crane by the driver, Mr Caple said: A range of dynamic postures were identified when the driver was performing this sub-task (lift/lower container) with the cabin located approximately 30 feet above ground level, the driver predominantly looks through the floor windows of the cabin to the roadway and containers below. The fixed driving position within the cabin of the straddle truck is facing 90 degrees to either direction of travel. Consequently, the driver will look to his left and to his right, depending on the movement of the straddle car over the container. When the spreader bar is being manoeuvred into position onto the corner locking lugs of the container, the driver will look over the left or right arm rest of his chair respectively to ensure the accurate location of the container. A selection of control levers are located on both the left and right arm rests of the driver's chair to activate the spreader bars accurately onto the containers. The degree of twisting and bending of his back to view over the arm rest of the chair down on to the container does vary depending on the length of the container. (a) 40 foot containers. With these containers, the driver will look over the left arm rest of his chair to view the front of the container and have a more distant view out his right cabin window to the opposite end of the container. (b) 20 foot containers. Both ends of the container are out the right window of his cabin and therefore he will tend to look directly down over the right arm rest of his chair when attaching the closest end of the spreader bar on to this container. When slowly manoeuvring the straddle truck over the container and, when also leaving the container intact underneath, the driver will also look through the floor windows of his straddle truck to ensure that the container, and the wheels of the straddle truck clear any obstructions which may happen to be nearby. For example, if he turns the steering wheel too quickly, he may hit the adjacent containers with the straddle truck, or the 40 foot container. Hence, in the tasks involved in attaching and lifting the shipping containers, there is a requirement for the drivers to repetitively look between the left and right side of their container cabin, and, in particular through the floor windows to accurately see the spreader bar and container activity.

[44]

38 The prosecution's outline summarised the evidence which would be brought from employees of the defendant: (a) Simon Euers - in early 1999, very shortly after he first started operating straddles, noticed symptoms in his neck and shoulders and thereafter, over time, developed pain in his lower back. Workers compensation liability was accepted for these injuries. Mr Euers had been a member of the Occupational Health and Safety committee at the Pt Botany terminal; (b) Christopher Watson - around the end of 1999 and the beginning of 2000 developed symptoms of neck and back pain after driving straddles for long periods. Workers compensation liability had been accepted for these injuries and he had been treated with continuous physiotherapy since March 2000; (c) Jason Crews - around the end of 1999 and the beginning of 2000 started to have symptoms of neck pain after driving the straddles for long periods. These symptoms increased in severity and consistency over time. The symptoms included tightness and spasm of the neck muscles. Mr Crews was advised by the defendant's labour manager that if he could not drive the straddle crane then his only alternative was to go back on workers compensation. Mr Crews also had a further period of time off work on compensation resulting from an exacerbation of a whiplash injury (a separate work accident) through driving straddle cranes; (d) David Hargraves - in around late 1998 began experiencing neck pains after driving the straddles for long periods. The symptoms increased in severity and consistency over time until they became severe around March 1999. At this time, the pain also extended down into his right arm, the arm he used to drive the straddle crane. He consulted his general practitioner and, acting on his advice, asked the defendant for alternative rotational duties. Mr Hargraves was advised that there were no alternative duties available and he was forced off work for two weeks on workers compensation. He understood that his doctor had contacted the defendant and requested Mr Hargraves be given a 15 minute break every two hours while driving the straddle crane. However, the defendant refused to provide this break and Mr Hargraves was forced to take a further two weeks off work on workers compensation. He was continuing to have physiotherapy consultations each week paid for by the defendant's compensation insurers; (e) Peter Howlett - since 13 September 1998 had experienced a significant increase in severity and consistency of neck and back pain. The entirety of his employment involved the driving of straddle cranes. The defendant had refused his request for alternative duties, a request made on the advice of his general practitioner. As a result of the neck and back pain symptoms said to be caused by driving straddle cranes, Mr Howlett was certified as being fit for light or alternative duties for three months. His request for light or alternative duties was met by advice from the defendant that such duties were not available and that he would have to "go off" on workers compensation. Workers compensation lability had been accepted for the injuries; (f) Stephen Magnus only drove straddles from time to time as the vast majority of his time (90 per cent of his employment duties) were spent as a senior clerk.

