Robert Darcy Coombs v Patrick Stevedores Holdings Pty Ltd

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

PROSECUTOR Mr B Docking of counsel SOLICITOR Turner Freeman

DEFENDANT LEGAL REPRESENTATIVES: Mr I Barker QC with Ms P McDonald of counsel then Mr Game SC with Ms P McDonald of counsel SOLICITORS Freehills

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter Nos. IRC 5194, 6102, 6103, 6104 and 6105 of 2000. Robert Darcy Coombs v Patrick Stevedores Holdings Pty Ltd. Prosecutions under s 15(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2004] NSWIRComm 77

INTRODUCTION 1 These five prosecutions have a lengthy history being the subject of three interlocutory judgments: the judgment of the President, Wright J 2 March 2001 (2001) 103 IR 417; a Full Bench on appeal from that judgment on 21 March 2001 (2001) 104 IR 240 and a judgment of mine on 29 August 2002 dealing with a "no case" submission ([2002] 118 IR 401). The prosecutions were filed in and around mid-December 2002 and the final hearing has occupied 39 days. There are 2121 pages of transcript of the proceedings and the exhibits concluded with Exhibit ZZZZ. There was a substantial break in the proceedings after the initial five weeks (which had been allocated to deal with the entirety of the case) but that time was sufficient only to deal with the prosecution case. In view of the defendant's demand that it be given an uninterrupted period in which to present its case, a facility which had been enjoyed by the prosecutor, the matter was unable to be listed again for a considerable time following the "no case" submissions of the defendant. These matters alone indicate that the prosecutions were hard fought although, upon a resumption of the hearing in 2003, the defendant announced a plea of guilty to two of the five charges.

2 Although it might be expected that prosecutions under the Occupational Health and Safety Act will be strongly defended, especially in light of the severe penalties available upon conviction, there were aspects of both the prosecution and defence case which raise concern as to the manner in which such proceedings are conducted in the Court. The prosecutor commenced five separate prosecutions under s 15(1) of the Occupational Health and Safety Act 1983 alleging that in the driving and operation of straddle cranes in the movement of containers at the defendant's Pt Botany operation there was an unsafe system of work (one charge), the unsafe use of plant (two charges) and a failure to train the straddle drivers in the safe operation of the equipment (two charges). Apart from the fact that some charges covered a different time frame in relation to the same type of breach, all charges were particularised to a significant extent in identical terms.

3 The gravamen of the allegations was that, under the system of operation of the straddle cranes adopted by the defendant, the drivers were exposed to the risk of neck, arm and back injury although there was no precise allegation of a risk of permanent injury. The evidence called by the prosecutor was designed to demonstrate that a number of the drivers had suffered such injuries, had reported them to the defendant and had received independent medical treatment for the injuries that were said to arise from driving the straddle cranes. It was not alleged that all drivers employed by the defendant suffered injury as a result of driving the straddles: there was evidence of drivers having previous injuries which were aggravated by the driving of the straddle cranes. The nature of the risk to which the drivers were exposed could be broadly described as repetitive movements and the adoption of extreme body postures resulting in strain and soft tissue injury.

4 During the course of final addresses, counsel for the prosecutor accepted that the five separate charges could have been brought as one single charge bearing in mind the provisions of s 49A of the 1983 Act. The interlocutory proceedings had, in part, focused on this aspect and had alleged an abuse of process in proceeding in such a manner. While those challenges failed and it is, in my view, open to the prosecutor to have commenced five separate prosecutions, nevertheless, the statutory regime did permit the bringing of one single charge. This case demonstrates the need for the prosecutor to focus clearly on the alleged breaches and to plead its case with precision. 5 I have recently observed that this part of the Court's jurisdiction is something of a hybrid utilising aspects of pleading in cases of common law negligence within a criminal jurisdiction and involving potentially very high penalties (see WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs & ors [2003] NSWIRComm 452; 12 December 2003). This unusual aspect of the jurisdiction, however, provides no warrant to avoid simple and precise pleading and provides no authority for lengthy and multiplicitous particularisation. Over particularisation of a prosecution case inevitably leads to an ill defined defence case where wide ranging matters are raised in cross-examination or in evidence generally only to be discarded by the end of the case. Regrettably, there were elements of these difficulties apparent in this case. A failure, for instance, for agreement to be reached about the precise features of a particular seat used in a straddle crane at a particular time led the defendant to tender the seat in evidence: the Court can only be thankful that a similar disagreement did not arise in relation to a particular straddle crane.

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.

7 There were elements of the same difficulties evident in the present case. In addition, the prosecutor took the curious approach of claiming that each of the five cases sought to establish a single criminal activity or enterprise. In the written outline of submissions the prosecutor put that the pattern of the defendant's conduct which emerged over the period covered by the five prosecutions if taken individually did not reveal the true overall situation or criminality involved. In this approach the prosecutor relied upon the judgment of the Court of Criminal Appeal in R v Moussad [1999] NSW CCA 337 (27 October 1999) where it was said that the courts in this State had found that enterprise counts had their place in drug supply and fraud cases where it was important to stress the overall criminality. Some large scale heroin and cocaine operators supplied relatively small amounts at a time so that if caught they could not be charged with supplying a commercial quantity or a large commercial quantity. In order to bring home the full extent of their criminality and ensure appropriate punishment, the quantities from a number of acts of supply had to be aggregated. Similarly in some fraud cases, as part of systematic and long term defrauding, small sums are taken: each instance may well involve only a small sum which can be dealt with by a Magistrate but often frauds continued over some years. The smaller the sum taken the less likely it is to be investigated and discovered. Thus it was said to be legitimate to conclude that all the acts complained of and set out in the particulars of criminal enterprise formed part of the same criminal enterprise and were linked by a common purpose. The numerous acts made it clear that what was involved was the ongoing sustained and systematic defrauding of the Commonwealth.

8 These considerations do not sit easily in a legislative scheme which provides for absolute offences. It is also difficult to accept that in operating the container terminal the defendant was involved in some continuing criminal enterprise because during the charge period there was an ongoing failure to observe occupational health and safety law in relation to the operation of straddle cranes. Ultimately, this description and categorisation by the prosecutor was at best unhelpful and at worst was confusing. I have found it possible to deal with the alleged breaches of s 15(1) of the Occupational Health and Safety Act 1983 without resort to these notions.

THE NATURE OF THE CHARGES PARTICULARISED 9 In the judgment given on the "no case" submission for the defendant [2002] NSWIRComm 215, 29 August 2002; 118 IR 401, I summarised the five prosecution breaches as follows: [79] … In the present proceedings, although there are five summonses, they may be categorised as falling into: (a) a system of work charge; (b) an information, instruction and training charge in two distinct periods; and (c) a plant charge falling into two distinct periods. The system of work charge is essentially about the failure to provide more than one break per shift and the failure to implement appropriate exercise programmes. The information, instruction and training charges are essentially about the failure to instruct and train in relation to seat adjustments, steering wheel adjustments and stretch exercises. The plant charges are essentially about access to a radio, a computer terminal, the failure to provide mirrors and the failure to provide a fixed cabin.

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.

11 Following the judgment on the "no case" submission for the defendant, the matter resumed in July 2003 to hear the defendant's case. At the opening of the resumed proceedings, senior counsel then appearing for the first time for the defendant, announced (apparently without prior notice to the prosecutor) that a plea of guilty would be entered in relation to the two information, instruction and training charges (Matter No IRC 6102 of 2000 and Matter No IRC 6103 of 2000). The prosecutor called on the defendant to indicate to which of the particulars it had pleaded guilty, if all had not been so pleaded: initially, the defendant declined to do so on the basis that the plea of guilty itself was sufficient and that the defendant could not be called upon to nominate the particulars which it accepted in the plea of guilty. The Court needed to be informed of the facts of the charge to which the plea of guilty was being entered, and the defendant then indicated that the failures and omissions accepted were: a failure to adequately or at all provide to operators of straddles information, instruction and/or training in operating posture; a failure to adequately or at all provide to operators of straddles information, instruction and/or training in seat adjustments; a failure to adequately or at all provide to operators of straddles information, instruction and/or training in steering wheel adjustments and a failure to adequately or at all provide to operators of straddles information, instruction and/or training in stretch exercises.

CONCLUDING EVIDENTIARY ISSUES 12 During the resumed hearing, in the wake of numerous objections to evidence, the parties adopted as a convenient approach the conditional admission of certain evidence with its final status to be determined after all submissions had been received by the Court. While this is not always an appropriate approach, in the present case it provided an opportunity to consider the objections raised in light of the evidence in the entire case which itself had been disrupted by the lengthy period between the hearing of the prosecution case and then the hearing of the defence case.

13 The defendant opposed exhibits B and E being admitted on an unrestricted basis. Exhibit B was a covering facsimile sheet on Patrick's letterhead followed by a facsimile sheet on Freehill's letterhead (being the defendant's solicitors in the proceedings) followed by a draft letter from the consultants Noel Arnold & Associates Pty Ltd directed to Freehills concerning the Occupational Health and Safety review of straddle cranes and further followed by an ergonomic assessment of straddle carriers at Fisherman Island, Wynnum, Queensland. Exhibit E was the report of the consultants Noel Arnold & Associates Pty Ltd and with minor deletions was substantially that part of Exhibit B which was the ergonomic assessment provided by the consultants to the defendant.

14 Patrick's covering facsimile excited most attention from the time the document came into evidence. That facsimile was sent by a Mr Synott to a Mr Beech, both persons holding managerial positions with the defendant. The document was dated 13 July 1999 and read as follows: This is the friendly report. Apparently Barry Sheriff spent two hours with Noel Arnold making it as good as possible. Could you read it please and then would it be possible to discuss the way forward … Mr Sheriff was identified as a partner with Freehills, and part of the exhibit was a letter from Mr Sheriff to Mr Synnott and another person at the defendant dated 9 July 1999. This letter attached for urgent consideration a letter from Noel Arnold & Associates and its draft report, and asked for comment as soon as possible. The letter indicated that after comments had been received arrangements would be made for Noel Arnold to fax the final report to the defendant without any reference to Freehills. The final report in fact deleted reference to the report being sought by Freehills or being provided to Freehills.

15 The letter from Noel Arnold & Associates to Mr Sheriff dated 9 July 1999, although carrying a stamp "draft", nevertheless appears to be acknowledged in Mr Sheriff's letter to Patrick Stevedores as a letter in final form attaching a draft report. The Noel Arnold letter states that the ergonomic issues associated with the task of driving the straddle crane included: sustained neck rotation when driving and operating a straddle; awkward mechanical seat adjustments of the cabin seats; prolonged shoulder elevation when driving the straddle carrier if the steering wheel was not adjusted; and awkward reach postures to access radio and computer terminals. The letter went on to state that a range of existing engineering and administrative controls were identified by both Noel Arnold & Associates and an earlier Re-Start consulting report. It then stated: Under the former shift arrangements and with the effective implementation of the recommendations made in the Re-Start reports it was considered the ergonomic risks posed by the seating arrangements in the crane had been adequately controlled. Recent changes to rostering have increased the length of time between breaks and have also increased the time per day spent operating the crane. The rostering changes have resulted in increased duration of exposure to the ergonomic risks posed by awkward postures and as a result it is recommended measures are taken to control this increased risk. The letter also refers to observing improper adjustment of the seat and steering wheel and the need for training in this area.

16 The reference in Noel Arnold's letter of 9 July 1999 to the Re-Start report is a reference to an earlier report obtained by the defendant in relation to the operation of straddle carriers at Pt Botany. That report also acknowledged and identified certain risks associated with the driving of straddle cranes in the defendant's operations.

17 As earlier indicated, Exhibit E was the final report of the consultants Noel Arnold & Associates. The report identified Noel Arnold & Associates Pty Ltd as consultants in occupational health and safety and risk management. They had been engaged by the defendant to conduct an ergonomic assessment of straddle carriers in use at Fisherman Island in Queensland. The assessment had been undertaken on site in June 1999. The report stated that the emphasis of the report was placed upon the identification of working postures of the drivers when occupying the cabin area and when operating the straddle carrier. Of relevance to the present proceedings were three or four recommendations made in order to comply with relevant occupational health and safety legislation and codes of practice in Australian standards. The first recommendation was to re-design the cabin seating arrangements within the straddle carriers to ensure that a driver could rotate the seat and steering wheel a minimum of 45 degrees to both the right and left. The third recommendation was to introduce a maintenance programme to ensure straddle carrier drivers' seats were maintained in a fully serviceable state, and recommendation four stated the need to revise training programmes to ensure that all drivers were thoroughly familiar with the seat adjustment mechanisms and that they undertook to adjust the seat to their personal requirements before the commencement of each shift. The recommendations were independently adopted by the expert witness called for the prosecutor, Mr Donohue, as were significant other portions of the report.

18 In final submissions, it became clear that the defendant's primary objection to Exhibit D was the reference in Patrick's cover sheet to the document being "the friendly report" and the inferences that might flow from such a description. It was also stated that the document was a draft document and incomplete. That part of the objection has little weight, in light of the availability of Exhibit E as the final document and the evidence of witnesses such as Mr Bilston from the defendant as to acting on three of the recommendations. The description of the draft report as "a friendly report" might suggest that a much more adverse report could have been forthcoming from the consultants, but even that possibility does not overcome the fact that a report may be subject to valid criticism and altered to meet those criticisms as explained. This task appears to have been undertaken by a senior solicitor acting for the defendant and, while undoubtedly acting in the interests of the defendant, there is no suggestion in the evidence that the report of the consultants was inappropriately or improperly modified merely to protect the interests of the defendant. In those circumstances, I can attach no weight nor can I draw any adverse inference against the defendant because of the terms of Patrick's facsimile coversheet.

19 In relation to Exhibit E, the defendant points out that the document is hearsay, is not its own document and the prosecution has declined consistently to call the author of the report. Having regard to the nature of the case it seems to me that Exhibit E is relevant and therefore admissible under s 55 and s 56 of the Evidence Act. The relevance of the report is, firstly, that the defendant engaged advisers on its methods of use of straddle carriers and the ergonomic stresses to which straddle drivers may be exposed in their operation of the machinery. Secondly, the report identifies methods of operation which could be detrimental to the health and safety of drivers and is directly relevant to the issue of foreseeability. Thirdly, the document is indicative of the defendant's appreciation of what is involved in the driving of straddle cranes and is evidence of the steps it took in addressing occupational health and safety aspects of straddle driving.

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.

21 In relation to Exhibit B, the document of most relevance is the covering letter sent by the consultants to the solicitors acting for the defendant. This document is not part of Exhibit E but, on the same basis that I have approached Exhibit E, I would admit for all purposes Exhibit B. In doing so, I accept, as I have already indicated that there is no adverse inference that can be drawn against the defendant because of Patrick's cover sheet and the reference to the "friendly report", and it is the document in its entirely that is admitted because it places the letter from the consultants in an understandable context which is then capable of being compared with Exhibit E.

22 Exhibits S and ZZZ were objected to by the defendant on the basis that they contained representations made by a number of straddle drivers as to their injuries, but only some of those drivers were called to give evidence and thus the defendant was deprived of the opportunity of cross-examining those drivers. No objection was raised to receiving these two exhibits on the basis that they were no more than a record of the representations made by each driver as to their injuries: the records should not be received, on the defendant's submission, as to the truth of the fact of those injuries.

23 Exhibit S was a document carrying the words "Patrick - the Australian Stevedore". The exhibit contained entries in relation to 18 drivers including those specifically named in the charge and was entitled "Straddle driver review". In relation to each driver dealt with, it contained details as to classification, date of injury, date of report, nature of injury, time off work, cause of injury, present medical status, previous injuries, nature of injury and cause of injury. There was also a box for "comments" which recorded in relation to various drivers whether they were still troubled by injuries, the nature of the injuries and whether there were other claims being pursued such as common law claims.

24 Exhibit ZZZ was a number of Patrick "incident report" sheets which recorded details of an accident, incident or damage to straddle drivers. Part of each report was required to be completed by the first aid officer or "as applicable", and required an identification of the nature or type of injury, the part of the body that was injured, whether the person had ceased work, a brief description of the injury, a description of what the injured person was doing and what happened, and a description of the treatment given.

25 In relation to both Exhibits S and ZZZ there is sufficient adoption of those documents by the defendant to have them admitted as business records and for all purposes in the proceedings. The objection taken by the defendant may also be an indication of its dissatisfaction with the manner in which the prosecution case was conducted but also ignores the course of the case. The six drivers who gave evidence in the prosecution case were closely cross-examined as to their injuries and, at times, to their industrial motivation. Indeed, the first driver called as a witness spent nearly five days in the witness box and was cross-examined for the best part of three days by senior counsel for the defendant. At the conclusion of the prosecution case there appeared from the nature of the cross-examination to be a potential issue sought to be raised by the defendant as to whether or not the injuries claimed were part of an industrial campaign against the defendant. Although that issue was "in the air", ultimately it was never put directly to the drivers who gave evidence that their injuries did not exist. Much of the cross-examination centred on previous injuries or subsequent injuries which may have exacerbated those claimed to have arisen from straddle driving, and there was also an emphasis in cross-examination on the ability of the drivers during the course of their shift to take breaks and thus relieve themselves from the repetitive neck and back strain of which they complained while straddle driving. As I have noted earlier, ultimately there is no issue as to the existence of a number of injuries amongst the straddle drivers, although it would appear that there were others who had not reported or claimed any injury arising from their duties. Further, the defendant tendered reports of Mr Caple which dealt with the medical records of a number of drivers not called to give evidence - another indication that the existence of complaints and injury was not an issue.

26 The next issue concerns the use to be made of evidence of actions taken by the defendant after the period covered by the charges. In the present case this arose during the long adjournment between the closure of the prosecution case, the "no case to answer" submission and the resumed hearing. At the resumed hearing, leave was given to the prosecutor to re-open its case and to adduce further evidence as to steps taken by the defendant in relation to its system of work regarding straddle driving. That material was allowed on the basis that it was relevant at least to the practicability of additional measures to address the risks to which the drivers were allegedly exposed. The evidence was therefore relevant to any potential defence which might be argued by the defendant.

27 The defendant asserted that this approach was unfair to the defendant in criminal proceedings and that previous rulings relied upon by the Court were in error (namely, WorkCover Authority v Rail Infrastructure Corporation (2001) 109 IR 209). The defendant did not provide details how each piece of evidence so admitted operated in a way that was unfair to its interests but was content to make a general and broad objection. As the objection was developed, it appears that the defendant accepted that actions taken by an employer after the incident giving rise to the charge might be admitted into evidence but were limited only to the question of practicability and any s 53 defence. The submission was then further refined so that such evidence could not be used as an admission. The Rail Infrastructure case and the cases relied upon to support the admissibility of such evidence did not hold that the subsequent actions taken by the defendant were admissions. In my view, once the evidence is relevant it may be admitted but whether that evidence assists in concluding a defendant's guilt will rest on a number of considerations including the nature of the breach alleged. The present case is somewhat different because the evidence shows that there were different methods adopted in the shift work prior to the charge period and following the charge period: there were also differences in the number of containers moved on an hourly basis. These matters, in the context of an allegation of repetitive strain injury, appear to raise different and perhaps difficult issues concerning the use of such evidence in determining the guilt of the defendant. In the present proceedings, I see no reason why that evidence should not be available for such purposes but the evidence alone would not act as an admission.

ELEMENTS OF AN OFFENCE UNDER s 15(1) OF THE ACT 28 It was common ground between the parties that the following were the elements of a charge under s 15(1) of the Act which the prosecution had to prove beyond reasonable doubt: (a) the defendant was an employer at the time of the alleged breach; (b) that there was a risk to the employees' health or safety; (c) that there was a causal nexus between the defendant's breach and the risk to employees' safety; and (d) the risk was to employees at work.

29 The defendant, however, took objection to the approach of the prosecutor that there would be a breach of the Act if the defendant did not take any step which might reduce or minimise the risk. The defendant submitted that this approach did not reflect the statutory obligation under the Act and in particular under s 15(1) - the duty was to ensure the safety of employees at work. It was further submitted that this approach by the prosecutor demonstrated the weakness of the case as particularised: in effect it would allow the prosecutor to succeed without demonstrating to the requisite standard that the defendant had failed to ensure the safety of its employees.

30 The prosecutor sought support for this proposition in the judgment of O'Sullivan v The Crown in Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 74. The judgment in O'Sullivan does not appear to go as far as suggested by the prosecutor. In that case Walton J, Vice-President commented that, while certain steps available to the defendant might not have been effective to prevent the attack which took place as a specific incident demonstrating the risk, nevertheless, those steps may have been effective in other circumstances. The structure of the Act required employers to ensure the safety of their employees and permitted defences where it was not practicable to do so. It is a distraction from this duty to focus upon some lower level of protection which is nevertheless ineffective in ensuring the safety of employees. It is upon this basis that I approach the present proceedings. It cannot be said that this approach would result in an employer avoiding the duty if the risk was only minimised, ameliorated or reduced rather than eliminated.

THE WORK OF STRADDLE CRANE DRIVERS 31 The defendant operates a container terminal at Pt Botany. In 1997-1998, the defendant introduced straddle cranes, initially eight in number increasing to 27 in 1999. Mr Caple, an expert witness called by the defendant, stated that in 2000 straddle cranes were introduced to handle rail operations as well as ship loading and unloading. He said that of the 27 straddles at Pt Botany generally 21 to 22 of them were in use while the remainder were under maintenance. He listed the main functions of the straddle trucks as being: to load/unload trucks, to transfer containers to or from ship loading cranes; to transport containers to or from loading cranes and to transport containers between storage locations on the site. The containers were described in imperial measurement as either "20 footers" or "40 footers". The containers were described as being 8 feet wide but could vary in height and length. Mr Caple stated that the majority (approximately 80 per cent) were 8 feet 6 inches high, while there were containers described as "high cubes" which were 9 feet 6 inches high. The vehicles known as "straddles" were often referred to in the evidence as straddle cranes, straddle carriers, straddle trucks or simply as "straddles".

32 Mr Caple noted that the work system at Pt Botany involved the facility operating 24 hours a day, 362 days a year. There was a day shift between 6 am and 2 pm, an evening/twilight shift between 2 pm and 10 pm and a night shift between 10 pm and 6 am. A straddle driver after training, may work in the yard or be allocated to a gang. The gang consisted of six people: one team leader, two crane drivers and three straddle drivers. It was said that a typical shift consisted of three or four gangs depending on ship arrivals and container movement. Each shift normally had three or four gangs allocated and each gang may have specific responsibilities, for example, train loading or loading from the road with the remainder on the dock loading ships.