[61]

55 Mr Watson was a member of the Occupational Health and Safety Committee at Pt Botany dealing with non-maintenance areas of the operation. He referred to numerous minutes of that committee from January 1999 to July 2000 raising issues concerned with the difficulty of adjusting the seat in the straddle, concerns raised as to the necessity of having to drive the whole shift and the possible need for exercise and other measures to assist the drivers to care for their backs. Concerns were also raised over fatigue arising during the shift and suggestions that there should be two breaks during the roster. In July 1999, the committee was informed that the defendant had appointed a consultant to investigate exercises and other initiatives addressing back care for drivers. The committee received reports on a trial straddle seat used in Brisbane. A trial of a new seat was recorded in July 2000 as not being a success and had not alleviated problems that had been raised. 56 In early 2000, Mr Watson became aware that Re-Start Consulting had prepared an ergonomic report for the defendant in early 1998. He had ultimately been given a copy of the report. Mr Watson noted that the risks assessed in this report identified the following: · sustained neck rotation when driving and operating the straddle; · awkward mechanical seat adjustment of cabin seat; · prolonged shoulder elevation when driving straddle if steering wheel was not adjusted; · awkward reach postures to access radio and computer terminals. Mr Watson expressed the view, as Chair of the Occupational Health and Safety Committee and on the basis of his own experience in operating straddles, that these risks were in existence since September 1998. Mr Watson pointed out that he thought the report did not accurately record the degree of neck rotation when driving, which he thought was in excess of 90 degrees. He also thought that there was a higher percentage of time spent driving the machine than the report had operated upon. He stated that, when sitting driving the straddle, the operator was required to turn both his neck and spine while driving and he disagreed that there was no force or twisting movement of the spine during this part of the operation. In addition, Mr Watson proceeded through points made in the report and photographs, and identified where he agreed with the descriptions and risks identified.

[96]

93 In cross examination, Mr Howlett agreed that he was part of a "gun" team and he had continued to work overtime and weekend work after he returned to work in May 2000. He agreed that once in the straddle he was able to leave the straddle for use of the toilet, with notice, or for an important reason although he usually worked three and three-quarter hours straight. He said it was the company's approach to keep the numbers up to get the bonus. He regularly got the bonus. Mr Howlett was shown the video and while the work was different (involving yard work whereas he worked on the ship), he said the posture while driving was similar and the manner of driving was similar to his own. In the shipping operation the straddle could stop and wait for another straddle to pass but it was unusual for his gang to stop: they worked to the best of their ability but not flat out and his gang was more efficient than others, which allowed them to earn bonuses that others did not earn. He agreed that while waiting a driver could read a paper and he had done so on occasions. It was also possible to adjust the driver's posture and relax a bit. Mr Howlett said that the 20 foot boxes required further bending to see them and there were more 20 foot boxes moved than 40 foot boxes. Mr Howlett accepted that during 1998 he was driving trailers (which had now been phased out) and he had driven transtainers as well. Mainly his task was to drive a straddle. On some occasions he could start working on a transtainer and then commence work on a straddle. Mr Howlett said that he worked overtime and volunteered for it whenever it was available but it had not been available since October 2001. When asked how he was able to work during 1998 and 1999 for long hours and on overtime, Mr Howlett said that sometimes he was able to do a number of boxes without suffering but he presumed he suffered for it later. He was now working with a "gun team" which he was not working with before and this had occurred over the last 12 months. After the accident he thought he was working better, not harder and the team was working more efficiently. At present he was still driving in the same way with the same body movements and vibrations but he was now in the machine for a lot less time. Since October 2001, the work had slowed down and there was a new break in the work. He exercised and stopped work and did not get the same injuries. Mr Howlett said that, despite what was in the First Aid Book, he had experienced pain before September 1999. He had gone to first aid and received an ice pack or a pill for relief. Sometimes he took the pills at the end of a shift. It was possible that he did not report the pain on all occasions and on some occasions it may not have been recorded in the First Aid Book. Mr Howlett had told management of his pain and that he was taking a break: he could have told a Mr John Gallagher in circumstances where he had been asked why he was not working in the straddle. He rejected the suggestion that if there was no report in the First Aid Book there was no injury. He confirmed that he was feeling pain before September 1999 because of the awkward and unnatural position required in the straddle. He noticed the pain after driving for long periods of time looking to the left - he felt it in the muscles straightaway. In 2001 there was a different team and he was not driving as hard and he was also working out of the straddle. Mr Howlett said that in September 1998, the terminal manager, Mr Don Hughes, had told him that rather than leaving the straddle to go to the toilet he should wait.