33 In relation to the nature of the shipping, Mr Caple stated: The ships at Pt Botany varied greatly in size and capacity. They exchange 400 to 2,500 containers during their stop at this Port. Generally 180 containers per crane per shift is expected. However, up to 300 exchanges can be achieved if the crane has minimal movements along the shift. On average a ship will be in a Port for 0.5 to 1.5 days to exchange the containers. Patrick's have a permanent workforce who are trained to drive the straddle trucks as well as a large team of casual drivers who can drive the straddles during busy periods.

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.

35 In relation to the driving of the straddle crane around the Pt Botany site, Mr Caple said: As the straddle truck is driven around the site either with or without a container attached, the driver will tend to travel in the direction where the cabin is leading. This primarily aids visibility during the driving task. As a result of this feature, the majority of the driving activities involves looking out the left window of the cabin. … It was accepted by Mr Caple and there was additional evidence that constant use led to the roadway becoming uneven, thus causing vibration in the driving cabin.

OUTLINE OF PROSECUTOR'S CASE 36 In March 2001, well before the case was listed for substantive hearing, the prosecutor provided an outline of the nature of the case. That document included a brief factual chronology. It was said that in late 1997 the then Patrick corporate employer started a phased introduction of straddle cranes at its Pt Botany terminal. In January 1998, a risk assessment was carried out by Re-Start Consulting on behalf of the terminal operator at Pt Botany. Further, between January 1998 and September 1998 problems in the operation of the straddle cranes were more limited as a result of job rotation and downtime. Employees worked a shift with two breaks, there was more rotation of jobs and there was "three for two staffing" (ie three employees for every two machines). On 13 September 1998, a new enterprise agreement came into effect and the defendant required employees to work a full shift on the straddles, often working all day every day, with only one break per shift. Thereafter there was said to be a "surge of injuries at work" whilst operating straddles. From mid-1999, numerous enquiries had been made by the Occupational Health and Safety Committee at the terminal as to the steps taken by the defendant, but it was alleged that the defendant had not remedied the risk to health, safety or welfare of employees operating straddles adequately or at all. By 2000 there were approximately 24 straddle cranes operating at Pt Botany.

37 The prosecutor stated that he relied upon a single criminal enterprise or criminal activity, the overall nature of which involved the unsafe operation of straddle cranes exposing employees to the risk of overuse injuries. Evidence was to be adduced from six employees of the defendant who at various times operated straddle cranes at the Pt Botany terminal, and these employees were said to represent a selection of employees exposed to risk to their health and safety.

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.

39 In the outline, it was submitted that the defendant aimed to achieve continuous operation of the Pt Botany terminal including the use of straddle cranes. In this operation, it was alleged there was a risk to the health, safety and welfare of any or all of the defendant's employees in that there was a risk of neck, shoulder, spine, upper limb and/or back injuries - overuse injuries. Of significance was the January 1998 risk assessment by Re-Start Consulting which assessed the following risks from the driving of straddles at the terminal: (a) sustained neck rotation when driving and operating the straddle; (b) awkward mechanical seat adjustment of the cabin seats; (c) prolonged shoulder elevation when driving the straddle if the steering wheel is not adjusted, and (d) awkward reach postures to access the radio and the computer terminals.

40 In opening the prosecution case, it was stated that the approach adopted by the prosecution was to rely upon the actual injuries to employees as manifesting the existence of a detriment or risk to health, safety and welfare. These injuries provided, in addition, some evidence of the degree of severity of the detriment or risk. While it was accepted that the prosecutor need only prove the potential risk, and while there would be a reliance upon actual injuries as the manifestation of the risk, it was put that those matters were not essential factual matters required to be proved for the prosecution to succeed.

41 In relation to the nature of the work, the prosecutor opened by stating that the driving of a straddle crane involved two pedals, an accelerator and a brake which were at 90 degrees to the way the cabin faced. The evidence to be adduced would be that much of the time spent in driving the straddle cranes involved travelling from one place in the terminal to another for the purpose of picking up or depositing a container. It was suggested that the distance of travel was up to one kilometre, thereby requiring the driver to go with the container for a kilometre, deposit it and then drive back absent any container. Part of the operation was the raising and lowering of containers. This might occur on or off a truck or in a position in the yard at the terminal. For this work it was necessary for the driver to adopt a twisted posture either to the right or left depending upon the direction of travel. For the driver to look below the level of the cabin, a bent posture was necessary and all the time the driver had his or her legs and arms in front of them. The straddle cranes were able to pass over the top of or negotiate over the top of three containers stacked on each other: a considerable height. Thus, a driver had to adopt a bent posture and had to flex the neck down and sometimes to the side on other occasions. There was also a preponderance or disproportionate amount of time driving forward or to the left. The drivers were positively discouraged, for good and proper safety reasons of visibility, to drive normally to the left. For example, a driver would drive to the right when manoeuvring into a stack of containers. It was also said that the driving posture was compounded by the state of the roadway at the terminal with the road during the charge period being rutted, potholed and containing depressions. Steel plates had been used to patch up the state of the roads.

EVIDENCE OF THE WORK AND WORK INJURIES 42 Mr Watson was 52 years of age and had been employed as a waterside worker since June 1974. He began work at the Pt Botany container terminal in late 1981 and continued to work there for a number of employer entities. He had been employed by the defendant, as part of the Patrick's group, since September 1998 having previously been employed by another entity in that group.

43 Mr Watson explained that from late 1997 the straddle cranes had been introduced at the Pt Botany terminal and how there had been training until all employees were capable of operating the straddles. He said that there was a formal system of rotation for operators of the straddles: this meant they were not required to work the full shift on the straddles.

44 In April 1998, a major industrial dispute developed where the workforce was locked out for one month. Work resumed at the terminal under an administrator until the settlement of the dispute where a new enterprise agreement operated, commencing in September 1998.

45 Mr Watson was involved in training for straddle driving early in its introduction but, after the 1998 enterprise agreement, it was not until October 2001 that he was again recommended as a trainer for straddle cranes.

46 Mr Watson spoke of the difference in driving the straddles under the 1998 enterprise agreement. He stated that each operator worked an eight hour shift compared with a seven and a half hour shift prior to the agreement. He said that straddle drivers were required by the employer to work a full shift in the straddle crane apart from one break: three and three-quarter hours worked firstly, followed by a forty-five minute break which was then followed by three and a half hours in the straddle crane. From time to time there were extensions of up to four hours required by the employer and if the extension was for one hour there was no extra break provided. Where the extension was over two hours, an extra 20 minute break was provided. The extensions meant that on occasions straddle drivers worked longer than the three and three-quarter hours or three and a half hours usually involved in driving the straddles. The one meal break of 45 minutes replaced two breaks under previous arrangements, a smoko of 20 minutes and a crib break of 25 minutes. Mr Watson also said that there was no rotation of work on the straddle crane under the new agreement and employees were required to work the full shift in the straddle every day. There were rare occasions when a straddle driver may be involved in duties other than straddle driving. Mr Watson said that these arrangements continued until there was a change brought about by the 2001 enterprise agreement.

47 It was estimated that the introduction of straddle cranes at the terminal was completed by March 1999: Mr Watson said that, as a result, informal rotation on the job disappeared. The only exception appeared to be in the rail area which represented only a small part of the total operation involving two straddle cranes. Mr Watson gave evidence of the operation of straddles at the terminal involving loading and unloading trucks, carrying containers to and from portainers at the ships, carrying containers to and from the rail storage area, carrying containers between storage locations on the site and working in the "Y block", an interchange area.

48 The terminal worked as a 24 hour operation with three shifts. Gangs in the ship area were made up of six people: a team leader, two portainer drivers and three straddle drivers. Where the work required it in the gang, an extra person was picked up to manually take the twist locks out of the containers. In relation to his own work, Mr Watson said that he predominantly worked on straddles since September 1998. He confirmed that the number of straddle cranes in operation at any time depended on the amount of work to be performed and the volume of shipping. Broadly, on the night shift, the work involved at least four gangs and therefore up to 12 employees operated straddles at this time.

49 In relation to the cabin of the straddle crane, Mr Watson said that the suspension seat was almost impossible to adjust for the weight of the operator because the position of the arm rest made it almost impossible to gain the correct setting. Much of the time spent in operating the straddle involved travelling from one place to another to pick up or deposit containers. The pedal of the straddle was at 90 degrees to the way the cabin faced so that the steering wheel and the pedals did not face the way in which the straddle was driven. While driving, and more particularly when raising or lowering a container onto or off a truck or into a position in the yard, Mr Watson said it was necessary to adopt a "twisted posture" either to the right or left depending on the direction of travel and also involved a posture which was bent forward to allow the operator to look below the level of the cabin at all times while having the driver's legs and arms in front of him. Mr Watson said these difficulties were compounded by the state of the roadways, being rutted and having depressions and potholes which caused substantial jarring while working in a twisted and bent forward position in the cabin.

50 Mr Watson described the duties of driving and operating straddles as involving "repetitious work". The driver was responsible for operating the spreaders and loading the containers which came in two sizes, "20 foot" and "40 foot". In gaining access to a 20 foot container, an operator was required to look to the right side to view the contact of the spreaders. When gaining access to a 40 foot container, operators were required to view both the left and right side of the container and this required "right and left rotation".

51 He estimated that as much as approximately 70 per cent of his time driving straddles was spent driving forwards. Operators were required to look over their left shoulder and used either the left or right hand to steer according to personal preference. He disagreed that this driving was not stressful in terms of posture nor could it be regarded as involving an "informal rest". When driving in a forward direction to the next job, Mr Watson found there was no difference between driving loaded or unloaded because the driver was not in a comfortable position, using his left hand to steer, he braced himself using his right arm with his neck turned to look over his left shoulder. His body was twisted during this time and the road was often rutted with bumps and potholes leading to continuous jarring and there was a need to constantly move his head and neck to look ahead and also behind to see that there was nothing behind. In his experience, the only "informal rest" was when a driver was placed on standby which was for a brief period of time. During this period the driver was seated. He accepted that a rest may occur if there was a breakdown in machinery or involving hatch movements, but the driver remained seated or would be directed to work in another area, being the yard. Even when seated he looked to the left waiting to move off.

52 Mr Watson drew attention to a notice to all employees issued in November 1999 in which the defendant advised that working hours were to be "strictly adhered to" and disciplinary action would be taken against employees who ceased operations early without permission from the shift manager or the team leader. This notice also drew attention to straddle breakdowns and the requirement for the driver not to leave the equipment until told to do so by the shift manager or the team leader. A breach of the instructions would be regarded as misconduct.

53 Between the end of 1999 and the beginning of 2000, Mr Watson said that he experienced neck and back pain after driving the straddle for long periods. This became worse after he severely jarred his back on 26 February 2000. He consulted a local doctor but did not have any time off work in relation to this issue although he had other health problems which caused him to lose time from work. He had claimed compensation in relation to these symptoms and liability had been accepted. He had been treated with continuing physiotherapy since March 2000.

54 Mr Watson confirmed the details of neck and shoulder pain he had suffered while driving the straddle crane and said that when driving he had to continually look to his left. He found that this caused neck and back pain.

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.

57 Mr Watson confirmed that three measures identified in the 1998 Re-Start report had not been implemented by the defendant, namely, maintaining three men across two straddles in the rostering schedule; educating operators in an appropriate neck stretch exercise programme; developing and implementing training sessions on stretch exercises for inclusion in the existing operator training programme and the design and production of sketch exercise charts for display in each cabin. Mr Watson rejected a further suggestion to drive facing forward as being contrary to safe operating procedures at the terminal. By 15 November 2000, Mr Watson had been provided with a light exercise manual for straddle carrier operators by the defendant. There had been no prior training, instruction or information regarding the contents of that booklet. At some period considerably after receiving the manual, the defendant arranged a session with a physiotherapist to explain it to the drivers and to demonstrate stretching exercises said to be of assistance while driving.

58 Towards the end of May 2000, the defendant introduced a new seat for trial on one straddle truck. This seat was able to be rotated 90 degrees to allow easier access to the seat and was meant to allow five to ten degrees shift to the left during operation of the straddle.

59 By reference to various consultants' and experts' reports, Mr Watson confirmed the following factual matters in relation to the driving of straddle cranes at the Pt Botany terminal: (a) the work was repetitive; (b) there were short and infrequent work pauses with the exception of the 45 minute break on a normal shift; (c) the driver remained in the same position in the straddle cabin, remaining in a seated position; (d) the arms were elevated , that is, outstretched when driving; (e) there were sustained head postures; (f) there was an exposure to vibration due to the condition of the roads; (g) there was a bonus system in operation, which he equated to a piece rate wage system; (h) there were times when there were accidents involving straddles bumping into other objects; (i) when driving straddles around corners the operator could feel the force of that movement; (j) there was an inappropriate seat design; (k) there was a reliance upon the straddle drivers placing containers in the correct position, plus there was a high demand for precision and attention in this work. There were some disabilities identified which Mr Watson was able to indicate he had not experienced during his time as a straddle driver. Mr Watson was unaware of a particular problem with a "blind spot" when driving at Pt Botany and the need for mirrors to correct that difficulty. In relation to other reports, Mr Watson confirmed that there was sustained neck/trunk bending and twisting during the driving of a straddle car on shift. This was combined with repetitive hand and foot movements. Apart from advice he had been given by his own medical advisers, Mr Watson said he had never been advised by the defendant to step outside the cabin during the shift to take a short break or exercise.

60 Mr Watson said that prior to the 1998 enterprise agreement the average hourly movements of containers had been around 14 or so per hour and the defendant had sought to increase that to an average of 25 an hour under the terms of the 1998 enterprise agreement. To achieve this productivity level, an incentive bonus was introduced as well as the roster changes already detailed. In his oral evidence Mr Watson said that anything over 150 movements of containers qualified for the bonus. The yard straddle driver needed 85 movements per shift to get a bonus.

61 Mr Watson also spoke about the seat in his straddle collapsing, and going to maintenance for the fitters to tighten it so it would not move. Maintenance was performed at Pt Botany and covered any problems in relation to the straddles, and he said this occurred daily. Mr Watson also identified a number of entries in the defendant's First Aid Book and confirmed their accuracy in relation to injuries he had raised and the discomfort he had experienced while driving the straddle crane.

62 In cross-examination, Mr Watson accepted that in the reports he made to First Aid there were a number of jarrings, but the most serious was in late February 2000 which ultimately resulted in a workers compensation claim. In that accident, the straddle crane had hit a pothole. He had, however, never lost a day of work. Injuries in the First Aid Book also included driving a forklift and an aggravation of that injury. On a number of these occasions, Mr Watson received Panadol for pain. The first reference to a back injury appeared to have occurred in December 1999 but no treatment was recorded. These reports were sometimes made because pain could develop later.

63 Mr Watson accepted that he could leave the straddle to go to the toilet: he thought that arrangements could probably be made to leave the straddle to make an urgent call or to leave the straddle because of pain. He did not believe that there were any number of reasons which would enable the driver to leave the machine. There did not appear to be any entries in the First Aid Book about excessive vibration of the straddle. He accepted that the machine would, from time to time, stop while in a queue and it was then possible for the driver to sit and read a paper or some other document. The stoppages in work were unpredictable but happened from time to time. Mr Watson had commenced driving straddles in 1997 and the first problems had occurred in 1999. He had experienced discomfort but no real injury until February 2000.

64 Mr Watson confirmed that the Re-Start report of June 2000 recorded him as saying that the cabin seat gave him inadequate lumbar support and did not support his lower spine.

65 The working of three and three-quarter hours and three and a half hours, putting aside the 45 minute break, otherwise without a break was not an exaggeration. Mr Watson did concede that a driver could get out of the cabin if he wanted to. His experience was that a driver must turn his neck and spine whilst driving. Although he had performed some driving in 1997 and 1998, it was put to him that it was not until late 1999 that it was causing him difficulties. Mr Watson accepted that in late 1999 there were difficulties experienced with driving, but he believed that it was an accumulation of two years of carrying injuries and the increased driving. Potholes were not a problem in 1999 and he could not recall any in 1997 or 1998.

66 Under the 1998 agreement, specific provision was made for rostering straddle drivers because the previous agreement was drawn for the use of gantries and fork lifts. The 1998 agreement introduced the approach of one man per straddle. Mr Watson said he did some work besides driving straddles but that was rare. As the work for straddles expanded the other type of work dropped off. Under the 1998 agreement, one employee was referred to as the WWR (work where required). Those employees had been trained to drive straddles over a period of time. Mr Watson did not know if the defendant had an objection to a driver swapping with a WWR man, if he was qualified nor did he know if it had happened. He could not recall that happening as an informal method of relief. Under the 1998 agreement it was agreed that the drivers would drive all day in a shift. He could not recall being relieved at times from the straddle to do other work. There were occasions recorded in his diary where the job for the straddle had ceased and then he was given work on the transtainer, but this happened rarely. Mr Watson's attention was drawn to a number of his diary entries which showed him doing things other than straddle driving. He accepted that he was not commonly required to do extended shifts but he had done some.

67 Mr Watson was shown a video of a straddle being driven at the Pt Botany terminal. He said that the work required a high degree of concentration and a high degree of skill with constant movement of parts of the body in different directions. Sometimes the body would be still but only for a moment: there were also short periods when the driver could relax but they were brief periods when the driver was not required to do other things.

68 When pressed about being able to drive in 1997, 1998 and most of 1999 without serious risk to safety, Mr Watson said that there was a different method of driving applicable at that time: there was an extra smoko break, rotation of the work and a seven and a half hour shift. He though that these may have eliminated the problem. He had done more straddle driving in 1999 than in 1998 and had also driven more straddles in 2000 than in 1999. He also referred to the fact that under the 2001 enterprise agreement a system was introduced where the WWR man could rotate with a straddle driver. In re-examination, Mr Watson said that before April 1998 the system of driving straddles and the number of container movements were different. He was aware of press reports where it had been claimed that previously the movements were only 12 to 14 containers per hour.

69 Dr Daries was Mr Watson's local doctor and on 7 September 2001 had supplied a medical report. He had seen Mr Watson in early March 2000 in relation to pain in his neck and shoulder after driving a straddle carrier. Dr Daries' opinion was that Mr Watson had neck and shoulder pain and that opinion was based on the work he was doing and what he had been told by Mr Watson which was consistent with his own examination. Dr Daries had been in practice for 36 years and was familiar with overuse injuries. In May 2000, there was a report of ongoing discomfort in his neck and there was a continuation of physiotherapy. In March 2001, there was a further attack of neck and back pain while driving a straddle carrier while he was continually looking to the left which caused neck and back pain. It was felt that his symptoms were due to the posture described while driving the straddle. Dr Daries was cross-examined on the proposition that, if Mr Watson had experienced severe back pain on 26 February 2000, he was likely to be still suffering from it on 1 March 2000: Dr Daries agreed that while it was possible, he could not say. While it was likely that he still did have that pain, the complaint that he made was confined to his neck and shoulder. The first reference to back pain was in 2001. 70

Mr Watson was also referred to Re-Start Consulting in May 2000 in order to assess his workplace duties and his current treatment. A report of June 2000 from Re-Start Consulting records that Mr Watson while driving a straddle carrier on 26 February 2000, had hit a pothole and the suspension seat had "bottomed out" jarring his neck and lower back. He had seen his doctor and had been referred for physiotherapy: he had been receiving physiotherapy treatment once a week and had been given a series of exercises to perform at work. The report contained the following entry under the heading "postures required to perform duties": · prolonged seated position; · repetitive neck rotation often combined with neck flexion; · increased lateral flexion of lumbar spine when looking at spreaders; · lumbar rotation when driving forward; · prolonged shoulder flexion to operate controls. The consultant physiotherapist had recommended that Mr Watson stand from his seated posture every 30 minutes and continue with a standing position for approximately one minute. This should ease muscle strain and associated joint inflammation related to repetitive movements. There was also a recommendation to change work practices to give frequent rest breaks from the seated posture.

71 In cross-examination, Mr Watson was asked about the terrible pain to his lower back which occurred on 26 February 2000 which did not seem to have been raised with Dr Daries in the consultation on 1 March 2000. Mr Watson's recollection was that he told Dr Daries of his lower back and his neck and shoulder pain but he was more concerned with his neck and shoulder. The doctor looked at his back and said everything was okay but it did not improve so he returned to the doctor about his back. Mr Watson had been sent to physiotherapy but the referral was only in relation to his neck and shoulder and he needed a new referral for his back condition. When pressed about the description in the report that his back ache on 26 February 2000 was "terrible", Mr Watson said it was a sharp pain and the description was not his: he reported to the first aid attendant and it was up to the attendant how it was recorded in the First Aid Book.

72 Mr Peter Howlett was 41 years old at the time of making his statement and had been employed by the defendant since September 1998, having previously been employed by another entity in the Patrick group. He had commenced employment on the Sydney waterfront in June 1990 at Darling Harbour as a maintenance auto electrician and had transferred to the Pt Botany terminal in May 1997. His employment at the Pt Botany terminal included working on ships, gangs and driving machinery including transtainers.

73 Mr Howlett gave evidence of the introduction of straddle cranes at Pt Botany in late 1997 and early 1998 and the training he received in relation to the driving and operation of the straddles. Prior to April 1998 and the waterfront dispute, although he had driven the straddle cranes, he also performed other duties and did not have to spend the entirety of shifts driving the straddle cranes. After the dispute he said he was driving the straddles for each shift and since the enterprise agreement of September 1998 his duties solely involved driving the straddle cranes for the "entirety of each shift" other than for approximately eight weeks in late 2000, two weeks in January 2001 and four days in January 2002.