[101]

99 When asked in cross-examination if the doctor's opinion was based on the drivers working a full shift of three and three-quarter hours and another shift of three and a quarter hours, he said his opinion was based on the clinical findings of the employees he saw and was an opinion in regard to each of the individuals. Seeing the video of the work and discussing with the people what they actually did gave him an understanding of their work and he also understood that they were allowed to take breaks and from time to time go to the toilet. He was told that normally they would work for three and three-quarter hours, have a break, work for another period in the straddle and that was the normal way the job was performed, and that formed part of Dr Bodel's overall assessment of the people he saw. It might be beneficial to have short breaks, such as when the driver was queuing to deliver a container or reading a newspaper, but far more beneficial would be for the driver to get out of the seat, open the cabin door, walk out on to the platform and do stretching exercises to change that fixed posture of sitting down. He agreed that reading a newspaper, even for a short time, may be of some help. Dr Bodel said that people in an activity where there is a fixed posture should have regular breaks and are frequently advised that they should be for five minutes every hour - that may be considered to be a micro-rest. Five periods of one minute may also be of some benefit and the older the person the more micro-rests they would require. In the present shift system with one 45 minute break, Dr Bodel accepted that it would be better if there were two breaks - a 20 minute break in the first shift as well as the 45 minute lunch break: that would be helpful as well as the micro-rests. 100 In relation to Mr Howlett, Dr Bodel said that when he saw him he could be described as a physically fit person who was involved in swimming and sport, although he was probably at a lesser level by the time he was seen based on his clinical presentation at that time. Dr Bodel agreed that a man such as Mr Howlett who worked as long as 10 hours on the straddle took voluntary overtime whenever it was available and moved as many boxes as he could was not a man who was suffering much on the job and that was clearly so while he continued to work in that manner. Mr Howlett impressed him as a man who was keen to work. Dr Bodel stated in re-examination that he had no idea about the term "micro rest" but assumed they were short rests.

[155]

154 On 15 August 2001, Dr Bodel provided Mr Bilston with a medical report regarding Mr Hargraves. Mr Hargraves had told him that he had begun to develop a gradual onset of neck and right arm pain in May or June 1999 and sought treatment from his local doctor. He had some time off work and physiotherapy and the arm pain settled but the neck pain did not alter. Mr Hargraves had been a member of the Police Service for seven years prior to joining the waterfront and had no previous problem in the neck or right arm. He had enjoyed a number of sporting activities, including playing golf and tennis and he had continued with these but at a reduced rate. Dr Bodel had been provided with a video of the nature of the work and noted that the driver of a straddle had to frequently turn his neck and upper body to the right hand side to observe the operation of the spreader bar and when driving machine with the cabin leading, there was an equal full rotation to the left hand side and at times if turning to the left with the cabin leading, the driver had to look well behind his left shoulder to check where he was going. He observed that very little of the work was done with the head and neck in the forward position. Clinically there appeared to be an excessive amount of rotational movement in this type of activity and in a person with disc pathology in the cervical spine it was inevitable that pain would develop. Mr Hargraves apparently did have definite cervical disc pathology and the nature of the work itself might have induced this but it was difficult to be absolutely certain. It was probable however in a person who was now 35 years of age that there was some minor pre-existing pathology but in Dr Bodel's view, the nature of his work as a straddle driver was a substantial contributing factor to his current disability. There was no objective sign of nerve root involvement and therefore surgery was not required. While Mr Hargraves was able to continue to drive the straddle he really needed to be able to change his posture more frequently. Dr Bodel understood that portainer drivers rotated every two hours and this would be more appropriate for straddle drivers in general if no other modification could be made to the machine so that they did not have to turn so vigorously to the right and to the left in order to drive them. In the long term, Mr Hargraves had a reasonable prognosis and Dr Bodel encouraged exercise to strengthen the neck and shoulder girdle area in order to optimise function so that he could return and continue in work. He observed that the complaints were quite genuine and the ongoing pathology was predominantly work related. In cross-examination, Dr Bodel agreed that a possible explanation for Mr Hargraves' complaints was that there was an aggravation of the prolapsed cervical disc: a person could get pain from the congenital fusion but it was not common although it could happen.