74 Mr Howlett spoke about the difficulty of adjusting the driver's seat although there was one straddle with a swivel seat which alleviated problems of twisting his spine from the pelvis to the neck, but it had problems of twisting him from the pelvis to the ankle. He stated the swivel seat was not in a fixed position and moved suddenly and without warning and could therefore easily twist his spine: the seat moved when driving the straddle around corners or when striking ruts or potholes. 75 Mr Howlett nominated the following matters as significant problems in the operation of the straddles: (a) the pedals faced 90 degrees to the way the cabin faced and the straddle had to be driven looking sideways. He stated that the straddles weighed 64 tonnes unladen and up to 100 tonnes laden; (b) when driving straddles, and in particular when depositing containers, it was necessary to adopt a twisted posture either to the right or left depending on the direction of travel. At the same time, he had to bend forward to see below the level of the cabin at all times, whilst having his legs and arms in front of him operating the controls; (c) the awkward body position required to operate the straddle was compounded by the heavily rutted and potholed roadways within the terminal which caused substantial jarring when driving in a twisted and bent forward position.

76 Mr Howlett said he first felt symptoms of neck and back pain shortly after commencing driving the straddles prior to the 1998 industrial dispute. In February 2000, as a result of neck and back pain symptoms caused by driving the straddles, he was certified as being only fit for light or alternative duties for a period of three months. He had two or three days off work in about June 2000 as a result of his ongoing neck and back problems and was also off work on 13 and 14 August 2000 for the same reason. He had seen his local doctor and had been referred to a specialist. He had also been referred to another doctor in relation to his workers compensation claim.

77 He agreed with all risks identified by Re-Start Consulting in its January 1998 report, namely: sustained neck rotation when driving and operating the straddles; awkward mechanical seat adjustment of cabin seats; prolonged shoulder elevation when driving straddles when steering wheel not adjusted; and, awkward reach postures to gain access to the radio and computer terminals. He disagreed with the report when it stated that operators were required to rotate their neck up to 70 degrees to the left when driving forward and 80 degrees to the right when driving aft, believing that the rotation was up to 130 to 140 degrees to both the left and right. He said this was due to the fact that vertical beams on the straddle cranes created a number of blind spots and drivers were therefore required to twist their entire torso in both directions before taking off and whilst driving to make sure that there were no obstacles in their path. In addition, he pointed out that since the 1998 enterprise agreement the operators were required to drive in excess of five hours a day having been rostered to drive a three and three-quarter hour shift followed by a three-quarter hour break and then a further three and a half hour shift.

78 He disagreed with the report's estimate that the average operator drove only 60 per cent of the time and was idle for the remaining 40 per cent of the shift. In his experience, he estimated that he drove for about 95 per cent of the time whilst he was in the straddle. In his view, this was common to the other drivers in the teams he worked with: he was invariably rostered to work in ship gangs. Further, he thought that drivers spent a minimum of 80 per cent of their time driving to the left and only 15 to 20 per cent of their time driving in the right direction. He did not think that the periods of neck rotation were intermittent or broken up with periods of rest. Drivers had been instructed to drive with "the cabin leading" (that is, looking to the side) because visibility was far better. Mr Howlett did not agree that a driver rotated his head 70 degrees to the left and flexed the neck forward to look downwards when moving off. He thought the rotation requirement was closer to 130 to 140 degrees, due to the necessity to see up to 180 degrees in the opposite direction. He also disagreed that there were no forced or twisting movements of the spine when sitting and driving the straddle. In his view, driving constantly required a driver to twist the neck and spine due to the poor visibility created by the vertical beam. He also thought there were risks associated with vibration, noise and jerking especially because of the poor bitumen surface of the terminal. 79 Mr Howlett confirmed that drivers were given instructions in stretch exercises in late 2001 for the first time, and that he had received the "light exercise manual of the straddle carrier operators" by post in approximately late 2001.

80 In late November 2000, Dr Eagleton (a general surgeon) provided a medical report to the defendant's workers compensation insurer regarding Mr Howlett. He recorded the employment history given to him by Mr Howlett as being lately driving straddles for three and three-quarter hours without a break then having a three-quarter hour break followed by another three and a half hours driving without a break. He drove while seated and was required to twist repeatedly to the right or left, more so to the left side because he had to frequently lean to the left because he had to look down at the ground. After doing this work for some time he developed pain and stiffness in the left side of his neck, together with pain in the left thoracic area and left lumbar area. The pain troubled him "particularly when he was pushing himself in order to obtain bonus payments for example". Symptoms were tolerated for many months in order to continue the level of remuneration and he took simple pain killers obtained from first aid when necessary. He had seen his local general practitioner and had been referred to a rehabilitation specialist. As a result of this referral he had been put off work and there was some improvement of the symptoms, and after three months he was pain free. When Mr Howlett returned to work the symptoms flared again and he took further time off work. On return to work this time, he reduced his work rate on the straddle and found that by doing so he was able to avoid the symptoms. Mr Howlett had not been driving the straddles recently and had no significant symptoms for some months.

81 Dr Eagleton noted that the present complaints were that Mr Howlett felt occasional discomfort near the spine but these were not restricting any activities except those of driving the straddle truck. Dr Eagleton was of the opinion that Mr Howlett developed musculo-ligamentous pain in the thoracic and lumbar areas of his back on the left side which seemed to be "clearly related to his duties involved in driving a straddle truck". Dr Eagleton believed that the diagnosis was consistent with the history provided by Mr Howlett. While he was fit for a wide range of duties, it was likely that the symptoms would recur if he resumed driving the straddle truck with the intensity with which he drove in late 1999 and early 2000. Mr Howlett's description of the driving position and the driver's duties led Dr Eagleton to believe that the situation for the driver was "ergonomically unsound".

82 Dr Eagleton was of the opinion that, while Mr Howlett was not incapacitated for most duties, it would be wise for him to avoid driving the straddle for other than short periods. He regarded his period of incapacity as being approximately between February 2000 and May 2000. He could see no reason why Mr Howlett would not make a complete recovery but noted the possibility that a return to the duties that caused the problems were likely to bring about a recurrence. There was no evidence of any pre-existing or underlying disorder that might have been aggravated, and operative treatment was not indicated and would not be required in the future. Dr Eagleton expressed the opinion that Mr Howlett's employment had been a substantial contributing factor to his condition. There was no permanent impairment of his back.

83 Dr Eagleton gave oral evidence and stated that he watched the video showing the performance of driving duties by a straddle operator and had not changed his opinion in relation to Mr Howlett. Dr Eagleton had practised medicine since 1967 and had commenced to specialise as a surgeon in 1979. Since 1982, he had frequently advised in medico-legal work whilst continuing practising as a surgeon. Approximately 75 per cent of his medico-legal work was for insurance companies. He stated that the position of the driver was ergonomically unsound because of the constant leaning from side to side and looking downwards, sometimes turning around to look backwards.

84 In cross-examination, Dr Eagleton said he had based his opinion on what he had been told by Mr Howlett that the driving was without a break during the shift and that work would be done each week. If the work was done over three or four days that would still be enough to produce the conditions complained of. Dr Eagleton agreed that he had to rely on the history given by the patient because, on physical examination, there was nothing else to go on. He agreed that the age and general health of a driver was relevant: a fit person was less likely to succumb to these types of injuries. He agreed that the 45 minute break gave some relief, but that another 20 minutes off in the first shift would also be of help. Breaking up the work reduced the risk of harm and the more broken up the work the better. Dr Eagleton expressed the view that, if Mr Howlett had returned to work driving the straddles at the same or greater pace than when he had complained of back symptoms, it was possible to do the work if he had strength in his back by a structured programme of back exercises, as an example.

85 Dr Eagleton was unable to accept the proposition that a further 20 minute break, being practical about the requirements of work and the requirements of a driver's body, would adequately meet the concerns identified. He said that the situation would have to be judged by a trial of the work and it was not so simple to stipulate that a break once, twice or three times a day taken off was sufficient or insufficient. It depended upon the nature of the job, how much physical work was involved, how much movement was involved and other matters. Only with experience in a particular field of employment could it be worked out how much time was sufficient time off. Small breaks may be helpful but small breaks of 15 seconds or so would not be - a few minutes would be helpful. It would be beneficial if there were short breaks in driving where the driver could relax even for a few seconds, stretch his neck, stand up and sit down again. Dr Eagleton regarded Mr Howlett, at 40 years of age, as being in a reasonable state of fitness.

86 Dr Bodel supplied a medical report to Mr Bilston of the defendant in August 2001 in relation to Mr Howlett. Mr Bilston had referred Mr Howlett, and a video tape demonstrating how straddle machines were driven was supplied to Dr Bodel. He had been asked to make a medical assessment of Mr Howlett's condition and report to the defendant in that regard.

87 Mr Howlett had provided a work history and had stated that he began to develop left sided neck and shoulder girdle pain soon after starting the work of driving straddle cranes. He associated this pain with the nature and conditions of his work in general and reported to the doctor that he was one of the quickest drivers on the waterfront. Although the pick up rate of containers varied from shift to shift depending on the work being done, he frequently moved in excess of 200 containers each shift and in fact on the previous day's shift had moved 280 containers. The maximum he had lifted was over 340 containers. On the roster he worked he was able to avail himself of significant overtime and he frequently worked six or seven weeks including weekends with only one or two days off. He had seen his local doctor because of his symptoms and had been referred to Dr Manohar. He had three months off work. Physiotherapy did not help his condition but rest "did improve matters".

88 After taking rests from the work, Mr Howlett felt he had improved and he resumed his duties. He then had a return of intermittent symptoms and these had persisted. He had a further 13 days off in early 2001 and had been provided with a corset which he wore sometimes at night which helped a little. He gained some relief from his symptoms with rest and analgesic medication. Mr Howlett undertook an exercise programme and did stretching during the course of his day's work. He occasionally took Panadeine Forte tablets at night, Panadol from time to time and used Dencorub. He found a hot shower was also helpful.

89 Dr Bodel reported that Mr Howlett continued to remain in the care of his local doctor and that he continued to have low back and upper back pain and pain around the left shoulder. The pain radiated into the left buttock. Mr Howlett had reported no other accidents or injuries of any significance and had in the past enjoyed playing golf but had not been able to continue with this sport or waterskiing - a sport in which he had competed in the Bridge to Bridge race on a number of occasions. While he was now able to drive a speedboat he could not ski and driving the boat aggravated his symptoms as well. He could surf and swim and found those exercises helpful. Mr Howlett reported that a major aggravating factor appeared to be the irregular surface on which he drove the straddle. Dr Bodel noted on the video tape that there was a lot of jarring to the operator when driving the machine, particularly when it was loaded with a container.

90 Dr Bodel expressed the opinion that Mr Howlett's symptoms had arisen as a result of the nature and conditions of his work driving a straddle and that, with some modifications to his work, he should be able to cope much better. He was of the view that the patient's complaints were quite genuine and that the ongoing disability related to his work. He said that the patient had developed back and interscapular pain as a result of the nature and conditions of his work driving the straddle and, on clinical testing, he had genuine pathology in the spine. Dr Bodel encouraged continued exercise to strengthen the area in order to minimise the symptoms. He also said that there was a potential for some further improvement with modified work and better rotation of the workload so that he was not driving the straddle machines for such prolonged periods without a break. This would be helpful. Complete resolution of the symptoms was still a possibility.

91 Dr Manohar provided a report in October 2001 to solicitors acting for the prosecutor. Mr Howlett had been referred by Dr Sago and had been assessed on 1 March 2000 presenting with neck ache and back ache problems. Mr Howlett described the work he had been doing on the straddles for 18 months involving a lot of overtime working four out of five weekends and working long hours. The work involved looking out of the cabin, leaning and rotating his trunk. He had developed neck and shoulder pain which arose especially when he returned to work after holidays or after constant driving for more than an hour and a half. He had no similar symptoms or injuries prior to the current pain. He was otherwise fit and healthy. Mr Howlett was reviewed on 6 March 2000 and was advised to undertake physiotherapy for 10 days. He was seen again on 19 March 2000 and reported that he was well and his pain had decreased. He had last worked on 23 February 2000. Following an examination, Dr Manohar recommended a return to work "to see how he coped". He had not been seen since that date. The doctor expressed the opinion that Mr Howlett's injury could reasonably be attributed to the nature and conditions of his work as they were described to the doctor.

92 In oral evidence, Mr Howlett said that in late 2000 he stopped driving straddles with his usual gang as the company had asked him to train gangs on the refrigerated containers. This work was done Monday to Friday for a period of two months, although he drove straddles on Saturday and Sunday as overtime days. During this period there were no significant symptoms: they had diminished and he was not so sore. After being off work for three months on workers compensation he returned to driving straddles but the symptoms returned and continued. He explained that the figures he had given Dr Bodel for container movements were for the whole gang and involved three straddle drivers. Mr Howlett confirmed that when he returned to work after being off for three months on workers compensation, his doctor had asked the defendant for alternative work rather than straddle driving and to have the work broken up a little.

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.

94 Dr Bodel gave oral evidence. He was an orthopaedic surgeon who had completed his primary degree in 1974 and had been in private practice since 1982. Since 1982 he had also been involved in a medico-legal practice and about 90 per cent of his referrals were from insurance companies. He had been asked to see a number of employees who worked at the defendant's Pt Botany terminal and had completed a number of reports in relation to them.

95 After again viewing the video, Dr Bodel said that generally anybody, at any age, should not do that work for an excessive amount of time. The older a person became the less time they should do that type of activity. A person in their 20s or 30s, otherwise quite well, could probably cope with the activity without any difficulty for whatever length of time they wanted to do it but a prudent medical practitioner would say it was not a good thing to do every day, ad infinitum. In his clinical judgement the manoeuvre was not wise to do for too long. Dr Bodel spoke of the benefit of having a break from this work every two hours. The video showed that the body parts were being used towards their extreme range of motion. The body did not generally like to be used in its extreme range for any extended period of time - it was not good practice. It was better to use it within a restricted range of movements, not to the full extension or the full flexion of the joint: to use it in the middle range was advisable so it did not cause pathology in and around those joints.

96 In relation to full or 90 per cent head rotation, Dr Bodel said that normal rotation was 30 degrees over either shoulder and most people could accommodate that except the elderly who were much more restricted. What was acceptable depended somewhat on the person's age and the existence of any pre-existing pathology in their neck. In relation to the driving of the straddle, Dr Bodel said it seemed most unnatural for people to be driving any sort of a vehicle side on to the direction of travel. It was more acceptable if the person driving a vehicle to face towards the direction they are driving. Dr Bodel identified the fact from the video that it appeared that even when work stopped the drivers sat in their seats. It was advisable for them to at least get up, stretch or change posture outside on the walkway behind the cabin. This would be of some value. In general, Dr Bodel said younger people who had no degenerative change may be able to tolerate this type of work but as people got older, with or without symptoms, with degenerative change they would not tolerate the same work.

97 In cross-examination, Dr Bodel confirmed that the duties of a straddle driver presented more risk to a person of an older age. It was difficult to put a precise age upon when the risk would increase from doing this work, but it was in the doctor's clinical experience that the age group of 40 onwards was when neck problems became a significant feature of their daily lives. Dr Bodel also accepted that a great deal depended upon the general physical fitness and health of the person. 98 The doctor said the posture of the driver was an excessive posture and it was not smart for anybody to do it for too long: an extreme posture of any part of the body for any protracted period of time was not smart and could lead to symptoms. It was not necessary to have a pre-existing symptom for this to eventuate. Dr Bodel said that from what he had seen of the work, the drivers were doing something extreme with their neck and back for the vast majority of the time. This included when they were driving with the cabin leading and they were sitting in that position for quite a lengthy period of time, depending on where and how much they had to drive.

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.

101 Mr Jason Crews was 30 years old when he gave his evidence. He had been employed on the Sydney waterfront as a waterside worker from about June or July 1997 and was based at Pt Botany. Initially, his duties involved driving trailers and fork lifts and at the time he commenced employment there were approximately two straddle cranes at Pt Botany. He received training on the operation of the straddle in early 1998 and that training lasted only for a few days.

102 Prior to the industrial dispute in April 1998, Mr Crews said he worked a different roster from the one that was now in place. On that roster there were three drivers for every two straddle cranes: as a result, in every shift there was one shift where he did not have to drive a straddle crane but performed alternative duties. Since the enterprise agreement of September 1998, a new system had been adopted whereby some employees had to drive straddle cranes for the duration of each and every shift. Under that system he had worked with a gang of six workers. On average, out of every five shifts he drove a straddle for two shifts and for the remaining three shifts he operated a portainer crane.

103 The driver's seat in the straddle was meant to be adjustable but the position of the adjustment mechanisms underneath the seat made it extremely difficulty to adjust the seat height. The back rest of the seat was adjustable but the degree of tilt was very minor.

104 Mr Crews said the operation of the straddle crane involved travelling to different points within the terminal complex for the purposes of picking up and depositing containers. He identified the following "significant problems" in operating the straddle: (a) operating the straddle required body placement in a twisted position. The foot operated pedals of the straddle were 90 degrees to the way the cabin faced: the steering wheel and pedals faced 12 o'clock and the straddle was driven at either 9 o'clock or 3 o'clock; (b) whilst driving, and particularly while depositing a container, it was necessary to adopt a twisted posture either to the right or left depending on the direction of travel. He was also required to bend forward to enable a view below the level of the cabin whilst at all times having his arms and legs in front of him operating the controls; (c) this twisted body posture was compounded by the fact that the roads within the terminal were very rutted and potholed so that while the straddle was in motion there was substantial jarring.

105 Around May 2000, a new seat was introduced for trial on straddle No 20 at the terminal and Mr Crews operated the straddle during the trial period. The seat was a swivel seat but it did not help as it did not function to relieve the cramped position he adopted as a driver in order to operate the straddle.

106 At around the end of 1999 and the beginning of 2000, Mr Crews 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 spasms of the neck muscles. Initially he did not seek medical advice in relation to these problems but attempted self treatment by swimming.

107 In approximately July 2001, he suffered a whiplash injury to the neck and back during the course of performing his duties at the terminal. He was seated in the cabin of a stationary trailer which was struck heavily from behind by a straddle crane. Mr Crews consulted his general practitioner, Dr McDonald, in relation to the workplace injuries and consequently had approximately four weeks off work for which he was paid compensation. As at February 2002, he was still undertaking chiropractic treatment in relation to that injury.

108 When he returned to work he found that the twisted body position required for driving the straddle crane "exacerbated the whiplash pain". On a number of occasions he requested alternative employment duties from the defendant but was advised by the labour manager that if he could not drive the straddle crane then his only alternative was to go back on workers compensation. Mr Crews had recently had a further one week off on compensation resulting from an "exacerbation" of his whiplash injuries driving the straddle crane.

109 Mr Crews had received the manual entitled "Light exercise manual for straddle carrier operators" in approximately January 2001. Although the employer did not provide any previous information, training or instructions regarding the material in the manual, Mr Crews said that if he felt sore at work then he performed his own exercises.

110 Like the other drivers who had given evidence, Mr Crews accepted the four risks which had been identified in the January 1998 Re-Start Consulting risk assessment report. He thought the neck rotation required to drive forward was more commonly 90 degrees and up to 140 degrees when checking visibility, and that the usual driving position when driving aft was up to a 90 degree neck rotation. He said, from his own experience, operators of the straddle crane drove the crane for approximately 80 per cent of their time with only approximately 20 per cent being spent idle. He generally agreed that operators spent three-quarters of their time driving forward with the neck rotated to the left. He said that operators only rested when the yard was quiet or if a crane had broken down and that did not happen very often. Time spent by a driver with the neck rotated to the left or right was not intermittent or broken up with periods of rests. He agreed that operators were instructed to rotate their head 70 degrees to the left and flex the neck forward to look downwards towards the wheels of the crane to ensure that they had "the all clear". He said there were forceful or twisting movements of the spine when operating the straddle. Where there was poor visibility, it was necessary to twist the entire torso up to 180 degrees when moving off and driving generally. Other risks were jerking due to the poor and patched surface of the tarmac at the terminal where the driving surface was uneven and potholed. He identified approximately six occasions when the chains used to lift and hold the load carried by the straddle had broken because the driving surface was so uneven that the chains snapped. The uneven surface caused the crane to jerk and bounce thus stretching the tension of the chains.

111 On 5 June 2000, Re-Start Consulting provided a workplace assessment report in relation to Mr Crews for the defendant's workers compensation insurer. A representative of the defendant was forwarded a copy of the report. This report referred to the whiplash injuries suffered by Mr Crews in February 2000. It noted that, when he returned to duties, after one day of working on the straddle crane he reported an increase in his neck pain. Mr Crews told the consultant physiotherapist who prepared the report that he occasionally worked on straddle duties but when rostered for that work he often called in sick in order to avoid it. Mr Crews stated that his pain was only exacerbated upon operating the straddle crane which he was required to do approximately two to three times a month.

112 Mr Crews described for the consultant physiotherapist the work he performed and the shift hours he worked when driving straddles. He said that while in the straddle the work occurred at a quite constant pace. Various aspects of the work required him to constantly rotate and flex his neck. The consultant recommended that, in an effort to reduce muscle strain related to repetitive movements, regular breaks should be taken to minimise the strain. It was recommended to Mr Crews that he stand from his seated posture every 30 minutes and assume the standing posture. Regular standing breaks would allow Mr Crews to maintain a neutral posture with his neck and minimise a build up of tensions associated with repetitive tasks. A number of neck stretches and exercises were demonstrated to Mr Crews to aid in reducing neck strain. They were to be performed on a regular basis - at least every 30 minutes and could be done in a seated or standing position. The consultant also recommended consideration of a review of the seating in order to implement a swivel action seat which would reduce the operator's need to rotate the neck as the chair would rotate, and also the use of mirrors in order to alter the operator's view of the spreaders and reduce the requirement to rotate and flex in order to view the spreaders below.

113 In August 2001, Dr Bodel supplied the defendant with a medical report in relation to Mr Crews. Mr Crews had given Dr Bodel a history stating that he began to develop a gradual onset of neck and upper right shoulder girdle pain soon after starting work on the straddles. This was associated by Mr Crews with the extreme posture of the neck and upper body which was required in driving the straddle. The symptoms were intermittent and he reported the problem at work. He later sought treatment from Dr McDonald and had a little physiotherapy and some stretching which was helpful, as was massage.

114 Mr Crews then spoke of the accident at work where his trailer was hit by a straddle with him being thrown around inside the trailer which further aggravated his neck and shoulder girdle pain. He was off work for a few weeks. He was later referred to a specialist in Randwick (probably Dr Loefler). There was chiropractic treatment but no surgery was necessary. His local doctor recommended a swimming programme which developed over time and had resulted in an improvement. By August 2001 Mr Crews was driving straddles fulltime although previously he had been driving straddles on occasions, and also portainers. He said that after he complained of the neck pain, the labour manager at the terminal had put him on straddle work fulltime. Mr Crews said that he was otherwise quite well and he had no other accidents or injuries involving his neck or upper back.