[211]

211 There were a number of common factors identified that highlighted the risk. Mr Donohue dealt with a number of those common factors arising in the performance of driving the straddles. Repetitive movements and unsuitable production rates involving the same muscle groups was a common factor identified in the Australian Standard. By reference to the Re-Start report, Mr Donohue stated that there was a large percentage of time driving the vehicle and that driving must incur a high usage of improper postures on the part of the drivers. Mr Donohue could not agree with the idle time identified in that report and said that computer readouts of when the containers were connected or not were not a proper basis to make such a calculation. Even when stopped, a driver would still exhibit unsafe postures. He thought it highly unlikely that 40 per cent of straddle crane time would be idle time. There were flaws in the Re-Start report in relation to this particular statistical aspect and Mr Donohue concluded that the level of repetition was high, some 80 per cent of driving time being forward based and 20 per cent rearward faced. It followed that biomechanic postures would be frequently exhibited and that the movements were repetitive. Production rates were unsuitable since the driver had little opportunity to rest and thereby break up the continuous time span of the difficult postures enforced upon him. A mere lunch break was inadequate. There were movements requiring a force which called upon a large proportion of the capacity of the muscles involved. Here, a forward bent spine with a posture leaning forward and forming a convex curve in the spinal column required the back muscle groups to keep a fixed tension while the posture itself was kept. The muscles must produce a large force of tension to prevent the collapse of the torso forwards and downwards. The individual employee's own muscle group alone provided the support to counteract his forward leaning torso and his twisted neck rotation required to safely drive the vehicle. Mr Donohue suggested an alternative cabin design allowing an erect upright standing posture when operating the equipment. 212 Jerky movement was another factor which was linked to the state of the roads. Vibrations would incur jerky motions being imported into the upper torso of the employee. Again, an upright driving position would greatly reduce this risk.

[212]

213 The design of the vehicle required the driver to move his torso and upper limbs to accommodate multiple views. This part of the work brought into consideration the common factor of activities including prolonged static or isometric muscle effort without adequate rest breaks leading to local fatigue of a muscle or group of muscles. It was explained that static effort occurs when the muscles are tense and there is little or no movement produced. Mr Donohue said that the driver was expected to adapt his posture to conform with the inbuilt design constraints of the vehicle for all the views: this was fitting the man to the task rather than fitting the task to the man. Body motions of twisted and fixed spine, neck flexion and rotation to forward and rearward motion of the straddle cranes implied continuously held or static postures. These postures were held for the duration of time that the person was operating the vehicle regardless of whether it was driven forward or backwards, loading or unloading. This was prolonged static effort. A prolonged time period of such duration for three hours or more twice per shift in static loading of the driver's torso support muscles was ergonomically unsafe. The opportunity to rest for one period, for lunch, was inadequate. Another common factor was static, inappropriate or awkward postures of the body or a particular joint. In travelling forward or reversing or transferring a container, the operator was always facing in a way that necessarily required a forward and downward bending orientation of the spine. This bending would create the form of a curve of the back and was a risk likely to lead to AMT. That was in addition to any twisting of any part of the spinal column to achieve the task required of the driver. There was also likely to be a lateral bending of the spine. These activities would have the effect of requiring the muscle groups to be in contraction mode or, in the alternative, depending in the posture, in stretch or tension. As these tasks were commonplace in the operator's duties it followed that the tension or contraction was a frequent occurrence for so long as the driver was required to be in the cabin operating its controls.

[262]

264 This report concentrated upon the conclusions that Mr Caple could draw from a document prepared by the defendant referred to as the L62. The "L62" was derived from the computer programme by which containers were allocated to straddle drivers and which, amongst other things, recorded the time from when a container was picked up until it was placed at the designated spot and also recorded when the subsequent containers were picked up and delivered. Mr Caple made a number of assumptions in relation to this data, and also operated on the basis that on average a container movement occupied three minutes. Some of these adjustments arose when there were unexplained periods or where it could be safely presumed that there was a formal break such as the lunch break. The extended breaks appearing in the data appeared to break down into time at the start of the shift before the first container movement, time at the end of the shift after the last container movement and actual time taken by the driver for a meal break. The return time to pick up the next container was factored in as driving rather than down time, with an allowance of three minutes for this driving task. But also what were described as "micro breaks" which included the times remaining in the down time, after adjustments were made for vessel to yard and rail to yard work and times greater than one minute for other straddle movements. Thus, micro breaks were the unaccounted down time longer than these limits. To perform this analysis, 30 shifts were randomly selected by Mr Caple using the driver data analysis and the relevant L62 data. From a review of the L62 reports and his personal inspection of the work at the terminal, Mr Caple concluded that the straddle drivers undertook repetitive activities during their shift in transferring containers between locations at the terminals. He dealt with the various aspects of the work, such as queuing when moving containers from a vessel to the yard and from the rail to the yard. Reference was made to manoeuvring directly over a truck to lift a container, which involved reversing away from the truck and driving the container to the storage area. Mr Caple then stated: The system of work where the down time was calculated as a micro break would enable the driver to undertake different breaks ranging from resting in their cabin, outside their cabin e.g. for a cigarette or leaving their straddle carrier, or for a toilet break. Micro breaks were separated from extended down time and were considered to be short (one to thirty minute range): extended breaks would allow the driver to leave the carrier and possibly undertake other activities.

[287]

290 The defendant had not shown Mr Caple a graph recording workers compensation claims in relation to straddle driving, or that such claims had increased between 1998 and 1999 and had been slightly lower in 2000. This information merely showed that people reported injuries and he was interested in looking at the primary causation of symptoms and possible injuries. In explaining his view that the reporting of injuries was not necessarily a good indicator of what was happening on the job, Mr Caple said that traumatic injuries were usually recorded when they occurred and there was a traumatic event, but with overuse injuries they tended not to have a particular point in time when it could be said the injury occurred. Workers may have discomfort but it may be related to a whole range of factors and it may be very difficult to pinpoint what was the cause. It may well be that people who are happy in their workplace may be more tolerant of discomfort than people who are not particularly happy with their work. Overuse injuries were complex problems. He was not able to say whether his reports had solved the problem because he had conducted the analysis and somebody else might have to judge the issue. He had developed recommendations and he needed further consultation with the drivers to validate the recommendations and to actually produce necessary risk controls. That might happen in a normal project, but these reports were not typical of what would be done in a consulting project where there would be ongoing consultation with the drivers and the management. The purpose of these reports were to get an idea of causation: it was not the end to end process with a working through of the recommendations and a monitoring of them for their effectiveness. Mr Caple did accept that the driving of a straddle presented a range of unacceptable risk factors from the biomechanical perspective as a result of the design of the truck and the cabin in particular. He still adhered to that view. Driving 90 degrees to the fixed seating position was an unacceptable risk factor and there were a whole range of risk factors. The risk factors were associated with the posture that the drivers adopt when driving the straddle rather than the design of the straddle driver's cabin in isolation.