115 Dr Bodel expressed the opinion that Mr Crews suffered from neck pain. There was no permanent damage arising from the workplace accident and the long term prognosis was quite reasonable. Mr Crews was encouraged to continue with his exercises to strengthen the neck and shoulder girdle area and Dr Bodel expressed the view that he should be able to continue with his driving activities including the driving of straddle cranes, if some modification was made to the work. Mr Crews told the doctor that he was much more comfortable driving a portainer than the straddle because the driving position was different. Dr Bodel said that based on his clinical presentation Mr Crews was left with ongoing discomfort in the neck which was work related.

116 Dr Bodel was cross-examined in relation to his report on Mr Crews. He accepted Mr Crews' statement that there were symptoms prior to the workplace accident. Dr Bodel accepted that the present problems which Mr Crews spoke of were likely to be directly related to the workplace accident.

117 In his oral evidence, Mr Crews said that he had no neck pain before he commenced work at Pt Botany. He had been involved in sport including activities in a surf club, sailing, played golf, squash, beach sports and boxing. When he was injured at work he took about five weeks off in 2000. When he returned he sought light duties but the labour manager told him that there were no light duties. After the September 1998 enterprise agreement, Mr Crews said that sometimes he had to drive for the whole shift because that was specified in the agreement and he had seen other employees drive the whole shift: he knew this because he was working with them.

118 In relation to working on the straddle cranes he had reported to first aid about such pain but did not do so on every occasion. Sometimes he just used an icepack and he regarded it as a waste of time to record that in the First Aid Book. In any event, nothing was done when an entry was made in the First Aid Book. The icepacks were available in the first aid refrigerator.

119 He had tried to move the back rest in the cabin but he could not do it. In his experience the seats were not in working order in the straddles.

120 He had not been told of Dr Bodel's opinion in relation to his examination by anyone from the defendant nor had he been shown a copy of the Re-Start report of 5 June 2000 relating to him. He had not been told by anyone from the defendant to take small breaks to relieve the strain or to stand to relieve the sitting posture. The first time the employer had mentioned exercise at work was in January 2001.

121 In cross-examination, Mr Crews said that in about September 1999 he began to feel pain after driving the straddles but he made no report of it but treated it himself: there was no pain with his other work. He thought he had made a report to first aid and had attended first aid in 1999.

122 He had driven portainers a lot in 1999 without problems. He had some lower back pain with his back being a bit sore while driving a portainer because the seats were not adjustable and this had been reported to first aid. He had started driving the straddles in 1998 or 1999 but had experienced no trouble until late 1999. The First Aid Book recorded on 24 March 1999 that he had experienced lower back pain driving the straddle and that the pain persisted. That was the only entry in 1999 relating to pain during the straddle driving but it had not been referred to in his statement. There were a number of other entries in the First Aid Book relating to Mr Crews in 1999. In January 2000, Mr Crews had suffered a whiplash injury and thereafter there were a number of entries in the First Aid Book recording continuing and persisting neck pain which Mr Crews said could have been related to the whiplash injury. After April 2000 there were a number of entries dealing with pain from driving straddles. He had filed a workers compensation claim and a "Motor Traffic Compensation Act claim" in relation to his whiplash. Mr Crews was shown his claim form for workers compensation relating to the whiplash which said his neck and back had been normal before the accident. Mr Crews said he had one incident in March 1999 before that. He had been active in sporting activities until the injury in January 2000.

123 His current employment with the defendant was mainly portainer driving: it occupied 90 per cent of his time although he had just recently driven a straddle. He had frequently done other work than straddle driving. It was possible to start a roster being allocated one sort of work but later performing work on the straddles.

124 Mr Crews said that the reports he made to first aid were not always recorded but he kept attending first aid although nothing was done except sometimes an icepack was applied. He thought this occurred during 2000-2001. He accepted that most of his problems in 2000 came from the whiplash injury. In relation to driving straddles, Mr Crews said that the team was moving 30 containers per hour. In 1999 they were moving a few less than 25 per hour. In the last six months or so he was moving 217 containers per shift. A bonus could be earned, sometimes up to $150 per shift and sometimes more.

125 Mr Bruce Hargraves was 35 years old when he provided a statement for the purposes of these proceedings in January 2002. He had commenced work as a waterside worker on a casual basis in September 1997 at Darling Harbour but had predominantly worked at Pt Botany. He became a permanent employee in December 1998 and had performed duties since then solely at Pt Botany. Prior to December 2001 he was classified as a forklift driver even though his employment duties were those of a straddle driver. A straddle driver was paid approximately $11 per shift more than forklift drivers.

126 Straddle cranes had been introduced at the workplace soon after he commenced employment on the waterfront in September 1997. He was trained to drive the straddle in a course that extended over two weeks, where the second week was spent solo driving the straddle with an assessment being conducted at the end of the week. For approximately six months after obtaining permanency, Mr Hargraves said that on average he worked four shifts per week on the straddles and another shift performing duties as a team leader on vessels.

127 Mr Hargraves spoke of the fixed cabin arrangement for the straddle cranes and noted that the seat could not be adjusted by the operator because the adjustment levers were located under the driver's seat and could only be adjusted with spanners. During the course of some shifts he had requested maintenance mechanics to actually attend the cabin on the straddle in which he was working in order adjust the seat height by using spanners. It was noted that the back rest of the seat could also be adjusted but because he was 6 foot 2 inches in height he had adjusted the driver's seat so that it rested against the back window in order to give him adequate leg room. As a result, he could not tilt the rear of the seat any further.

128 Mr Hargraves described the problems of driving straddles as including attempting to drive a car whilst looking through the side window. While driving the straddles, it was necessary to adopt a twisted posture either to the right or left depending on the direction of travel and also to bend forward to enable the operator to look below the level of the cabin all the time whilst his arms and legs were in front of him operating the controls. He said the twisting and the driving posture were compounded by the fact that the roadways at the terminal were rutted and potholed and there was substantial jarring while driving in a twisted and bent forward position.

129 Mr Hargraves said that prior to commencing work on the waterside his state of health was good: he was playing social tennis and squash and had played rugby league, soccer, hockey, golf and cricket. He played rugby league until he was 26 and continued to play golf until December 2000 but stopped due to neck pain caused by driving straddles.

130 Prior to commencing work as a waterside worker he underwent a medical examination conducted by a general practitioner organised by his employer. The recruitment process required him to attend the New South Wales Fire Brigades training complex to undergo a fitness and skills test: he understood he had passed the medical examination, fitness and skills tests.

131 In 1996 he had been diagnosed with a congenital fused vertebrae at the C3/4 level but he did not have any time off work at that stage or any continuing symptoms. In around early 1999, he said he began experiencing neck pain after driving straddles for long periods. The symptoms increased in severity and consistency over time until they became severe around March 1999. At that time, the pain also extended down into his right arm which is the arm he used to drive the straddle.

132 Acting on his doctor's advice, he requested the defendant to provide alternative rotational duties. He approached Mr Bilston (the terminal manager), Mr Graham Moore (operations manager), Mr Adam Buckingham (labour manager) and allocators in relation to training in other duties mainly clerical type duties. Mr Hargraves recalled a conversation with Mr Buckingham in his office at Pt Botany in late 1999 or early 2000. In that conversation, Mr Hargraves asked if there was any chance he could get training in clerical duties as he was looking for a rotation in duties to relieve the problem with his neck. He told Mr Buckingham he was getting sore from driving the straddles and Mr Buckingham said he would look into it. Mr Hargraves stated that Mr Buckingham did not get back to him about this query and he had further conversations with Mr Buckingham, but no rotation in duties was ever provided to him.

133 In May 2000, Mr Hargraves was receiving physiotherapy treatment in an attempt to deal with the pain he was suffering from driving straddles. On 23 May 2000, he consulted his general practitioner (Dr Limanto) who provided him with a medical certificate. Dr Limanto said that on examination it appeared that Mr Hargraves was suffering repetitive ligament strain in the neck, right shoulder and right elbow and that the cause of the injury stated by the worker was driving continuously for seven hours without any breaks in a small confined space. The doctor had spoken to an employee of the defendant but had been told there were no alternative duties or clerical duties available for Mr Hargraves. That person was the defendant's claims officer.

134 Mr Hargraves then recounted that on the same day as consulting his doctor he attended at the Pt Botany terminal and saw Mr Bilston with Mr Moore being present. Mr Hargraves handed Mr Bilston the certificate and return to work form and told him that he had been to a doctor in relation to driving straddles and that the doctor had stipulated that he was to have a 15 minute break every two hours while driving straddles. It was his understanding that the company would not provide light duties or any extra breaks and he said to Mr Bilston words to the effect that he knew the company would not "cop this". Mr Bilston noted that there was a certificate for two weeks and then consulted the roster. He told Mr Hargraves that he could spend a week as a relief team leader and another week as an escort driver around the terminal. When asked by Mr Bilston if he would be happy with that arrangement, Mr Hargraves told him that work would "be fine". During this conversation, Mr Hargraves told Mr Bilston that he was undertaking physiotherapy and he believed that the problem was only muscle and tissue damage and a two week break from the machine would help his condition.

135 When Mr Hargraves attended work on 24 May 2000, he was told to report to the labour manager before commencing duties. The labour manager, Mr Wain, told Mr Hargraves that he could not start work with that certificate and that Mr Bilston was wrong to give him alternative duties, and should not have done so before discussing it with Mr Wain. Mr Wain pointed out that the certificate said that Mr Hargraves needed a break for 15 minutes every two hours, when the enterprise agreement only allowed one break. He told Mr Hargraves that, unless he had the certificate changed, he could not come back to work as there were no light duties. When Mr Hargraves indicated that was not possible, he was told by Mr Wain that he was on workers compensation until he was fit enough to come back to work. There was apparently some discussion between Mr Wain and the claims officer, and Mr Hargraves was told by the claims officer that Mr Wain would not agree to any light duties. Mr Hargraves then left the terminal and spent the next two weeks on workers compensation and did not work at all.

136 On 6 June 2000, Mr Hargraves received another medical certificate from his doctor for the same injury with the same cause specified as the earlier certificate. The "return to work" part of this form carried a notation apparently in the doctor's handwriting that he had spoken with the defendant's claims officer and had been told that there were no alternative duties or clerical duties available for Mr Hargraves. Mr Hargraves was required to take a further two weeks off work on workers compensation. Mr Hargraves stated that after four weeks off work, although he was not fully fit, he had to return to work as the weekly compensation he was being paid was the award rate and not the usual salary rate that he received.

137 As a result of injuries arising from driving straddles, Mr Hargraves stated that he required further time off work on workers compensation. His injuries continued in the neck and shoulder region and in the lower thoracic spinal area. He had received a further medical certificate on 15 May 2001 in relation to these injuries.

138 Mr Hargraves had been referred to Dr Loefler, an orthopaedic specialist, in May 2001 in relation to his neck pain. Dr Loefler recorded a history of Mr Hargraves as a 30 year old stevedore engaged in driving a large crane lifting containers and working long shifts. The work involved long periods of twisting his neck to the right or left as he watched computers, trucks and containers. The patient had told him that his work caused increasing neck pain and he found it difficult to continue working long hours. Although sought, the employer was unable to offer alternate duties. Apart from pain to the lower cervical region, a feeling of stiffness and pressure in his neck and occasional pain radiating down his right arm, Mr Hargraves was said to be otherwise well. He was on regular Celebrex and occasional Panadeine Forte. He had originally experienced pain in 1999. There was regular physiotherapy and a period of four weeks' absence and then a return to normal duties. There was a further episode of neck pain in October 2000 and a further week off work. On return to work there was continuing neck pain. There were no other accidents or injuries recorded involving the patient's cervical spine.

139 On investigation, Dr Loefler found a congenital fusion of C3/4. A MRI had demonstrated a disc protrusion at C5/6 which was of moderate size: the scan also demonstrated a small disc bulge at C4/5 and also demonstrated the fusion at C3/4. Dr Loefler did not advise any form of operative intervention treatment at that stage but suggested that Mr Hargraves change his job. The doctor expressed the opinion that he had no doubt that Mr Hargraves' work aggravated his neck pain. The driving of the crane required maintaining a twisted posture of his neck for long periods and this exacerbated his symptoms. Dr Loefler was not certain whether his neck pain was related to his cervical musculature or to the prolapsed disc as demonstrated on the MRI but either condition could be aggravated by working in an environment requiring an abnormal posture for long periods. Mr Hargraves' symptoms were likely to settle if he was provided with work which did not require the same stress and strain on his neck. It was possible that his symptoms would fail to settle and he would develop increasing problems at C5/6, ultimately requiring a discectomy and fusion. It was not possible to say at this stage whether surgery was necessary. Dr Loefler recommended Mr Hargraves be re-trained for a job involving light physical or sedentary work and advised against heavy physical work or jobs involving continuous bending or twisting of his neck. He assessed Mr Hargraves as having a permanent impairment of his neck of 20 per cent. He believed that the congenital fusion may be contributing to his symptoms and he assessed that half of the permanent impairment was due to injuries received at work and half to the pre-existing condition.

140 On 1 August 2001, at the request of his employer, Mr Hargraves was seen by Dr Bodel. In or about June 2000, liability for his workers compensation was accepted. Mr Hargraves continued physiotherapy treatment with two or three physiotherapy consultations per week which were paid for by his employer's workers compensation insurer. In mid-May 2001, the insurer denied liability for his injury and refused to pay ongoing medical expenses including physiotherapy. Mr Hargraves continued with physiotherapy treatment. The physiotherapy was provided by the company free of charge to employees including employees who drove straddles.

141 Since returning to work and up until late 2001, Mr Hargraves' duties had been solely driving straddles. At that time, he had been rostered to perform quarantine clerical duties during day shift periods only. That work covered about 12 shifts. He had requested his employer, on many occasions, for alternative employment. He said he was capable of performing the duties of a team leader and he had asked for clerical duties. Clerical duties were performed by a class of employees known as "supplementaries".

142 Mr Hargraves said that prior to the most recent enterprise agreement he had to operate straddle cranes for the entirety of each shift he worked. During the course of the shift, the first run was for three and three-quarter hours after which he had a 45 minute meal break. The second run of the shift lasted for 3.5 hours. He said he often found he could not complete the second run due to severe neck pain and as a result he reported to the first aid officer.

143 In late 2001, a new enterprise agreement commenced and provided for relief drivers. Mr Hargraves stated that he found that, although the company provided these relief drivers, in his view, the duration of time driving the machines was still excessive.

144 In around May 2000, a new seat was introduced for trial in the straddle cranes. Mr Hargraves used the trial seat but found it rotated, which allowed rotation of the driver's torso. However, the driver's feet were still in a static position on the operating pedals and the action of rotating the seat twisted the upper body even more.

145 Mr Hargraves relied on work orders and his diary entries to confirm that: (a) rotation for straddle drivers within a gang was available; (b) rotation for straddle drivers throughout the terminal was available; (c) he had made further requests for training in other areas.

146 As in the case of other drivers, Mr Hargraves commented on the January 1998 risk assessment conducted by Re-Start Consulting and accepted the presence of the four risks that had been identified in that report. Mr Hargraves said that in his experience it was more common for an operator to rotate the neck for up to and past 90 degrees in both directions and it was rare to have the neck in a neutral position due to the design of the machine and the nature of the work. In his experience, the percentage of time driving or idle varied constantly depending on the nature of the work being performed. When working in a ship gang, if there was any significant breakdown or waiting for a vessel, all straddle drivers were transferred to the yard. In the yard, drivers attended to trucks or yard consoles to move trucks around and this could vary from between about one kilometre away or the adjoining position in the terminal. On other occasions, the work may be closer to 80 per cent driving and 20 per cent idle.

147 In relation to hoisting or lowering a load, Mr Hargraves said that in his experience the driver looked either down at the location point or at the computer screen which indicated the job. This posture when looking down meant that the upper body was leaning to the left or the right to enable the driver to look down and the neck was in a rotated position. The posture required when looking at the computer was slightly up and to the left. When loading trucks, the degree of difficulty was greater due to the requirement to land on twist locks and the need to constantly observe the speed of the spreader below: 40 foot containers exacerbated this problem.

148 When waiting to move off, the driver still rotated his neck to the left or right depending on which way the container needed to be placed. The driver had to rotate his neck in order to drive the straddle. He said it was rare that the neck would be in a neutral position when waiting to move off because a driver usually had to be looking to either the left or right to know when he was required to move.

149 Mr Hargraves also observed that when driving a crane, operators commonly experienced severe jerking, vibration and bouncing due to the effect of ruts, potholes and uneven surfaces on the driving part of the terminal.

150 In his experience, it was virtually impossible to adjust the seat in any other direction than backwards and forwards. If Mr Hargraves required the seat to be adjusted, he called for assistance from the garage and tools were used to make the adjustment. The back rest was impossible to manoeuvre as there was only one inch between the cabin and the seat itself.

151 Mr Hargraves also commented on prolonged shoulder elevation when driving straddles as the steering wheel was not adjusted. He pointed out that the angle of the steering wheel could not be adjusted which created considerable difficulty when attempting to position the steering wheel in a comfortable way. The steering wheel was not only too far away but its angle also caused considerable discomfort.

152 In his oral evidence, Mr Hargraves said that it was known that there was a level of production to be achieved at the terminal and that management raised it from time to time by showing drivers a performance graph indicating who achieved and who did not.

153 Mr Hargraves had a number of notes in his diary about work outside the straddles that was made available to others, including supplementaries, but which was not made available to him. He said he was able to perform all the work performed by the work where required persons and that was work mainly performed on the gangway under the crane. He also spoke of the practice of urinating off the platform of the straddle rather than leaving the straddle crane. Mr Hargraves spoke at length about the various representations and conversations he had about the availability of other work and how they had essentially come to nothing. He made numerous notes about where other work was available and actually performed by other employees, but never made available to him.

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.

155 In cross-examination, Mr Hargraves said it was common practice for the drivers to urinate from the machines. The drivers had been told not to leave the machine but a driver could leave the machine to go to the toilet without telling anyone. The first entry in the First Aid Book was made in May 1999 about neck problems from driving the straddles. A June 1999 entry showed a complaint of twisting his neck while straddle driving and being given Aspro. It was put to Mr Hargraves that this was not severe pain, to which he said he did not know but one Aspro or ice pack was good enough to give relief. In other entries in the First Aid Book there was a report without any treatment being recorded.

156 Mr Hargraves conceded that he had other business interests in a hotel and that he had worked there sometimes. He had last worked there in November 2000 when giving his evidence in February 2002. He had no trouble bending, standing for long periods or lifting at the hotel. It was a family hotel and he was a director of a family company. Two of his brothers ran the hotel and he assisted in the bar and sometimes in the cellar. He did get some discomfort when he did some tasks.

157 Simon Euers was 33 years old at the time of making his statement for the purposes of these proceedings and had been employed since 1985 by Patrick Stevedores Holdings Pty Ltd. He was a team leader working at Pt Botany who rarely drove the straddle cranes, estimating that the driving took place every six to twelve months or as operationally required. Since early 1999 he had been a member of the Occupational Health and Safety Committee. In his capacity as team leader he supervised straddle crane operators. He had started work at the Pt Botany container terminal in 1996.

158 Mr Euers said the first straddle cranes were introduced at Pt Botany towards the end of 1997. It was about that time he was asked to undertake a two week training programme on the cranes. In the second week of training he was required to operate the straddle crane on his own but with a workplace trainer available.

159 Mr Euers was told to drive by twisting the trunk of his body and then leaning over to the left when driving (cabin leading) in container stacks and to watch the sponson which was the buffer in front of the wheel of the straddle directly below the cabin.

160 From late 1997 until April 1998 when the industrial dispute occurred, Mr Euers operated the straddle crane on an irregular basis. He said this was not because of any formal rotation but because of the phased introduction of the straddle crane over the whole terminal and the requirement by the employer to train as many operators as possible. Within the shift there was an arrangement for three men to two machines. This resulted in an informal rotation of work.

161 Mr Euers said he was unaware that the seats in the cabin of the straddles were adjustable for height and for the driver's weight or that the back of the seat had tilt adjustment. He did not become aware of this until after he suffered an injury on the straddle cranes in early 1999. In any event, he said the adjustments were ineffective because of the way the straddle crane had to be operated. To safely drive the straddle or to drop or pickup up containers it was necessary to twist his neck and trunk: it was necessary to lean over whilst in a twisted position. Mr Euers said that up to 80 per cent of the time was spent driving cabin first, that is, the cabin was at the front of the straddle. Although the vehicle could be driven in the other direction there were too many blind spots and the operation was more dangerous. This resulted in most of the time his body and neck being twisted and flexed in the one direction.

162 After the dispute concluded a new enterprise agreement commenced in September 1998. A new system of straddle operations was introduced with an increase from 7.4 hour shifts to 8 hour shifts, the combining of two smaller meal breaks into one meal break of 45 minutes, and there was no rotation of work at all with each operator being obliged to operate the straddle all day every day.

163 Full introduction of the straddles continued after the September 1998 enterprise agreement and it was only in some areas that informal job rotation remained. Within six months the straddles had been introduced to the whole terminal and informal job rotation disappeared.

164 In or about June 1999, Mr Euers recalled that Patrick's issued a two page document to drivers providing some instruction as to the operation of the seat and steering wheel adjustment in the cabin. The adjustments either did not work properly or were at such an angle that they were almost impossible to move. He was aware that in May 2000 a new seat had been installed in one of the straddles on a trial basis but he had not seen the seat installed or driven that straddle.

165 Very shortly after he started operating the straddle, Mr Euers started to notice symptoms in his neck and shoulders. Over time he developed pain in his lower back. He made entries in the defendant's First Aid Book and often spoke to the labour manager, Mr Buckingham, about back pain from driving the straddles and asked if he could be used in other areas. Mr Buckingham told him to make sure his health was alright and to see a doctor and that there was a possibility that some exercises may assist. Mr Euers then consulted Dr Sago who issued a WorkCover certificate in April 1999. Mr Euers said he did not miss any time off work but he did lodge a workers compensation claim, with liability being accepted by the defendant's workers compensation insurer.

166 Mr Euers stated that he did not have time off work as a result of his disability. Dr Sago had recommended he be given mixed and varied duties, that is job rotation, and because he had performed clerical duties at Darling Harbour before coming to Pt Botany and had been trained as a team leader, he was given team leader and clerical functions. Mr Euers stated that because he had been rotated off straddle duties his problems settled down to the extent he could do his pre-injury duties that he was presently performing. On occasions he still drove a straddle crane when required. The defendant had also offered to provide free physiotherapy services.

167 Mr Euers, based upon his experience using the straddle carriers at Pt Botany, agreed with the four risks identified by the January 1998 risk assessment report of Re-Start Consulting. When he was operating a straddle he found that he was required to rotate his neck up to 90 degrees to the left when driving forward rather than 70 degrees as found by the report. He said that after the September 1998 agreement operators were required to drive for three and three-quarter hours followed by a 45 minute break and then followed by a further three and a half hours driving. In his experience, when an operator was waiting, he was still observing surroundings which often meant looking to the left or the forward direction. When involved in hoisting or lowering a load an operator was in a twisted position. He said that operators spent a vast majority of their time driving in the forward direction.

168 Mr Euers did not think that periods of neck rotation were broken by intermittent periods of rest due to the fact that productivity, as measured by the number of containers moved, had increased and operators had to spend more time driving. He said that operators were often required to flex their neck between 90 degrees and almost up to 180 degrees to ensure that they have the "all clear". He said this was due to the fact that checking some blind spots required up to almost 180 degrees rotation because of the absence of mirrors on the carriers. He did not agree that there were no forced or twisting movements of the spine. In order to check all blind spots it was necessary for the operator to turn the entire torso in a twisting motion. He said the state of the tarmac at Pt Botany had deteriorated vastly since the introduction of the straddle carriers and resulted in considerably more vibration and jerking of the cabin while driving the crane.

169 In Mr Euers' view it was dangerous to vary the direction of driving when operating the straddle because of poor visibility. Such driving was contrary to all training models regarding straddle crane driving. An operator would generally only drive aft to enter a container stack or when positioning the container doors for correct placement.

170 Mr Euers said the back rest adjustment on the seat in the cabin was not only stiff and difficult to move when the seat was new but continued to be stiff and difficult throughout the entire period of operation. The seat height adjustment lever was difficult to operate and many of them did not operate correctly, if at all. To the best of his knowledge, the seat adjustment mechanisms were not regularly lubricated and were poorly maintained.

171 Mr Euers spoke of the new enterprise agreement which became operative in September 2001. This agreement introduced a straddle relief driver for both yard and ship operations. Effectively, an additional driver was employed for a half shift in the yard operation thereby giving all other straddle drivers in the yard a 20 minute break. An additional person in the ship teams allowed the drivers operating on the ships to rotate to other operations. On occasions this could be only a half shift. No relief breaks were provided to straddle drivers in the rail/yard operations and a relief driver could be required to drive up to five hours at a time without a break.

172 As a result of his own experiences including driving straddles and in his capacity as a representative on the Occupational Health and Safety Committee at the terminal, Mr Euers said he became concerned about the use of straddle cranes. He had received reports from other crane drivers and wished to examine whether the driving conditions were in compliance with occupational health and safety regulations. In mid-July 1999, he asked Patrick's occupational health and safety co-ordinator for Pt Botany, Mr Andrew Synnott, to meet to discuss his concerns about the straddle cranes. That meeting was held later in the day with Mr Synnott and a Mr Frances, also a member of the Occupational Health and Safety Committee, in attendance.

173 Prior to the meeting, Mr Euers had reviewed the Occupational Health and Safety National Code of Practice for Occupational Overuse Syndrome. The Code of Practice contained guidelines and a check list for risk identification. He provided Mr Synnott and Mr Francis with a copy of the risk identification check list and asked them to work through the document with him. Mr Euers stated that, before the check list could be completed and after a number of questions had been answered "yes" in the risk assessment, Mr Synnott stopped the meeting and said that it should not proceed further and something would be said about this at the next occupational health and safety meeting.

174 Approximately two weeks later Mr Synnott announced at a meeting of the Occupational Health and Safety Committee that an assessment of straddle cranes was being carried out in Brisbane and a new seat for the straddle crane was being manufactured which would control the risks that had been identified in the meeting with Mr Euers in mid-July 1999. A document was also tabled, being an ergonomic report by Noel Arnold Consultants. Mr Euers had since been provided with a much more comprehensive Noel Arnold report from the one tabled at the meeting. It was in May 2000 that one straddle crane was fitted with a new seat, which had been discussed at the Occupational Health and Safety Committee meeting.

175 Mr Euers attached to his statement of evidence an injury management plan provided by his employer's workers compensation insurer. That letter, dated 10 May 1999, recorded that, in accordance with the requirements of s 45(3) of the New South Wales Workplace Injury Management and Workers Compensation Act 1998, an injury management plan had been developed following discussions with his employer, nominating a treating doctor and himself. Under the heading "Return to Work", it was recorded under the sub-heading "Actions" as follows: Dr Sago has indicated that the posture required when operating the straddle has caused Mr Euers' symptoms. A Lisa Vitale and Andrew Snett [sic] at Patrick Stevedores are aware of the problems and are taking steps to correct it. Mr Euers should obtain a clearance certificate from Dr Sago which indicates that he is capable of performing his pre-injury duties but that he is to rotate duties.

176 Also in evidence was a memorandum of late November 1999 from Ms Vitale in her position as claims officer. The memorandum noted that Mr Euers was currently on an injury management plan for his lower back set by his doctor, Dr Sago. It noted that, while he was fully fit for his normal duties, he was to be placed on duty rotation with one week's straddle work and one week's forklift work or other work as could be arranged as seen fit. The memorandum was directed to Graham Moore and David Phillips and concluded: Could you please see what can be done as we must participate with Dr Sago under the WorkCover Act.

177 In oral evidence Mr Euers said that, as a member of the Occupational Health and Safety Committee since early 1999, he had not seen Dr Bodel's reports on Mr Howlett, Mr Hargraves, Mr Crews and Mr Watson. Since being a member of the Committee, he had requested the medical assessment of straddle drivers and that was recorded in the Minutes of the committee. Once a subject was raised it remained on the agenda until it was dealt with. No statistics in relation to straddle drivers had ever been provided to the committee. A risk assessment of straddles was provided in mid 2000. Ms Vitale had provided a copy of the Re-Start 1998 report.

178 In relation to productivity, he was aware from public statements made by Mr Corrigan of the defendant company that a container movement rate of 12 to 14 per hour was unsatisfactory. The productivity had increased and the rate of productivity at the terminal had been made known to the employees by advising the teams. They were advised that 25 containers per hour was the benchmark and he had been told this by supervisors. Mr Euers said this impacted on the drivers and the amount of driving time.

179 In relation to the management of his symptoms, Mr Euers said that he was ultimately rotated with one week on the straddles and one week doing other duties. He still experienced symptoms but they were not so bad and he was able to assist himself by going to First Aid and doing alleviating stretches but he would come off the machine to do so. As a team leader there were no particular symptoms and, although he was required to operate a straddle regularly, he could do so without the symptoms returning.

180 In cross-examination, Mr Euers accepted that he had injured his back in 1996 when he slipped off a forklift at Darling Harbour. Mr Euers confirmed that he had back pain on the straddles before April 1999 but that in May 1999 he was fit to resume work with rotation. There was no recurrence of the injury since May 1999 that could not be relieved or alleviated. Patrick's had asked him to be medically examined after he spoke about his previous injuries to the secretary of the MUA branch, Mr Coombs, but he had declined to attend a medical examination with Dr Bodel as there was no existing claim and the injury management plan was in operation. Mr Euers knew from other training how to alleviate muscle strain or to deal with it and he knew that before 1999.

181 When challenged about the need to continually drive the straddle throughout a shift without a break, Mr Euers said that a driver could be disciplined if he came down from a straddle to go to the toilet. There were supervisors who knocked on cubicle doors and drivers could be disciplined for the length of time they spent in the toilet. He agreed that if he felt pain he could go to first aid without any discipline. From time to time the straddle could stop and, depending on the operation, a driver could relax. When the operation was moving hatch lids or if standing in a queue, a driver could read the paper.

182 Mr Euers agreed that as team leader he could rotate straddle drivers since the 2001 enterprise agreement but that was done with the agreement of the members of the gang. Before the September 2001 enterprise agreement, to his knowledge, the system of informal rotation did not apply. Between 2000 and 2001, he rarely worked on a ship but when on a ship he did see rotation among some teams but most teams did not rotate. He also agreed that there was considerable work undertaken to improve the tarmac but in his view the work of the straddles was such that they were losing the battle.

183 Mr Euers had not tried the new seat that had been trialled but was aware that the drivers regarded the trial as a failure because it did not address the problems that they had identified. He said he had not gone to the maintenance section to adjust the seat in his straddle although the seat was difficult to adjust.

184 Mr Steven Magnus was nearly 48 years old when he made his statement. He had commenced employment with Patrick Stevedores as a clerk in November 1973 and had remained over time an employee of various Patrick entities. His duties were based at Darling Harbour until January 1998 when he was transferred to Pt Botany terminal.

185 The defendant introduced straddle cranes into the Sydney waterfront in 1997 and he was selected as a trainer and ultimately became involved in training on the straddles. Mr Magnus' own training in the use and operation of straddle cranes took two weeks with the majority of the second week spent driving under the supervision of trainers.

186 In late 1997, Mr Magnus started training other waterside workers in the use and operation of the straddle cranes. For a period of time he took every second or third class and would average six courses per year but in the 18 months up until 2002 he only been asked to train on straddle cranes on one occasion. There was a period between approximately May 1998 to September 1998 when his employer was under administration, that he worked solely on the straddle cranes. Although he still drove a straddle crane from time to time, since the resolution of the dispute in September 1998, 90 per cent of his duties had been spent in a terminal tower where he worked as a senior clerk.

187 Mr Magnus stated that within the cabin there were a limited number of adjustments available to the operator. The driver's seat could be moved forward or backwards but the height adjustment of the seat was very difficult. When attempting to adjust the height of the seat, it was necessary to lift the left arm rest and kneel over the side of the seat to reach the adjustment control. The control was on a ratchet system and was very difficult to turn. The steering wheel was also adjustable. The back rest of the seat was able to be adjusted for tilt but only allowed half an inch of movement which was of limited value.

188 Significant problems were involved when driving the straddle truck including: (a) the pedal of the straddle was at 90 degrees to the way the cabin faced; (b) when driving, and particularly when depositing a container, it was necessary to adopt a twisted posture either to the right or left depending on the direction of travel and also to bend forward in posture to enable the driver to look below the level of the cabin while having his arms and legs in front of him operating the controls; (c) the roadways within the terminal were very rutted and potholed so that while travelling there was substantial jarring whilst at the same time driving the straddle in a twisted and bent forward position.

189 The computer which controls straddle movements was operated from the tower in which Mr Magnus worked at the Pt Botany terminal. The computer monitored jobs and automatically assigned jobs to each straddle. Each straddle had an "MDT" terminal which displayed details of the job to be done by that straddle. Mr Magnus said that, when a container box was latched on, the computer recorded a start time and when it was unlatched the computer recorded the job as finished. He was not aware of the computer recording travelling time except when the container boxes were latched on.

190 Mr Magnus gave a rough estimate that travelling to and from the actual container handling job would be double the time the container was actually latched on to the straddle. With rail jobs, the time would be closer to 90 per cent of the time the box was latched on because the travelling distance between the stacks on the rail was the longest distance to be travelled within the terminal. This work also involved going through traffic lights near the administration building which slowed down the travel.

191 Mr Magnus identified a number of manual jobs which were not recorded by the computer, and they included: (a) quarantine boxes (being boxes taken off the terminal to be washed as a result of quarantine requirements); (b) customs boxes (which are taken off the terminal for inspection by Customs); (c) jobs which appear completed on the computer which have not been done at all; (d) time spent looking for lost boxes; (e) time travelling to and from the refuelling area, which occurred every 24 hours;

192 Mr Magnus estimated that, particularly when rostered for work in the yard, a driver might be lucky to have 20 minutes in a day when he was simply sitting in the cabin. Before the new enterprise agreement the driver was never out of the straddle truck in the rest facilities and this simply did not happen. There were, before then, no rest facilities. In addition, if it looked as though there was going to be some downtime, a driver would be shifted to other work such as on consoles.

193 Mr Magnus did not agree with the suggestion that it was not necessary for the driver to twist his posture or to have an exaggerated neck movement whilst in a forward travelling direction. He said the straddle travelled at 90 degrees to the angle of the cabin seat. A driver would normally adopt a posture of leaning on the left hand arm rest, twisting at the waist and twisting the neck. Because the yard had a number of cross roads, it was necessary for safe driving reasons to look both right and left which involved an exaggerated twisting of the neck and torso so that the area effectively behind the seat could be viewed. This movement was also necessary when manoeuvring in and out of the stack prior to latching on to a container. Whilst travelling, the straddles were subject to vibration and it was almost impossible to adjust the height of the seat although the forward and back adjustment operated. He said that new straddles recently introduced were significantly better.

194 Mr Magnus said that, except for three new straddles introduced at the beginning of 2000, there was no improved suspension within the driver's seat introduced to dampen the vibration in the cabin. He was unaware of rubber mounting buffers between the cabin and the steelwork being introduced to assist in isolating the cabin from structural vibrations. He was also unaware of any re-designing of the steel bars covering the floor windows of the cabin to improve the visibility to key locations or any other steps to increase visibility. No step had been taken to investigate or introduce a cabin where the entire driver' chair, including the pedals and steering wheel, was on a rotating plate. There had been no rotation of gangs during the shift to ensure that individual straddle drivers were not allocated a highly repetitive task, such as locating containers on and off trucks, rather than the more interrupted task of working on the crane. No programme of repair and upgrade of the roadways was undertaken, only "reactive patching" of the worst affected areas. No exercise programme had been introduced or enforced by the employer so that, during periods when drivers were not required to move containers or travel around the site, they were encouraged to step out of their driver's seat and perform passive stretching exercise on the landing outside the cabin. There had been no introduction in the shift of an alternative roster of breaks during busy periods when natural breaks would not be anticipated.

195 In February 1997, Mr Magnus was involved in a car accident on his way to work and suffered injuries to his neck, right arm and right leg. These injuries caused difficulties for Mr Magnus when he drove straddle cranes at the terminal. Mr Magnus had been off work for four days and then returned to work on light duties for four to five months. After that, he was on normal duties and worked as a trainer and was not generally involved in doing heavy work. In 1998, he gave a history of increased pain on the right side of the neck spreading to the right shoulder which came on when he was relaxed in the evening after work. The pain increased when he stooped forward while reading and he also had increased pain while looking up constantly while working the shift. He had been referred to physiotherapy. On review a few months later, he stated that the neck pain was aggravated while working with equipment on the wharves. Mr Magnus had a consulted Dr Katrak in relation to rehabilitation and had been reviewed by Dr Bodel.

196 Based on his experience and training role relating to straddle cranes, Mr Magnus agreed with the January 1998 risk assessment carried out by Re-Start Consulting that the following risks were identified with the cabin of the straddle carrier: sustained neck rotation when driving and operating the straddle; awkward mechanical seat adjustment of the cabin seat; prolonged shoulder elevation when driving the straddle if the steering wheel was not adjusted; and, awkward reach postures to access radio and computer terminals.

197 From ergonomic reports he had read regarding the defendant's operations, Mr Magnus, based on his experience, agreed that the driving of straddles involved monotonous work movements, a high pace of work, short and infrequent work pauses, static work postures, elevated arms, sustained head postures and vibration exposure. In his view, for approximately 75 per cent of the time the driver's head was turned to the left, especially when unloading. He said although there were blind spots when driving the straddle, he had not experienced a blind spot when picking up and putting down containers. In relation to job rotation, he said that had existed before September 1998 but it was discontinued. He said that from the commencement of the enterprise agreement in September 1998 at Pt Botany, the defendant did not follow the main findings of the 1998 Re-Start Consulting report.

198 Mr Magnus also agreed with reports that described the unusual posture for straddle drivers which involved the placement of the head, neck and shoulder and back when picking up and delivering containers. He agreed that there were periods of up to two minutes at any time when the operator was looking sideways at right angles either to the left or right, followed a few minutes later by looking the opposite way for another few minutes.

199 In oral evidence, Mr Magnus said that he had played first grade rugby league for three years and had trained professionally in those years which involved a great deal of physical training. He had been a competitive swimmer and had been involved in lifesaving. He referred to logs that were kept in relation to the roadworks: he had been asked by the operations manager and the road manager to log toilet breaks.

200 In cross-examination, Mr Magnus said that he had told Dr Bodel that he was experiencing an increase in neck, head and shoulder pain while driving the straddle machines, having become part of a gang on the waterfront at Pt Botany in March 1998. Prior to March 1998 he had been mainly training but from March 1998 he was working more in the gang and driving straddles constantly, even though at that stage there was a rest period. He agreed that he had been involved in a motor vehicle accident in February 1997 and had never fully recovered from that accident. He still had neck pain and as far as he could tell that was due to the motor vehicle accident. In May 1999, he had pain in his lower back caused by the movement of the straddle pushing the driver forward in an unnatural position. That had been reported to first aid. There was no claim for workers compensation. An entry on 1 July 1999 in the First Aid Book noted he had reported head and back ache, which he said was about neck pain. Mr Magnus said the neck pain was continuous since the car accident and he suffered it at the end of the shift. He was now starting to get it at the beginning of the shift. Mr Magnus agreed that most of the reports regarding his shoulder and neck were mainly from the car accident but were aggravated from the different duties he was performing and that was not restricted to driving straddles. The pain was worse, however, when he was driving straddles because he was more or less pushing his muscles on top of the shoulder and pushing his neck more when he was performing that work. He had made a number of complaints whilst working on the computer but he did not tell his employer at any stage that he was unfit for this work.

201 Mr Magnus was unaware of an informal system of job rotation operating between 1998 and 2001, or job rotation organised by the team leaders. He agreed that he could take a break to go to the toilet - that was an example of a break which could be taken at the discretion of the driver. He agreed that from time to time, in the course of the work, the straddle would be stopped and when that occurred the driver could relax for a short time. An example of such time would be when there was a queue at the portainer while there was crane breakdown. This might involve a wait of five or ten minutes. The drivers were still alert to what was going on around them and listening to the radio and twisting to look at what was going on at their portainer but they may have time to quickly read part of the newspaper. However, if the work was continuous work there would be no break at all. If the crane did not break down, the only times there were delays was while there was lifting work being done. 202 It was put to him in cross-examination that for a long time whilst driving the straddles he had no problems. Mr Magnus said he was also training a lot and working on the computer as well. Mr Magnus accepted that there might be a period in the First Aid Book where there was no complaint from him about driving straddles and straddle driving causing him pain, but he said that he was suffering pain but was not reporting it - he thought much of it was to do with his original car accident but later found that it was not just him but other drivers who were suffering pain while driving the straddle. He did agreed that he had pain doing just about any work.

203 In re-examination, Mr Magnus said that the pain he experienced was not at its worst when he was doing work with the computers but it was when he was working on the straddle that it was at its worst. Doing this work he was twisting his body a lot more and the pain was worse. In relation to breaks other than toilet breaks, Mr Magnus could not think of any other discretionary breaks which could be taken.

204 In relation to breaks created by portainer breakdowns, these did not occur on every shift. When they occurred, the straddle team could be transferred to other work if the duration of the breakdown was estimated to be sufficiently long. In the control tower, he had been told by management to make full use of the straddle teams and the drivers. He was unaware of any management direction that as a risk control measure the driver should take a break when there was otherwise a breakdown in machinery.

THE EXPERT'S EVIDENCE 205 The prosecutor brought evidence by way of a report from Unisearch Ltd prepared by Mr Patrick Donohue, a forensic engineer and ergonomic consultant in the School of Safety Science at the University of New South Wales. Mr Donohue had primary degrees and post-graduate degrees including Masters of Engineering and Design from tertiary institutions in Ireland. He was a chartered member of the Institute of Engineers of Australia, a member of the Ergonomic Society of Australia and also a member of the Irish Ergonomic Society. He belonged to a number of other engineering societies and was a member of two Australian Standards committees.

206 In his introductory remarks, Mr Donohue said that design engineering arose in this matter because of the physical design configuration of the straddle crane, and ergonomics were involved by virtue of inclusion of a work station cabin placed upon the crane.

207 Mr Donohue conceded that he had not undertaken a site inspection to view the design of straddle cranes nor its mode of operation in the layout of the dock area in which they operated at the Pt Botany terminal. He expressed the view that the nature of system analysis was not constrained by a detailed breakdown of every single aspect of physical objects in order to render an expert opinion on the synergistic relationships forming the core risks facing the employees operating the cranes. Mr Donohue focused on the physical design of the straddle crane as it would directly affect the ergonomic environment. On this approach he analysed the engineering first and the ergonomics second, an approach that had not been adopted in the Re-Start Consulting report. That report contained many measures to mitigate some of the poor engineering design features of the straddle crane but did not deal systematically with all of the issues.

208 Mr Donohue noted that, for both forward and reverse travel, the driver's frontal position was placed at 90 degrees to his axis of motion. He described this as "posturally unsafe". He also described this as the first and most crucial design flaw of the straddle crane. Good engineering practice, for example, in operating a back hoe with its rear facing structure was achieved by a 180 degree rotating seat. It was possible to have both the controls and the seat rotate 180 degrees. Further, as the steering wheel was connected by electrical or hydraulic lines and not by mechanical linkages, the rotating console option was not available and thus the straddle crane was flawed "in this fundamental engineering design perspective".

209 Mr Donohue understood that the operator of the straddle had to twist his neck or cervical region to the left when wishing to move the vehicle to his left, that is, forward. He said it was likely that the driver would bend his neck at the same time since the ground surface of the dock was well below the driver. It was probable that the driver must regularly inspect and view a large area of concreted pavement and other vehicular movements. He noted that the drivers stated that there were "topographic mismatches" which yielded vibrations. There were a number of movements on the ground of which the driver had to be aware: there was thus the creation of fixed static postures of the driver's upper back, particularly for the driving task, and added motions occurring in the driver's neck which would further stretch the muscle groups working to maintain an awkward spinal posture. The degree of spinal flexion involved was a risk as noted in the Re-Start report. The spinal flexion occurring in the neck region was an additional risk.