[321]

327 A new type of seat for the straddle was developed in consultation with the straddle operators at Patrick's Fisherman Island terminal in Queensland - after trial and acceptance by the local Occupational Health and Safety Committee, the seats were fitted to straddle carriers at that terminal. That seat was then trialled at the Pt Botany terminal between May and August 2000. There were some driver comment that the seat was unsatisfactory although others thought it was better than the existing seat. In August 2000, the Occupational Health and Safety Committee at Pt Botany rejected the trial seat and following that decision, Mr Bilston had the trial seat removed from the straddle and the original seat was re-placed. After that trial there was no further discussion by the Occupational Health and Safety Committee about the seat or any other trial seat prior to the commencement of these proceedings. Consideration was then given, from the beginning of 2001, to another seat which could be fitted to the fifth generation straddles at the terminal. This prototype seat took a considerable time to develop and finalise and was not made available by the manufacturer until November 2001 when it was fitted to a straddle to be tested by the drivers. That seat was later removed because it deteriorated over a period of approximately six months. Three new sixth generation carriers were introduced in about October 2001, and had a similar seat to the second trial seat, in that there was air suspension and controls on the arm rests. Mr Bilston understood that the drivers liked these carriers and made no specific complaint in relation to the seats. It was accepted by Mr Bilston that the operation of straddle carriers damaged the road surface at the terminal by forming ruts. There was an ongoing maintenance programme to repair the pavement with the average cost for repairs being $65,000 per month. In 2002, there was approximately $400,000 spent for ongoing repairs to the pavement. There was a planned total upgrade of the terminal with the replacement of the pavement due to commence in the latter part of 2003.

[359]

366 Ultimately, Mr Caple was unable to say whether or not the system of work at the Pt Botany terminal was safe or unsafe for the drivers. He was careful to state that he had not been engaged to conduct an "end to end" exercise with the aim of eliminating potential dangers in the workplace and he was not usually involved after risks had been identified in order to propose remedies. The "end to end" process that Mr Caple referred to involved, as a first step, consultation with the employees and the identification of the problems they expressed as existing in the workplace. This was the step of looking for a pattern and identifying the factors that may have resulted in this pattern of claimed injuries. However, in all of his reports, Mr Caple refrained from that approach, perhaps understandably, because that was not the exercise upon which he was asked to research and report. The complaints of the drivers, therefore, sit largely unattended by a consideration of their effect by Mr Caple, with the comment that although he was in no position to contest the medical opinions and symptoms identified by medical practitioners, he appeared to be dissatisfied with those opinions and identified symptoms where there was no stated, objective evidence: the doctors were relying on the description of the work and a description of the symptoms given by their patient. Mr Caple did accept that in the absence of permanent injury that there were usually no objective signs which may verify back and neck soft tissue injury. Similarly, in the approach adopted by ergonomists, as identified in his evidence, the process of consultation with the workforce does not appear to be subjected to a search for ultimate truth assessed by reference to some exacting standard: an Hohfeldian analysis was not required. A pattern of similar complaints arising out of the same work appeared to be sufficient to move the enquiry onto an examination of what parts of the body were involved in performing the tasks that formed the job. As Mr Caple stated, the complaints are accepted on face value.

[364]