210 Mr Donohue said that there was readily available information on occupational overuse syndrome which was more correctly called "Adverse Mechanical Tension" (AMT). This information would highlight the degree of risk the duties of driving a straddle crane create for the operator. One of the most widely referred to sources was the Standards Australia Handbook HB 10 1987 entitled "Occupational Overuse Syndrome - Preventative Guidelines". In the section of that document dealing with work hazards there was reference to the work being paced by daily production targets. It was noted that information had been provided that the work targets of the employees on the straddles had been increased over time. The Standards document stated that the greater the rate and duration, the greater was the probability of developing an occupational overuse syndrome.

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.

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.

214 Vibration was a factor. There had been no on-site testing of the levels of vibration and the exposure of the driver but Mr Donohue pointed out that the cabin being cantilevered onto the structure of the crane amplified the vibration to the cabin due to this design configuration. This risk factor could only be mitigated by improvement in road surface, velocity of travel and damping of the structure as key factors creating the risk. However, he stated that the on loading and off loading of containers would never erase the presence of this hazard. A further factor was insufficient or inadequate rest periods causing muscular fatigue. Mr Donohue referred to research that stated that poor posture was an acknowledged precursor of injuries and noted that, if the equipment forced operators to remain in an awkward position for a prolonged period they would be more prone to making mistakes and incurring some type of physical injury over time. Mr Donohue agreed with this statement and said that there was a need to decrease the time spent by each operator in awkward postures and this was a necessary ergonomic requirement to lessen the risk associated with lack of rest. Here, the duties did not allow rest to be of sufficient duration to lessen the cumulative fatigue associated with demanding work practices. Mr Donohue had formed the view that in this case the work practices were demanding.

215 Mr Donohue also referred to the National Code of Practice for the Prevention of Occupational Overuse Syndrome, stating that this document reinforced much of the risk factors raised by the Australian Standards document. The document provided an insight into the ergonomic related factors that signal the presence of AMT risk factors, as did the National Standard and the National Code of Practice for manual handling. The risk factors identified above were present in this work situation at Pt Botany terminal. The identified hazards did not necessarily exist in isolation from one another but could act in unison creating further generic hazards because of those interactions.

216 Using the National Code of Practice check list, Mr Donohue formed the opinion that the following were present in the work tasks required of straddle drivers: (a) there was frequent and prolonged bending and twisting of the back and the neck as had been indicated by the Re-Start report; (b) there were awkward postures assumed over prolonged periods, which were not forward facing and upright; (c) the driver operator had to turn his torso to the left and right for forward and reverse travel of the straddle crane respectively.

217 In order to remedy the situation, Mr Donohue recommended the undertaking of a risk control exercise which should consider job re-design; variation in the mode of approach to the required views and use of controls, whether standing or partially seated would achieve mitigation and the provision of training to implement the first two measures. Mr Donohue formed the initial conclusion that the rostered duties did not allow sufficient rest breaks to overcome the accumulated fatigue created by the list of critical risk factors associated with AMT as outlined in the Australian Standard. In his view, steering adjustment and seat adjustment and like individual hazard mitigation were minor in effect: they did not lessen the fatigue caused by the over-exertions required and the awkward postures developed. Mr Donohue expected that, with the size and nature of this piece of machinery, re-design for engineering and ergonomic factors, after consultation, would usually be available. He suggested that frequent changeovers could be used to withdraw the operator from the ergonomic unsafe work tasks and provide rest breaks of sufficient duration to allow the constrained postures from creating cumulative fatigue. Transfer of the operator driver duties for a period of time would enable the fatigue to disappear. Therefore, job rotation was an identifiable control measure, as was physical exercise, although Mr Donohue noted that it was of some assistance but of itself would not lessen all the risks of postural contortion - rest was required. Importantly, the design of the straddle had to be examined, especially related to the forward and reverse driving controls of the crane and improving the visibility of the operator.

218 Mr Donohue's report contained a number of photographs of the straddle crane and the environment in which it operated at the Pt Botany terminal, including pictures of the tarmac. Also attached to his report were various national standards and articles he had referred to in the course of his report.

219 In a second report, Mr Donohue expressed an opinion in relation to eight different reports dating from October 1994 until July 2000 dealing with various aspects of risks associated with straddle driving. Mr Donohue said that the reports had such common similarities that the following conclusions could be reached: (a) hazards abound in the use of straddle cranes; (b) the risks from the daily presence of these hazards was significant; (c) that there was a need for risk control strategy to be put in place to actively ameliorate such a situation; (d) that unless the aforementioned three steps were followed, an injury of some form would have a high risk "signature" and most probably result. Mr Donohue then commented on a number of observations made by the writers of the reports with which he agreed or, where he did not agree, gave reasons for his opinion. He noted that the reports identified prolonged sitting, prolonged head and trunk rotation, the necessity to lean forwards and sideways from a seated position as being positions he had associated with the task of driving the straddles. Mr Donohue also commented on either the limited nature of these reports or the limitation of their analysis and recommendations having regard to, amongst other matters, the qualifications of the authors. A number of the reports contained photographs, including photographs of the postures adopted, and in that sense Mr Donohue found these helpful. He was critical of reports, especially by ergonomists, that merely recommended exercise: exercise could only lessen the already built up muscular fatigue created by the tasks. Thus, it was mere damage reduction, of some benefit, but highly limited. Exercise could not be regarded as a major step to overcome the hazards.

220 In relation to the January 1998 Re-Start Consulting report, Mr Donohue noted that the hazard identification exercise was not detailed but it was otherwise quite thorough in its analysis. He saw shortcomings in the report in that it did not include any engineering analysis. He noted that there was a suggestion that there were no twisting movements of the spine which he viewed to be incorrect as illustrated by many of the photographs in other reports. The report also suggested that drivers vary their direction of travel, which Mr Donohue described as "ergonomic suicide". He stated that the presence of controls placed to one side of the operator while he turned through 90 degrees to them was setting up what was known as the ergonomic stereotype, that is, the driver could come to rely on tactile indication and memory reliance on where the controls were located. The change in driving direction by turning the operator to the reverse, that is 180 degree direction of travel, was likely to incur considerable loss of safety. Whilst the hands were doing the same movements as before, visually the left hand side was now the right hand side and the right hand side was the left. Full cabin rotation was the best way to overcome this problem. Therefore, while the report was good in its detail, it did not go far enough.

221 It was noted that in a number of the reports, including a 1995 report, referred to National Standards and Codes thus identifying for the defendant a number of authoritative documents by which the risks associated with the driving of a straddle could be assessed.

222 In oral evidence, Mr Donohue said that he had previously reported on rubber tyred gantries in the stevedoring industry in Australia for a case in the District Court, and had prepared overuse reports for both the District Court and in some circumstances for the Supreme Court.

223 Mr Donohue referred to an article published by MPJM Van Riel et al in the magazine "Ergonomics" in 1995, a publication he regarded as one of the top two main ergonomic journals in the world. In this paper, the postures of three groups of employees were measured: straddle carrier drivers, crane operators and office employees. The work was characterised as being highly static. The results of tests showed that the adopted postures and patterns of movement were predominantly imposed by the workplace. Typically a straddle carrier driver rotated his head more than 45 degrees to the left or right for 28 per cent of the day, which far exceeded that for any other group. The report asserted that job-related neck, shoulder and lower back disorders were an increasing problem in industry and ranked high in the cost to workers compensation insurance carriers in many countries. While for the vast majority of workers with musculoskeletal symptoms the underlying cause was unknown, in a working environment mechanical load on body structures was considered to be of causative importance to the disorders of the back, neck and shoulders. Mechanical load could be caused by both posture and movement. Prolonged forward inclinations of the head and trunk were work related risk factors. Flexion of the spine increased biomechanical load, discomfort and activity in some neck and shoulder muscles. These conclusions were adopted by Mr Donohue in his oral evidence.

224 The article described the task for straddle carrier drivers as follows: A straddle carrier (figure 2) is used for moving freight containers, generally for a distance of a few hundred metres up to one kilometre; it can stack up to four containers. The cabin is at the top of the carrier, which is about 10-13 m above the ground. The container is suspended below the driver and he must therefore look downwards while positioning the spreader over the container. He must also look to the right or left during transport, because he sits perpendicular to the direction of movement. Mr Donohue adopted that part of the article which dealt with the chair of the straddle carrier forcing the driver to continuously look to the left or right. Other studies had shown more than 35 per cent of head rotation involved considerable forces in the muscle and joints of the neck. This was said to indicate occupational risk factors which may explain the neck and shoulder complaints of straddle carrier drivers; such excessive axial rotations were not found in crane operators and office employees. Mr Donohue also agreed with the article where it suggested that the workplace of the straddle driver required re-designing, particularly to reduce the amount of axial rotation to lower the load. In further emphasis of these views Mr Donohue believed that the design of the straddle was flawed and a re-design of the cabin was needed as it was the root cause of the problems experienced by the driver. Rotation of work was mitigation at best because the flaws in the design remained.

225 Mr Donohue had recently watched a 20 minute video with counsel for the prosecutor and an employee showing the work performed by straddle drivers. He did not think it was essential to see the video before he wrote the report and again he emphasised that this was a case of man accommodating to the design of the machine. In relation to his report he had relied on photographs, had telephoned a person in relation to the work and asked questions, had access to and read reports and statements together with photographs and these were comprehensive. He did not regard himself as being "short of information". Having watched the video, he had not changed any of his conclusions. His essential opinions remained the same and he thought that only part of the task had been demonstrated. The video showed repetition in the pick-up and release of containers and the vibrations. The video, undoubtedly for ease of the videoing task, was predominantly looking from the rear but that was inadequate to show the jerking and the change of posture involved in the work. Mr Donohue was taken through a number of reports and adopted specific parts of them dealing with driving positions and driving periods in particular. 226 According to Mr Donohue, the significance of the driving time looking left was the twisted nature of the posture all during the driving time and it did not matter if that involved carrying a container from an ergonomic perspective. The driver was sitting in a static position and subject to vibration.

227 In relation to muscles used in straddle work, Mr Donohue pointed out that the muscles needed time to re-aspirate and go back to their natural position otherwise tension would accumulate. The need to rest was to lessen fatigue and exercises alone were not enough although they helped. He said that vibration exacerbated tension in overstretched muscles and vibration increased muscle tension. Repetition increased the risk and the risk was high.

228 In cross-examination, Mr Donohue said that he was critical of the 1998 Re-Start report partly because it was not much concerned with the design flaws he had identified. He accepted that a person could be an ergonomist without being an engineer but one aspect of ergonomics was to assess risk and this had not been fully done in this particular report because it left out mechanical design flaws. He accepted that an ergonomist was not necessarily an engineer and an engineer was not necessarily an ergonomist: they were two distinct professions. Ergonomics was concerned with humans and the workplace and was multifactorial and looked at systems and identified risks. The equipment was part of the system but had not been considered by the ergonomist.

229 Mr Donohue said he had statements from six drivers and he accepted what they stated unless from an engineering or ergonomic standpoint it was called into question. What they said was relied upon in coming to his conclusions.

230 Mr Donohue stated that the complaints by the drivers themselves were not particularly important to him but he expected that without such complaints there might be no need for a report such as his own. He was able to look at the piece of equipment and produce a report as to its inherent ergonomic failures. The statements by the drivers as to their physical stress caused by driving straddles was significant in that it identified the potential change between the design and some form of injury occurring. Mr Donohue was not aware that the defendant employed some 600 straddle crane drivers in Australia and he had made no enquiries of any other drivers apart from those who prepared the six statements he had been given.

231 Whether a driver was at risk from vibration depended on the severity of the vibration and the ability of the seat or the cabin to emphasise it or reduce it. Mr Donohue accepted that he had never driven a straddle crane although he had worked on a factory floor - he had no licence to drive heavy machinery. He had never been in a straddle crane but he had seen one at a distance. He said there was a level above which vibration was injurious to the driver but he had not measured the vibration at the Pt Botany terminal. Without testing, the levels of vibration could not be determined.

232 Mr Donohue did not know how many straddles were used in the world nor was he aware if they were used at risk in the great ports of the world apart from Pt Botany - he was not asked to undertake that analysis. Mr Donohue thought that a rotating seat and steering wheel was a partial solution of the engineering flaw. He had not enquired about straddles with rotating seats being used elsewhere but he knew they existed. He thought it would be practical to install a rotating seat in the straddle crane.

233 When asked how easily the design flaws could be remedied Mr Donohue said that, given the cost of the equipment was substantial, what he proposed would require a fitter/welder/mechanic under the supervision of a design engineer: something could be seriously done to achieve a more appropriately designed cabin. That also involved a bigger cabin, rotating seat and rotating console. In comparative terms to the overall cost of these items, the frequency and duration of the type of postures exhibited by the drivers, he would state that the task was a straightforward piece of re-engineering design.

234 For the purposes of his report he had made the assumption that the driver was seated in the straddle for the majority of a shift. He said it was not necessarily the situation that the position when driving the straddle was different when moving containers. He assumed one rest period for lunch and that predominantly the driver stayed in the straddle throughout the shift. He said it made very little difference whether or not the driver was fully in the straddle or whether he had one or two five minute breaks - the nature of the postural variation was simply inappropriate. He was not saying that short breaks were not going to help but so many short breaks, as generally recommended by ergonomists, would frequently leave the driver in and out of the straddle cabin and then genuine downtime would be very high.

235 Mr Donohue also accepted that the driver could relax for a short time when not concentrating but it depended on what he was doing when he was still controlling the vehicle. He had seen the video where the driver was reading a newspaper but he doubted he was relaxing because the driver still had his feet on the controls and was still in the same seat and the period of time would be likely to be very short. His lumbar spine would be in a state of tension because he was sitting down and his knees were quite high due to the location of the pedals. If he was not using the pedals then he would be more relaxed than otherwise. A driver sitting reading the newspaper without his feet on the pedals would not, however, be fully relaxed because he was still in the seated posture. The muscles were still in tension to keep the person erect.

236 If it was not possible to insert a rotating seat and controls, then Mr Donohue accepted that it was appropriate to look to breaks in the work for relief. However, very frequent breaks would be needed in order to address overuse syndrome.

237 The respondent called expert evidence from Mr David Caple, Director of David Caple and Associates Pty Ltd. Mr Caple had an Honours degree in Science and held a Masters degree in Science (Ergonomics) from Loughborough University, UK. He was a member of the Ergonomics Society of Australia, being a certified ergonomist and was also a member of the Ergonomics Society of the UK being a Fellow of that Society. Mr Caple described himself as an independent Occupational Health and Safety Consultant with 16 years in private consulting and seven years in corporate and research employment. He had provided expert advice in personal injury court cases and had conducted industry based occupational health and safety consulting in a number of industries as well as conducting research in occupational health and safety issues for a number of bodies including State governments.

238 Between April 2001 and August 2003, Mr Caple had provided five reports in relation to an ergonomic review of straddle trucks at Pt Botany for the defendant through solicitors acting for the defendant. The first report provided in April 2001 noted that the ergonomic assessment was requested in circumstances where the present prosecutions had been brought alleging breaches of the Occupational Health and Safety Act 1983. Mr Caple had been provided with the applications for order in each case, the brief of evidence provided by the prosecutor, except the opinions of other expert consultants which were withheld to ensure the independence of the views he expressed. During a site visit, further details of the system of work were provided by four managers employed by the defendant, namely, Mr Synnott (Occupational Health and Safety co-ordinator), Mr Bilston (Deputy Terminal Manager), Mr Lee (Operations Manager) and Mr Wain (Human Resources and Training). Arrangements were made for Mr Caple to travel on a straddle truck in consultation with Mr Euers - a team leader and Occupational Health and Safety Committee member and ultimately a witness in the proceedings. The driver of the straddle truck was Mr Vukicevic.

239 As background, Mr Caple informed himself of international studies relevant to the design and use of straddle trucks and identified the 1995 article by Van Riel which had been commented upon by Mr Donohue. These international studies disclosed the risk of neck, shoulder and back injuries arising from the operation of straddle cranes, and there were some recommendations for job rotation and equipment re-design to reduce the MSD risk factor.

240 Mr Caple set out the introduction of straddle cranes at Pt Botany from 1998 until the full complement of 27 trucks was achieved during 1999. He described the nature of the work, the containers handled, the composition of each gang and the shift system of work. These matters have been set out earlier.

241 In describing the duties involved, Mr Caple said that the tasks involved in attaching and lifting the containers required the drivers to repetitively look between the left and right sides of their cabin and in particular through the floor windows to accurately see the spreader bar and container activity. There was a wide range of dynamic movements of the seated driver between the left and right sides of the cabin whilst container moving activities were undertaken. He said that it could therefore be concluded that the sub-task involved significant dynamic work with little static potential for fatigue as a result of the work duties. The range of postures for the driver did involve rotation of their back and also of their neck through a 180 degree range between the left and right sides of their cabin. He stated that they would occasionally look beyond 180 degrees prior to moving away from a work location to ensure clearance on the roadway that they may be about to enter. The brake, the accelerator pedal, steering wheel and the straddle truck controls on the left and right arm rests provided a fixed posture facing 92 degrees towards the side of the straddle. Mr Caple said that it was evident that the location of the cabin at one end of the straddle resulted in some visual obstruction, particularly to the right of the straddle when it was carrying a container. It was noted that the straddles were driven around the terminal "cabin leading" primarily to aid visibility, and as a result, the majority of driving activities involved looking out the left window of the cabin. Mr Caple said: It is not necessary for the driver to twist their posture or to have exaggerated neck movements whilst in a forward travel direction as he has good distance visibility from the driving location within these cabins.

242 The primary risk factors associated with driving were identified as relating to whole body vibration to which the driver was subjected when he was seated in the suspension chair. This resulted from the "slightly" uneven road surfaces around the site which compact particularly between the roads of containers through constant use by the straddle. The extent of vibration was influenced by the speed of travel of the straddle and the dampening provided within the design of the driver's seat. Although there was an adjustment mechanism on the seat, it was observed by Mr Caple that the lighter driver had difficulty in reducing the height of the seat due to the tightness of the suspension. He stated that it was possible therefore for the transmittance of vibration to the driver to be minimised through attention to the seat suspension and vibration dampening systems between the cabin and the driver's seat.

243 There was also shuddering as the containers were picked up or set down: the amount of shudder appeared to be directly related to the speed of the lifting or dropping motion.

244 Mr Caple accepted that the awkward postures and movements could be classified as risk factors for MSD or strain and sprain injuries, particularly for the neck, shoulders and back for the seated driver. The duration and frequency involved in performing the activities would influence the potential for accumulation of fatigue. The risk factors may increase when the drivers are required to adopt postures involving more than 45 degrees rotation of their neck and 20 degrees flexion of their spine. That potential would be affected by the height of the operator: shorter operators may require more flexion to view over the side of their chair down to the container compared with taller operators who may require less flexion of their back.

245 The straight driving task involved an acceptable range of dynamic neck positions. The majority of excessive flexion or rotation appeared to occur when drivers were looking directly down to the container below. For an experienced driver, this was of short duration generally followed by asymmetrical posture as the operator drove away. While, from an ergonomics perspective, there were movements of the neck, shoulders and back which were outside the recommended range for prolonged static activities, here they were of short duration. The frequency was dependent upon the number of containers handled by each individual driver during the shift. Statistical detail relating to the container movements with distances driven around the dock would provide some "contextual data" to evaluate the cumulative effect of performing these ranges of seated postures while driving.

246 Mr Caple noted that European research relating to straddle truck driving recommended two options, namely, job rotation and cabin design. He recommended further consultation with the manufacturer of the straddle to see if there were options available which may provide improved driver comfort when performing container movement activities. Without pre-empting the response of the manufacturer, Mr Caple suggested some short term modification that may assist the drivers: (a) provision of an improved suspension within the driver's seat enabling them to more accurately calibrate the dampening of the vibrations transmitted to the cabin whilst driving; (b) consideration as to whether the introduction of a rubber mounting buffer between the cabin and the steel work of the straddle would assist in isolating the cabin from structural vibrations; (c) re-designing the seal bars covering the floor windows of the cabin to improve visibility to the key locations under the cabin where the spreader bars attach to the containers; (d) providing a process of ventilation and cleaning of the floor windows to ensure optimum visibility below the cabin; (e) re-assess the structural frame within the window design of the cabin to optimise the visual path of those tasks that require "critical sight lines"; (f) investigate the option of mounting the entire driver's chair, including the pedals and steering wheel, on a rotating plate. This would enable the driver together with all of his hand and foot controls to rotate 90 degrees into an alternative locked position for use when driving the straddle truck in a forward direction around the site. This method had been used in the manufacturing industry for cranes in steel processing mills. Mr Caple was unsure of the practicability of the re-design, but suggested the names of crane manufacturers as being able to provide further feasibility of such an approach.

247 Mr Caple made further recommendations of administrative controls which in the short term may reduce the potential for MSD risk factors for the straddle drivers. Those controls were identified as: (a) the rotation of gangs during a shift to ensure that individual straddle drivers were not allocated to highly repetitive tasks such as locating containers on and off trucks. It was suggested that the pooling of straddle trucks may assist, rather than have them dedicated to specific activities; (b) a programme of repair and upgrade of the roadways especially the asphalt surface which had been rutted due to repetitive movements of the straddles. Priority to be given to main roadways where the drivers were more likely to travel with some speed; (c) when drivers were not required to move containers or travel around the site they were to be encouraged to step out of their driver's seat and perform passive stretching exercises on the landing outside the cabin. A formal programme of exercising would not normally be required for this activity. However, passive exercise generated blood flow and would assist in reducing fatigue and prolonged seated tasks such as the driving of the truck; (d) consider an alternative roster of breaks during the busy periods of the shift when natural breaks would not be anticipated. The general consensus amongst ergonomic research into MSD conditions was that short breaks taken more frequently were of greater benefit in reducing accumulated fatigue than longer breaks taken less frequently. Such breaks did not necessarily involve the driver returning to the crib room or leaving their straddles. Drivers would be encouraged to step out of their cabin roughly every 30 to 60 minutes to have a change from a seated to a standing posture and then continue with their driving activities. This activity was not to be confused with coffee breaks, the opportunity for socialisation and a change of environment away from the straddle.