371 Having accepted the medical evidence and the evidence of the drivers as to the existence of these various soft tissue injuries, I am satisfied that during the charge period the straddle drivers at Pt Botany terminal were potentially at risk of suffering repetitive strain type soft tissue injury as a result of the various postures that they adopted in driving the straddle crane. This potential risk was real rather than theoretical. This finding needs to be put in context. Although not a great deal of attention was paid to the matter, the evidence suggests that there was a sizeable workforce at Pt Botany involved in straddle driving. There is detailed evidence of the injuries claimed by those drivers nominated in the charge who were subject to close cross-examination and a thorough review of their medical histories. I also accepted evidence that a further relatively small number of employees during the charge period made complaints that they suffered repetitive strain type injury to the back, arm, shoulder or neck while driving the straddles. The evidence, however, does not allow me to conclude that all drivers, or even a significant majority of drivers, have suffered these type of injuries. The evidence does demonstrate that there were other areas of work and those areas of work (for instance, portainer driving) may have formed such a significant part of the overall duties of those employees as to not put them at risk or at least the same level of risk. There was something of a common theme in the evidence of the medical practitioners that firstly, the frequent adoption of the extreme postures for extended periods, demonstrated in the video of the work, was not advisable and was ergonomically unsound. Secondly, that younger, fitter men without other unrelated pre-existing injuries to the neck, back or shoulder might be more robust than older men and may not feel the same discomforts and soft tissue symptoms of which the older men complained. The detailed evidence, however, while limited to six employees, included younger men who had been physically fit and engaged in a wide variety of sports who nevertheless succumbed to soft tissue injury. This evidence suggests that, for a variety of reasons during the charge period, not all employees were exposed to the same level of likelihood of suffering repetitive strain soft tissue injury.

[374]

381 If the matters as set out in paragraph 11 of the systems of work charge could be categorised as particulars of omissions and/or failures by the defendant, there are other difficulties. The evidence does not permit a decision to be made, to the criminal standard, that the risk of soft tissue injury was causally linked to any single matter specified in paragraph 11. The whole thrust of the expert evidence was that, by a detailed process of consultation and investigation, the various factors at play which brought about the pattern of soft tissue injuries complained of by the workforce would need to be closely examined in order to implement workplace changes that would remove the risk of that injury. It is here that previous injury, susceptibility to neck or back pain, degenerative change brought about naturally by the aging process, the relative individual robustness and age of operators, all have some role to play in the consideration of remedial steps. There was no expert evidence that asserted that if there was exercise before work these repetitive strain soft tissue injuries would not occur. There was no expert evidence that asserted that exercise during the performance of duties would prevent repetitive strain soft tissue type injury. The thrust of all the expert opinion was that a variety of measures would need to be adopted in order to meet the variety of potential susceptibilities of drivers. I am in no doubt, however, that a combination of exercise, job rotation, the performance of other duties exercising other body muscles and a number of breaks from the work rather than the one long 45 minute break for lunch would address and remedy the risk demonstrated to exist during this charge period. The existence of shorter driving periods and job rotation alone in the period between late 1997 and September 1998 suggests that such measures were effective in eliminating the risk of repetitive strain soft tissue type injury. Since these prosecutions commenced, the defendant has introduced a facility for exercise and an additional break together with a capacity for the relief of the driver of a straddle during the shift.

[398]

405 I accept the evidence of the straddle drivers and the other evidence that supports a continuing difficulty with the stiffness of the adjustment mechanism on the seats and the need for the seats to be sent to a maintenance depot because of the inability of the driver to adjust the seat. It is not surprising that, if the seat remains stiff and unable to be easily adjusted even after visits to the maintenance depot, drivers would more than likely simply accept the inability to resolve the difficulty and continue driving. In January 1998, in a meeting with WorkCover representatives, representatives of the defendant accepted amongst other things that the seat adjustment on the new straddles was not easy and should be rectified. The manufacturer/distributor was to be advised and would be asked to attend to the adjustment. There was other evidence that during the charge period the defendant was aware of deficiencies in the seat adjustment and the maintenance of the seats. A Noel Arnold report made recommendations, which were accepted by the defendant, that included the introduction of maintenance to ensure that the straddle seats were serviceable and also the need to ensure that the drivers adjusted the seats to their personal requirements before commencing a shift. Over this time, there were two or three companies who were contracted to perform the maintenance work on the straddles including maintenance and adjustments of the seats. These difficulties appeared to have continued after the charge period. Mr Watson gave evidence that in February 2000 he hit a bump in the yard causing the seat suspension to "bottom out", leading to a "jarring" of his back. He had a number of diary entries nominating seat problems in the straddle and at the same time complaining of a sore back and hip. There were similar types of complaints made by some of the other drivers but not with any great frequency. One particular seat had an extensive history of maintenance but the seat continued to give problems over a long period of time.

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