248 In his conclusions to this report, Mr Caple said that, on an ergonomic risk assessment of the straddle drivers, there were some risk factors which primarily related to the requirement to look repetitively within a 180 degree arc to the left and right of the fixed, seated position, particularly when lifting/lowering containers under the straddle. These risk factors were compounded by the low level, whole body vibration relating to the travelling within the straddle truck and the raising/lowering shudder from the spreader bar mechanism. The actual driving and operation of the straddle truck were not considered to be unsafe from an ergonomics perspective. It was foreseeable however that some individuals, particularly those with existing MSD conditions, may develop discomfort due to accumulated exposure to this type of working posture. There was in fact some advantage, from an ergonomic perspective, in having a range of movements in driving the straddle compared to prolonged static postures in other driving tasks with limited fields of vision requirement. A range of engineering and administrative controls had been recommended which may assist in reducing the potential for MSD problems amongst the drivers. Apart from approaching the manufacturer in relation to the design it was recommended that the control strategies be subject to further consultation and feasibilities with the defendant and its staff.

249 On 5 June 2001, Mr Caple provided a supplementary report. In this report Mr Caple dealt with additional information passed to him since his first report. Firstly, he was provided with medical reports and like documents concerning ten employees with "alleged injuries" involving work on straddle trucks. Secondly, statistical details of container movements against the name of employees responsible for moving those containers.

250 In relation to the medical files, Mr Caple accepted that he was not able to comment on the diagnosis and treatment of the persons suffering alleged work related injury. However, he was able to use the information as background to the relationship between work duties and employee injuries. If there was an MSD condition diagnosed by a medical specialist, he felt qualified to assess the tasks utilising the risk factors outlined in the National Standard for Manual Handling. Ten cases were reviewed, including the six drivers who gave evidence in the proceedings. Of the other four drivers, the following summarised their condition: in June 2000 a report with a diagnosis of cervical musculo ligamentous strain due to constant neck turning driving the straddle; in July 2000 an initial report relating to lower back and neck strain with objective tests including x-ray and MRI scans showing nerve compression at C6/C7 and spondylitis at L5/S1 allegedly due to long driving of straddle trucks; cervical and lumbo sacral strain reported in December 2000 with development of chronic symptoms since 1997 through straddle truck driving; an aggravation of the condition through vibration and inadequate suspension - report and x-ray showing L5/S1 degeneration; neck injury when driving a straddle that hit a pothole initially reported in May 1999 with a follow-up report of neck injury diagnosed as pinched neck nerve in December 2000.

251 Looking at the explanations provided in the injury reports and medical files, Mr Caple was unable to discern any consistent pattern as to a causal relationship with the task analysis involved in driving a straddle. There appeared to be two categories of injuries - slip, trip or fall, collision of vehicles injuries and whole body vibration, particularly pothole or bump injury. Other injuries had no specific timing or causation links other than general statements associated with driving the straddle. Mr Caple also noted that six out of the ten had not been required to submit objective test evidence to verify the existence of their musculoskeletal disorder, although he acknowledged that soft tissue injuries would probably be difficult for doctors to substantiate through objective testing. These injuries were more likely to heal and result in minimal residual restrictions compared to structural damage to the musculoskeletal system which would normally be verifiable using medical testing methodology. He expected that where there was an allegation of partial or permanent disability of an MSD condition there would be objective medical evidence to support the claim and, in the absence of such evidence, he would reserve judgement as to any causal links between the task analysis and the alleged MSD conditions reported in the medical files. In those case where there were diagnosed medical conditions, the symptoms appeared to be related to vibration transmitted to the driver through the suspension of their seat while driving across the terminal and repetitive turning of the neck/back in viewing down either side of the truck's chair when engaging or disengaging the containers underneath the straddle. These matters were consistent with those identified in the task analysis provided in Mr Caple's first report.

252 In relation to the statistical data concerning container movements, Mr Caple said it was evident there was much variation on a ship to ship basis and even on a driver to driver basis depending on a range of factors which included the demand for container movements to meet shipping schedules, the availability of straddle trucks and drivers, the nature of container movements required on a shift and the training and experience of the driver. From this material he was able to say that the average time to complete a container movement on the road was 4.8 minutes, at the rail was 2.3 minutes and on a ship was 3.6 minutes. Mr Caple acknowledged that there would be a significant range associated with these times.

253 The report then dealt with the notion of "down time", which included a time when the driver was awaiting an allocation of the next job and could also include the time taken to drive to the next allocated task. Again, a wide variation was found. In relation to two drivers who had given evidence, Mr Watson and Mr Magnus, the data showed an average down time of 73 per cent and 72 per cent respectively. Mr Caple said that these figures implied that drivers spent the majority of their shift stationary in their straddle truck awaiting allocation for the next job from the computer or driving around the site to their next allocated job. Mr Caple stated that whilst the data provided averaged over a two year cycle, it was evident from viewing individual employees' sheets that there were shifts when the majority of the time was allocated as work time and the minority was down time.

254 In conclusions arrived at in this supplementary report, Mr Caple did not alter his views expressed in the first report but said there appeared to be three primary causal relationships between the MSD symptoms and the tasks performed by straddle truck drivers including: (a) aggravation of previous work related injuries, in particular associated with slips or falls or involved in vehicle collisions; (b) whole body vibration associated with straddle trucks striking potholes or road bumps; (c) accumulated load on the neck and lower back associated with the viewing task below the straddle truck in attaching the container. There was little objective medical evidence to support the injuries. The majority of the work involved road handling and road handling tended to involve longer travel distances and more frequent lift and lower tasks of containers. It appeared that approximately 70 per cent of the shift, on average, would be spent in the down time mode and it was assumed that this time would be spent driving to the next job, sitting in the straddle truck waiting for the allocation of a task or being out of the straddle in the rest facilities. It was concluded that straddle truck driving activities involving container handling would occupy approximately 30 per cent of an eight hour shift and would not be considered excessive from an ergonomic perspective.

255 In his second supplementary report dated 18 June 2001, Mr Caple dealt with the expert opinion expressed by Mr Donohue. Mr Caple criticised the level of ergonomic expertise of Mr Donohue and regarded his qualifications as a forensic engineer as not being relevant to the report. He regarded Mr Donohue as demonstrating a limited understanding of ergonomics, while criticising other reports for not being a full analysis. It was suggested that Mr Donohue's paper itself had not produced a proper risk analysis. Mr Donohue's assessment that 40 per cent of straddle cranes were idle was not supported by any statistical data. He thought Mr Donohue was confused about the difference between static posture and dynamic forces, and stated that Mr Donohue's alternative of a standing position to drive was merely speculative and had no basis as being a practical alternative.

256 Mr Caple clarified his view that the lower order of risk control measures such as rest break and exercise would only be used as a potential short term option while the feasibility of a higher order, re-design option was being considered. It was noted that a new rotating seat had been evaluated in Queensland at the Patrick's operation. This had not been referred to by Mr Donohue. It appeared that Mr Donohue did not understand the job profile involved in straddle truck operation at Pt Botany, and that up to 60 per cent of time was spent in idle mode where the driver was able to sit in a comfortable posture while awaiting further instructions or to be travelling in a forward direction to the next job. Neither of these were stressful postures when compared to the more controlled visual demands below the straddle truck when lifting and disengaging the containers. Overall, he concluded that the credibility of Mr Donohue's report was seriously flawed.

257 On 18 January 2002, Mr Caple provided a third supplementary report. On the basis explained to Mr Caple since his previous report, he now understood that down time commenced when the driver released the container at the designated yard and drove back to the ship crane would be during ship unloading. The same principle applied for truck loading and unloading. On the basis of this further information, and in consultation with Mr Graeme Nelmes from the defendant company, he now estimated that from between 30 and 40 per cent of available work time on the straddles would be idle time and that did not include entitled breaks.

258 Mr Donohue was again criticised in this report for not seeing the video before commenting on its contents. In Mr Caple's view, the video was a fair representation of at least 80 per cent of the duties and working postures. Putting what he described as "rhetoric" in Mr Donohue's report to one side, Mr Caple said that he and Mr Donohue fundamentally agreed that there are static postures and a wide range of dynamic postures associated with driving the straddle. They were as described in the National Standard for Manual Handling and the Code of Practice for the prevention of occupational overuse syndrome together with other factors such as repetition. The major difference derived from the relevance of the risks factor "duration of task". Mr Donohue appeared to ignore it completely. Mr Caple contended that driving a straddle truck did present a range of unacceptable risk factors from a biomechanical perspective as a result of the design of the truck and cabin in particular. However, the duration and exposure of these factors over a shift were not sufficient to necessarily result in injury.

259 Mr Caple stressed that ergonomics was not a subset of engineering nor was engineering a subset of ergonomics. There were some overlaps in those areas relating to human interaction. Because ergonomics was a multifactorial science based on a broad systems methodology, a key part was establishing what a straddle driver did in his work. Mr Donohue had focused on the poor design of the straddle truck.

260 Mr Caple referred to the medical reports as providing the "objective opinion" of medical practitioners but he did not wish to question their diagnosis nor prognosis. His difficulty was that they operated on the history provided by the driver without any detail of objective tests to substantiate their opinion.

261 Mr Caple reached the following conclusions in this report: (a) the straddle was one of many items of transport that was relatively poorly designed from an ergonomics perspective: others were forklifts, warehouse cranes, minibuses and freight train cabins; (b) the Pt Botany dock had sufficient variety in the range of straddle duties balanced by an estimated 30 to 40 per cent down time to minimise the risks of MSD conditions amongst drivers; (c) there may be some drivers with individual needs who may find aspects of the duties difficult and they would require individual attention. This would be no different to other workplaces.

262 The fourth supplementary report supplied by Mr Caple was dated 12 August 2003 and was said to provide answers to questions raised in correspondence from the solicitors acting for the defendant. In this report, Mr Caple gave further details of his qualifications and made the following statement about the science of ergonomics: The science of ergonomics is a multi disciplinary science that evolved during the Second World War. It primary [sic] involves the principles [sic] disciplines of physiology, psychology and engineering. The main focus of the science of ergonomics, relates to the design of the environment around the needs of the user. In the USA the same science is also known as Human Factors or Human Factors Engineering. The application of ergonomics to industry involves the following of a systematic approach of analysis.

263 Mr Caple said that the ergonomics process required the practitioner to progressively define the variables commencing from the user then moving to the tasks, the equipment, the workstations, work environments and work organisations. There were many interactions that needed to be taken into account together with extensive consultation and interaction with the stakeholders involved in the task or system under review. A similar process had been adopted to address workplace hazards such as manual handling tasks resulting in sprain and strain injuries. The National Standard for Manual Handling and associated Codes of Practice required the employer, in a case such as this, to undertake an assessment of tasks where sprain and strain injuries had been reported using a methodology similar to that adopted by the ergonomics process. The ergonomist facilitates this process and has access to research findings through the literature and through guidance material provided by government agencies. Mr Caple was of the view that Mr Donohue did not follow this process in coming to his conclusions.

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.

265 Using the ergonomic process model previously referred to, Mr Caple regarded the elements of task demand, equipment design, work environment and work organisation were relevant in assessing the risk factors for injury from driving straddle carriers. It was his view that Mr Donohue had wrongly focused on the driving task and the equipment without taking into account the exposure. After reviewing the tasks again and how they were carried out by the driver, Mr Caple stated: From an ergonomics perspective, this task does involve a wide range of movements of the neck and back. Some of these movements are outside the recommended positions for sustained activity. This was taken through the research to be postures where the neck was forwards more than 20 degrees from vertical and where the neck or back were rotated more than 45 degrees from a forward facing position. My observation of the task analysis would indicate that postures outside this range did occur as part of the driving and container handling activities in the straddle carrier. From a manual handling perspective, these postures would be considered risk factors towards the onset of fatigue and with the potential for development of injury if they were sustained for long periods and performed on a repetitive basis over the eight hour shift. However, my analysis of the L62 data and detailed analysis relating to specific shifts indicates that the drivers were not driving the straddles for the eight hour shift minus the meal break. On average, they were driving between 55 to 70 per cent of their shift.

266 Mr Caple pointed out that there were many jobs requiring postures beyond the recommended ranges and the potential for injury was influenced by the duration and frequency of the task. Here, the L62 data indicated that the drivers were not driving full time and thus the injury risk factors were accordingly reduced.

267 Mr Caple assessed the level of vibration to be low, given the unevenness of sections of the roadway used by the straddle. He accepted that when a straddle hit a significant pothole or rut in the road there would be an exposure to vibrations. Drivers were able to easily step outside the cabin into fresh air without having to descend steps or walk a distance from their radio and operating computer systems. It was possible for the operators to take short breaks outside the cabin whilst awaiting further instructions from the control room: these were known as "micro" breaks.

268 Mr Caple said the exposure to the task was determined through analysis of the L62 data which indicated: that on average, 50 to 85 containers were handled per shift by each driver; there were occasions when more than 100 containers were handled, particularly in "yard to yard" where movement distances were shorter, and there were many occasions when less than 50 containers were moved during an eight hour shift. Mr Caple then stated: Observations on site, and viewing the video, would indicate that the exposure to the extreme aspects of the dynamic movements was of short duration and that the static components of their postures were generally held for less than 30 seconds at a time. The majority of their seated posture was in an upright position, either looking towards the direction of travel and driving, or glancing around the yard both in front of and behind the straddle carrier. They would also glance below the straddle carrier as they approached a container area. My analysis of the L62 data for the six drivers would indicate that the down time when they were not actively involved in driving the straddle truck moving containers was between 30 to 45 per cent of their shift. There were many occasions when the down time was in excess of 45 per cent of their shift time. The largest proportion of this down time was at the start and end of the shift plus unaccounted time on either side of their meal breaks. It was also apparent they did not work every shift on the straddle and it was assumed that they were involved in a different range of postures while working in other activities.

269 Mr Caple equated the ergonomic value of rest breaks with micro breaks: both provided opportunities for relaxation of posture and opportunities to stand and stretch to generate blood flow. When drivers were not required to move containers "they are able to adopt an alternative range of postures to relieve any static or dynamic load fatigue particularly in their neck, shoulders and back". There was also an advantage in a rest break of social interaction which had been observed. There were also opportunities to glance through newspapers or magazines while waiting for work, for example, when in a queue or waiting for a hatch to be removed from a ship, the drivers could sit in their cabins for five to ten minutes before being required to move into position for the next movement. The job was not like working on a conveyer belt and needing to maintain a consistent range of movements. The driver of a straddle could indicate using the computer system that he was not to be allocated a container. The L62 analysis indicated there were a number of micro breaks during a shift. To that extent the drivers had control over their workload.

270 Reference was made to research indicating that changes of posture or micro breaks had greater benefit in avoiding accumulated fatigue than longer breaks, referred to as "rest breaks", after a prolonged period to sustain postures greater than 1.5 to two hours. Ergonomic research recommended that job design should encourage the flexibility for operators to stretch and take micro breaks as they feel they are needed rather than to adopt a prescriptive time base approach to when scheduled breaks are allowed. Natural micro breaks could be utilised when an operator's body felt they were required. An operator could sit in a chair, arch the back, rotate the neck, stretch the arms above the head etc. Other workers, such as those working on a conveyor, would not have the flexibility to take these micro breaks. The research indicated that the operators need to have the power to take micro breaks when they feel they are needed.

271 Mr Caple formed the view that when he was in the straddle overseeing the work, the driver had adopted the more extreme postures to demonstrate the full range of work performed by a driver. He stated that his observation of other drivers did not show the same extreme postures. It was evident that the drivers depended on their peripheral vision for maintaining control of the straddle whilst driving around the yard: they would tend only to glance to their side or down for refining their driving activities. He concluded that the postures observed in the video and the still photographs he took would be representative of those that were able to be adopted by other straddle drivers.

272 The straddle drivers were regarded as skilled at their activities and capable of controlling the large straddles including manoeuvring them through narrow spaces and careful control of the manipulation of 20 foot and 40 foot containers. The straddles were operated using hand/eye co-ordination skills with great dexterity, particularly within the stacking areas. Much of the visual control occurred in frequent glancing at a number of visual cues, particularly for the attachment and disengagement of the straddle on to the locking mechanisms of the container. The majority of a driver's time was spent sitting with his back in contact with the back rest of the chair and glancing around the work environment to control the movement of the straddle across the sites. When leaning over the arm rest of the chair to view the attachment of a container below, the drivers' forearm rested on the chair arm rest and so stabilised the weight of their torso and provided a pivot point for them to lean over without providing static load strain on their back and neck muscles. It was usual for drivers to have one hand on the knob of the steering wheel with the other forearm resting on the arm rest: these postures stabilised the torso while seated in the cabin and assisted in reducing accumulated static fatigue.

273 Mr Caple accepted that his 5 June 2001 report could no longer be considered an accurate representation of the L62 data which had since been corrected. A proper understanding of the L62 data did not fundamentally change Mr Caple's overall opinion that 30 to 45 per cent of the majority of eight hour shifts were spent in down time. He said there were a small number of shifts when this percentage decreased and possibly a larger number of shifts where an even greater percentage of down time was present. The largest proportion of down time appeared to be at the start at the end of the shift and also during prolonged meal breaks. The majority of down time during container handling periods of the shift tended to be of short duration and was noted in the report as micro breaks. The duration of these ranged from less than one minute to over 20 minutes, with the majority being between one and five minutes. These short micro breaks occurred at a time when the drivers were able to relax their posture and relieve any muscle fatigue. The longer breaks enabled a gross posture change when the driver would have been able to stand up and walk around the straddle or leave it for an extended break.

274 Mr Caple said that the seat used in the cabin was equivalent to the type of heavy duty seat designed for cabins in industrial applications such as trucks, earth moving equipment and large tractors, cranes etc. The seats were adjustable and designed to allow the driver to regulate the height and was calibrated towards their body shape and weight. It was accepted that maintenance of the seat would influence whether the various features were operational and easy for the drivers to adjust. Mr Caple said he was in no position to comment on the maintenance or overall standard of the seating at the time the alleged injuries occurred.

275 In relation to the trial seat used in Brisbane and at Pt Botany, Mr Caple identified a number of features and said that, from an ergonomic perspective, these features were considered to be an enhancement of the chair over that supplied with the straddle. He thought that the pivot facility was unlikely to be used by drivers in this particular straddle car design, and it was not considered an enhancement from an ergonomic perspective.

276 The inclusion of a fully rotating seat was likely to introduce a range of hazards from an ergonomic perspective. It was noted that Mr Nelmes had indicated that the cabin fitted to the fifth generation straddle would not be large enough to carry such a workstation in any event. A 90 degree rotating seat with dual pedals was thought to be an impractical option from an ergonomic perspective. It was likely to introduce a range of other visual obstructions and posture compromises which would have little advantage over the current system. Mr Caple thought the drivers would be unlikely to utilise the facility even if it were provided.

277 It was unclear what would be the purpose of fitting mirrors to the cabin. The cabin design required 360 degree scanning around the straddle car area as well as full vision below the cabin where the containers were being handled. Further problems with using mirrors was to introduce inaccuracy in depth perception and would be of no advantage when looking below the cabin. The use of mirrors at the side of the cabin for viewing behind the straddle would be of little value. Overall, the adoption of mirrors would increase risks associated with driving large straddle carriers. 278 In relation to the computer terminal and radio positions in the cabin, Mr Caple said the location of both items were above the head height of the seated driver and required an extended forward reach to manipulate the controls. Whilst neither of these items were in the recommended primary visual or tactile range of repetitive interaction it was noticed that, while there was frequent visual interaction of the computer screen, there was limited tactile input. The duration of interaction with the computer terminal and radio was short and did not involve significant static or dynamic extremes of movement. Relocation of these items might be perceived to be of some reduction in discomfort, but they were not seen to be primary causal factors in the current claims made by the drivers.

279 In oral evidence, Mr Caple said that current thinking was that it was important for people to listen to their own body and to deal with accumulation of stress. Exercising and stretching was a good idea but when that was to be done was best left to the individual rather than enforced at a particular time. His conclusion that 30 to 45 per cent of the majority of eight hour shifts was spent in down time was derived from a range as low as 20 per cent of the day being spent in down time and up to a high of 90 per cent of the day being spent in down time. There was quite a range. There was a potential within each individual's working time to have periods of intense working and periods of intense non-working, but there was a more random scatter of short breaks occurring. Mr Caple emphasised that in reviewing the medical files he was making no medical assessments. As part of the background, he was interested to find out which parts of the body were being reported as being injured and how they came to be reported.

280 As part of the background it was not possible to look at an object and identify the ergonomic problems and then pronounce the solutions to those problems. The process involved consultation with the users of the machinery and to define the problem. People will say why they get pain such as they get a sore neck from driving the truck. A number of people are then asked, and a pattern will be identified where they have all the same sort of problems and that helps define what is the problem and how it might be solved. The tasks are then looked at: consideration is given to a busy day, a quiet day and a usual day to try to build a picture of the job. This process was used to paint a picture to give an idea of the tasks and then allow a look at the way tasks are performed.

281 Mr Caple accepted that he could not make a medical judgement whether someone was in discomfort or pain: that had to be taken on face value. If some people are complaining of discomfort, then the ergonomist has to accept that and move on to see what can be done about making that task less uncomfortable. If you get a pattern, that is a stronger indication that there is a general problem rather than a problem with an individual.

282 In cross-examination, Mr Caple accepted that the National Code of Practice for Manual Handling specified that a means of identifying manual handling tasks likely to be a risk to health and safety required, firstly, an analysis of workplace injury records: secondly, consultation with the employees and thirdly, direct observation or inspection of the task. These three basic steps had been in existence for over 20 years in the legislative environment and had been part of the organisation methodology for an ergonomic approach. Mr Caple accepted that employees were capable of speaking about their workplace problems and, where there was "no blood on the floor", an ergonomist depended upon the employees telling them how they feel doing the work.

283 In obtaining factual information, Mr Caple had not read the six consolidated statements of the witnesses in the proceedings nor had he read the transcript of their evidence. His opinions were based upon what he gleaned from the information that he obtained at the site during his site visit. He did not consult with the union representative and he pointed out that the National Standard did not say the union was the only representative. He had not consulted with the chairman of the Occupational Health and Safety Committee or its members.

284 Mr Caple was not aware that the defendant, in July 2002, had introduced a safety accountability programme and risk assessment teams, but he agreed that this approach was consistent with basic risk management or ergonomics which existed since the early 1980s.

285 Where drivers had made complaints to management about injuries, a proper process required documentation, investigation and corrective actions being identified, implemented and evaluated. Mr Caple referred to this as the "end to end" process of incident reporting.

286 Mr Caple said that overuse injuries were reported in clusters as a result of individuals talking to each other about their problems. Up until that time they may work with discomfort but when they talk amongst themselves they often realise that their colleagues also experience discomfort. It was possible for employees to discount their discomfort until they find it is not an uncommon problem amongst persons similarly employed. Research in Australia suggested that over 50 per cent of the workforce would regularly experience musculoskeletal discomfort but that did not mean that 50 per cent of the workforce were injured. It meant that people coped with discomfort in their own way and, when people were encouraged to report discomfort, that reporting could often occur in clusters. Medical management of these people could determine the outcome of that process. For example, if they were told to receive treatment and take time away from work, some individuals develop psychological overlay and that made their symptoms worse. However, if the management of those symptoms within the workplace was done with compassion and understanding, that tended to result in successful rehabilitation without necessarily taking time away from work.

287 In analysing the workplace injuries, Mr Caple had access to the medical files but had not been provided with the defendant's incident reports. Mr Caple believed he had received the necessary information from the medical files. Mr Caple said that when he had been engaged to prepare his first report he had been told that the straddle drivers were being injured but he could not recall who had told him. He had been told they were reporting musculoskeletal injuries or overuse injuries from driving the straddle. He understood that was the reason behind his engagement to investigate the ergonomic issues associated with the reported injuries.

288 Although he had not previously seen the incident reports, Mr Caple, on being shown such a report, was interested to note that the first aid officer appeared to diagnose the cause of the injury as overuse injury. He had not spoken to the first aid officer in preparing his reports. He thought he had the relevant information from the medical reports. Although he did not criticise the diagnosis of any medical practitioner, he felt that a number of the medical reports did not inform how the injury occurred and what was the cause of it: there were just general statements. A reported injury or incident report should trigger a risk analysis: the incident report was not a risk analysis. Mr Caple had not seen reports from the defendant which had identified injuries from straddle drivers as a growing concern, or suggestions that the Occupational Health and Safety manager would review the driver position and monitor it for similar injuries. He had not been told that, when some drivers returned to work from compensation having experienced injury while driving straddles, and sought a break for exercise as part of the return to work plan, the defendant had declined to accept return to work on those conditions.

289 In reviewing the medical reports, Mr Caple could not remember whether or not he had read a report regarding Mr Howlett prepared by Dr Eagleton, but he had not seen four reports by Dr Bodel. These reports had not been drawn to his attention and he indicated that, for example, a specialist report might be obtained to show the connection between the injury and the driving of the straddles.

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.

291 Mr Caple said that this was not an exact science and he could not say that a certain period of time would or would not prevent an injury: it required ongoing consultation with the drivers and for them to indicate whether the duration was found acceptable or unacceptable. The range of postures adopted needed to be looked at in the context and frequency of duration of the task. It included a consideration of the state of health of the drivers at the time. An holistic view was needed. It may be described as looking at the potential that drivers might be injured while operating the straddle.

292 In relation to correcting his approach to the L62 data, Mr Caple thought he had been given the correct information by Mr Nelmes or Mr Bilston. If, in their evidence, they had denied giving him the correct information he thought it was somebody else from the defendant.

293 It was drawn to Mr Caple's attention that Mr Bilston, in relation to the L62 material, had made no allowance for how much of the time the straddle driver was in a sitting or static position. Mr Caple was asked what allowance he made in his down time or micro breaks assessment for the time the straddle driver is in the static position of sitting, so far as that was a risk factor. Mr Caple stated that posture during down time and micro breaks was at the discretion of the driver: they could choose to sit, stretch or stand. The task did not require them to adopt a specific posture: if they chose to sit, read a paper or drink or eat something that was at their discretion. 294 Mr Caple had not advised the defendant that sitting was a risk factor for neck pain because he was not contracted to provide specific advice for future programmes in the consultancy arrangement - he was preparing reports for the purpose of these proceedings, and in those reports he did refer to the risk factors associated with the viewing requirements performed from a seated position. Sitting at work as a risk factor for neck pain, however, was not specifically referred to.

295 Mr Caple accepted that an abstract of a Dutch study that he had referred to dealt with a group of workers with less job rotation than the straddle drivers and did not deal with straddle drivers. He did not mean to suggest that his own findings were supported by the Dutch article. The study did not involve prolonged periods of static posture with the neck. Mr Caple stated that he was looking for information that related to what was involved in straddle driving where there was frequent looking to the left, to the right, looking down to the left and down to the right, all dynamic movements. He denied using the article to push a particular theory but he recognised that the whole article, now that he had seen the original, was not particularly relevant to straddle carrier driving.

296 Attention was drawn to a report provided by Dr Manohar regarding Mr Howlett. Mr Caple was unsure whether he had seen this report in reviewing the medical files. In that report, Dr Manohar stated that Mr Howlett's injury was reasonably attributed to the nature and conditions of his work as described to him. While Mr Caple agreed that he was in no position to make any comment on the diagnosis, he thought the statement appeared to be based on anecdotal hearsay information. He would make that observation if he felt the statement was not based on some objective investigation. Dr Manohar's view as to the person's state of health was quite separate to coming to a conclusion as to what caused the state of health. He accepted the doctor would have been assisted by seeing the video, and that had occurred. Mr Caple could accept the doctor's view that rotating the neck was a risk for straddle drivers.

297 There was nothing in the literature that Mr Caple had considered which supported his theory that leaning on the wheel and on the arm rest would prevent back pain. There were no research papers referred to in his reports which supported his hypothesis on the effect of micro breaks.

298 Mr Caple's attention was also drawn to research articles that had been referred to stating that static posture was considered of causative importance to disorders of the back, neck and shoulders. Mr Caple said that while he may not have specifically made that statement, he was attempting to cover all of these aspects in his report. He accepted that sitting could be related to pain and be causatively connected to disorders to the back, neck and shoulders - he never doubted that these were all risk factors but he had looked at them all as part of a general analysis.

299 It was accepted as a danger that, where a bonus system is paid, employees might work through breaks they would otherwise take. This was a risk factor that needed to be considered at Pt Botany but it did not necessarily apply that people did not take a break, it needed to be considered. Sometimes fatigue had set in before somebody took a break because they were pursuing the bonus, but Mr Caple had not explored that phenomena in particular at Pt Botany.

300 It was not necessary for the drivers to twist their posture or to have exaggerated neck movements whilst forward travelling but it was put to Mr Caple that was, in fact, what the drivers did. He thought that if they did so, they would miss the opportunity to scan the horizon or other activities around them. There might be twisting of the back greater than 20 degrees whilst driving but it was not of the order of 45 degrees. In one of the studies relied upon by Mr Caple there was a risk if there was twisting more than 45 degrees for the neck and 20 degrees for the back.

301 It was accepted that, if cabin redesign was not possible, then other measures such as shortening shifts or introducing more breaks and exercise periods might be options together with continuing scrutiny. Mr Caple, however, was not briefed for this ongoing task. 302 It was acknowledged that there were potential risks to straddle drivers at Pt Botany due to the movements and postures adopted for driving the straddle. It is a very common set of risk factors to find that people who complain of neck, shoulder and back conditions work in tasks that have static postures and dynamic movements. That potential risk was commonly known in a whole range of industries. Identifying the risk did not mean that the person performing that task was injured. In considering the risks, attention then had to be given to eliminating or controlling the risks. The risks had to be considered not individually but how they interacted - that was the holistic approach.

303 Noel Arnold & Associates was known to Mr Caple as an expert provider of advice on health and safety issues. Mr Caple accepted the description in the Noel Arnold report as the way in which the work was performed by straddle drivers. He could not agree that drivers spent 60 per cent of their time within 70 to 80 degrees rotation, although Mr Caple took no measurement of neck rotation himself. His own view was formed by looking at the video. In his estimate, the neck rotation would be 30 to 45 degrees because the body has swivelled and minimised the degree of neck rotation. Mr Caple had not asked the six witnesses in this case about their degree of neck rotation. What had to be considered was the support from the drivers' right hand being on the steering wheel knob and the left hand giving support on the arm rest. Mr Caple accepted that drivers who drove with their left hand would not have the same support. He was unaware whether Mr Watson was a person who drove with his left hand.

304 The arrangements under the 1997 enterprise agreement were put before Mr Caple, showing that there were three men for two machines, work rotation and breaks and a total driving time of four hours 40 minutes per shift. Under the September 1998 agreement, the hours of driving increased to seven hours 15 minutes with one break of 45 minutes. Productivity, measured by the number of containers moved, had increased from 12 to 14 containers per hour. Bearing in mind these matters, Mr Caple was reluctant to state that there was an increased risk of MSD injuries for straddle drivers - there was an increase in duration. Before it could be accepted that meant an increase in MSD risks, the situation had to be looked at holistically to see what else they were doing, apart from driving straddle carriers. In a general sense, if both frequency and driving had increased, there would be an increase in terms of MSD risks but there was a whole range of risk factors involved and they all needed to be looked at together. Accepting that Mr Bilston had given evidence that during the period of the new agreement, operational breakdowns had remained static, nevertheless, all that was happening was that the drivers were performing to this higher capacity over a longer period of time but the actual technique and the task handling was exactly the same. The fact that the task was done more frequently over a longer period of time would not necessarily cause an injury: it may or it may not. Ultimately, Mr Caple agreed that the drivers were under greater risk of strain injury than previously.

305 In relation to the literature on ergonomic research, Mr Caple accepted that his conclusion that the actual driving and operation of straddle truck driving was not to be considered unsafe from an ergonomic perspective was his opinion but was not found in the literature. The literature stated that it was foreseeable that some individuals may develop musculoskeletal disorders due to the types of postures adopted by the drivers. The literature did not limit the risk to those with existing MSD conditions but that was Mr Caple's opinion. He thought the literature was "not necessarily" covering what he was covering in this particular instance.

306 It was accepted that the National Standard for Manual Handling obliged the employer to eliminate risk and that obligation was distinct from the obligations of the designer and manufacturer of equipment.

The analysis of the work at Pt Botany did not take into account any analysis of what occurred at the East Swanson Dock or the fact that, between 1995 and 1998 at East Swanson there were three drivers for two straddles working two and a half hours before taking a break with injuries fewer than those reported at Pt Botany.

308 Mr Caple was unaware that straddle drivers, who returned to work with a medical certificate requiring breaks, were not permitted to have those breaks and were required to remain on workers compensation. He was aware that the staffing arrangement at Pt Botany was that the employer enforced "one man one machine". That was evident from the L62 data made available to him. The focus of his work was on the prevention side rather than on the "post injury side", so he did not tend to work directly alongside medical staff in dealing with overuse or MSD injuries.

309 While he would not call into question the medical advice of a practitioner he might disagree on the ergonomics.

310 Mr Caple accepted that it may be correct that his view of the frequency of rest breaks and when they should be taken may be idiosyncratic in light of what was said internally by the defendant, what was said in the Re-Start advice from physiotherapists, and the medical evidence from the orthopaedic surgeon and a general surgeon. Having read the report prepared by Dr Eagleton and the employment history contained within it, he did not have a particular problem with that report and he withdrew any criticism he made of that report. Nevertheless, while he accepted the doctor's medical opinion when Dr Eagleton said the driving position and duties meant the situation for the driver was ergonomically unsound, that was an opinion Mr Caple could not agree with as an ergonomist.

311 Mr Caple accepted the following matters: (a) repetition for straddle drivers had a causal relationship with the potential for MSD; (b) posture for straddle drivers had a causal connection with potential MSD; (c) force required by straddle drivers in operating the controls, relating more to forearm and wrist rather than neck and shoulder, had a causal connection with possible MSDs for straddle drivers; (d) upper limbs had a causal connection with possible MSD for straddle drivers; (e) there was a causal connection between vibration with MSD for straddle drivers; (f) there was a causal connection with static work posture and MSD for straddle drivers. Mr Caple then accepted that a combination of these factors existing together at Pt Botany provided a causal connection with MSDs in straddle drivers.

312 In relation to the information initially used from the L62 data, Mr Caple became aware later that it was inaccurate. No one specifically came to him from the defendant and said, "These figures are absurdly high for down time and cannot be right": he used the original data for calculations and subsequently learned that it was incorrect.

313 In relation to the work covered by the L62, Mr Caple said he selected a sample which he assumed was representative of the data in the L62. He did not ensure that the sample was spread over the three shifts, although he was aware that some shifts were busier than others and that would be reflected in the selected samples. He had not been told about the increase in productivity from March 2000 but the data should have reflected that position. The purpose of the analysis of the L62 was to verify that there were periods of time throughout the shift when the drivers were able to take micro breaks.

314 It was accepted by Mr Caple that as an ergonomist he was not in a position to offer an opinion about how many days per week driving and operating straddles would produce symptoms diagnosed by a medical practitioner, as for example in the case of Mr Howlett. He confirmed that ergonomists did not give opinions as to how many days per week driving a straddle would result in the development of musculoskeletal disorder. Mr Caple was not denying, for instance, whether Mr Howlett was injured or not since that was not his area of expertise. He had been told that some drivers suffered overuse injuries but he was not aware of which part of their anatomy was involved. He therefore referred to these injuries as "alleged", and it was of no significance to him that the workers compensation insurer had accepted liability for the injury. His task was to try to identify the bodily part that was involved and the relationship to the driver's work activity.

315 Attention was drawn to Mr Watson's evidence that said he typically looked to the left when waiting to move off while seated in the straddle and that meant rotating his neck to the left to look. Mr Caple did not dispute that description and the difficulty, but pointed out that the task was not required to be performed that way. The activity was then at the discretion of the driver as to whether he stretches, arches his back, whether he glances - he separated those activities which were task dictated and those activities which were operator controlled. The micro breaks, up to about 30 seconds, provided an opportunity for the operator to generate blood flow through muscle activity. He agreed that in the yard doing truck work a straddle driver could not simply park and ignore the other straddle traffic movements or truck movements taking place.

316 It was also accepted that if the design of the cabin could not be altered then job rotation was an option. Mr Caple said that the development of options, however was part of the consultation process and that might be just one option. Mr Caple also accepted Dr Bodel's opinion that it was most unnatural for people to be driving any sort of vehicle side on to the direction of travel - that opinion was correct in relation to the driving component of the overall job. He also agreed with the general contention of Dr Bodel that it was not smart for anybody working in straddles to adopt the extreme postures for too long and that that could lead to symptoms.

317 In re-examination, Mr Caple again stated that his holistic approach involved discussing the work with the drivers, looking at the task being performed, the equipment they were working with, the environment in which they were working, the organisation of the work they were performing and the interaction between those factors. Adopting this approach, he was not able to say whether the system of work was safe or unsafe. On the interaction between the risk factors, this job contained risks for musculoskeletal injuries. Nobody knew other than the drivers themselves the discomfort they were experiencing in relation to musculoskeletal injury. Their feedback and their participation in the resolution of those discomfort risk factors was where they had an essential control or participation role in the resolution of the discomfort they were experiencing. The resolution of those matters was not something that an expert such as himself could achieve in isolation.

318 His attention to the medical opinions formed did not affect his opinion in a substantive way. He had made it clear that he was not challenging their medical expertise but he questioned some of the single risk profile solutions because they had not adopted the risk assessment approach in reaching their recommendation. It was on this basis he challenged whether or not such recommendations were "necessarily valid".

DEFENCE EVIDENCE 319 Between November 1999 and June 2001, Mr Bilston had been Acting Terminal Manager, Deputy Terminal Manager and finally Terminal Manager at Pt Botany. He spoke of first becoming aware of straddle operations of an another employer from 1989 at Swanson Dock. Over the years the defendant had purchased a number of types of straddle carriers but Mr Bilston believed that the straddles used at Pt Botany were the best available. 320 There were three categories of employees working at the Pt Botany terminal namely, supplementary employees (casuals), permanent guarantee employees and permanent employees. The straddle drivers who had given evidence in these proceedings were all permanent employees of the defendant. The majority of tasks performed at the Pt Botany terminal involved straddle driving. Mr Bilston described the nature of the work and the areas in which it was performed at Pt Botany. He said that permanent employees were generally allocated to perform vessel work while yard and rail work was typically performed by casuals and permanent guarantee employees.

321 The manner of rostered work for straddle drivers prior to the 1998 agreement and after that agreement was described. Under this system, overtime (or extension) was notified by the lunchtime shift to team leaders and, when there was more than one hour of additional work required, a further 20 minute break was taken before the commencement of the extension. If the overtime was less than an hour there was no additional break. In addition to the 45 minute meal, break Mr Bilston said there were other breaks in the work such as for using the toilet, making a telephone call or having a cigarette. There were also breaks when there were operational delays arising from the nature of the work. He described the nature of those breaks in terms that have been already set out in relation to Mr Caple's evidence. Mr Bilston further stated that, during operational delays and other delays, the straddle driver "had an opportunity" to stretch and move around either on the platform of a straddle carrier or out of the straddle carrier, depending on the type of delay.

322 The drivers were not disciplined where there were operational delays and no employee had ever been counselled in relation to taking a break unless the person was considered to be abusing the system by taking excessive breaks. He recalled a period from late October 1999 to early January 2000 where Patrick management thought there was an unofficial industrial campaign involving a "go slow" where straddle drivers and others drove at a very low speed around the terminal. During this period, a notice was issued to employees informing them that working hours were to be strictly adhered to and that disciplinary action would be taken against employees who ceased operations early without permission. Drivers were directed not to leave their equipment if there were breakdowns or difficulties encountered: any breach of the procedure would be considered to be misconduct. During this period, some drivers were counselled in relation to the rate of movements achieved on their shift.

323 Details were then provided about the manner in which the 2001 enterprise agreement operated with an additional 20 minute break in the first part of the shift and the driver being relieved by a "work where required" employee. There was one more person on the team under the 2001 agreement than under the 1998 enterprise agreement. Mr Bilston said it was in a team leader's discretion that, if a work where required employee was trained to operate a straddle, he could be made available to provide relief for straddle operators. There were no appreciable differences in the amount or frequency of operational delays which took place under the 1998 agreement and which now took place under the 2001 agreement.

324 Under the 1998 enterprise agreement, the drivers were eligible for an incentive bonus if more than 150 containers were moved in an 8 hour shift. This applied to work on vessels. In the yard, the drivers were pooled so that every driver had to achieve the target of 85 container moves to obtain the bonus. Mr Bilston's view was that it was easier to achieve bonus working in a vessel gang than working in the yard.

325 The evidence of Mr Nelmes, Mr Wong and Mr Walker was confirmed in relation to the creation of graphs and documents arising from the L62 data. Mr Bilston explained how he randomly chose 12 shifts within a two year period to have the data for each of the drivers to be graphically represented. He confirmed evidence given about the adjustments made to the L62 data so as to more accurately reflect the work performed. Mr Bilston had also conducted a time trial from various points in the terminal which showed a range of driving times from a low of 2 minutes 15 seconds to a high of 2 minutes 53 seconds. He also confirmed instructions he had given to Mr Bryan in relation to the graphs and documents he had produced for the purposes of the proceedings.

326 From mid-December 1999, Mr Bilston had regularly attended the Occupational Health and Safety Committee at the terminal. It was his recollection that there was little or no discussion about the difficulty of adjusting the seats in the straddles although there was discussion about fatigue and issues such as commencement times of shifts and rostering. Continuous maintenance was available so that any problems with seat adjustments would be easily rectified by taking the machine to the maintenance bays. Mr Bilston then described how maintenance services had initially been provided by employees of the defendant and then been contracted to service providers.

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.

328 In August 2000, physiotherapy services were introduced to be used by straddle drivers. These services have been used regularly by some drivers but not by all the drivers. In November 2000, the straddle drivers were issued with a booklet containing an exercise and stretching programme. In July 2001, the exercise booklet was re-issued to all drivers and a refresher course and exercise programme held for the operators. A physiotherapist was engaged to ensure that the drivers were carrying out the exercises correctly. Since July 2001, the defendant had encouraged drivers to undertake stretch exercises and move around the cabin or outside the cabin when there was a short break during the shift.

329 In cross-examination, Mr Bilston accepted that, in his position, while he had often seen the drivers performing their work, that would be over a relatively small time span and he did not see the body postures adopted by them on an ongoing basis. In relation to rotation, the defendant did not police or enforce job rotation but it was available through the discretion of the team leaders. However, from about January 2002, management informed the Occupational Health and Safety Committee that rotation could take place and was encouraged. Rotation was now covered by the enterprise agreement. He accepted that between 1998 and 2000 it was within his power to enforce job rotation. The operation of one man one machine was covered by the 1998 enterprise agreement and was enforced.

330 The various medical reports including those of Dr Bodel were not given to the Occupational Health and Safety Committee. Mr Bilston was unaware that Dr Bodel said it was a common employment practice to give a five minute rest every two hours or rotate every two hours: he thought there were now adequate breaks for the drivers. In relation to light duties, Mr Bilston agreed that the defendant could not allow a 15 minute break every two hours (as suggested by Mr Hargraves' doctor) because the enterprise agreement allowed only one break and there were no light duties available. Mr Bilston however was unable to show a term of the enterprise agreement which prevented a 15 minute break every two hours. There was a time when the policy of providing no light work was enforced and the drivers were told to stay off work until they were fully fit.

331 Mr Bilston said he regarded issues of rotation and breaks in work as industrial issues. This was also the position in relation to the trial of the seat in the cabin. In relation to incident reports, as the Operations Manager, Mr Van Duijn signed those documents. Those reports identified neck injury for straddle drivers becoming prevalent in 1999 and the root cause was identified as straddle driving. These problems had been addressed by the defendant, such as trailing the new seat, later giving physiotherapy and telling the drivers to exercise, but Mr Bilston accepted that the drivers were not told that these injuries were a growing problem. Physiotherapy etc had been introduced because a similar approach had been adopted in Brisbane where they had found neck injuries. Mr Bilston said he did not find out why there were neck and back injuries. Although Mr Bilston was not aware of the term "task sharing", he was aware of the debate about rotation and relief, and accepted that, outside of some shift teams during the charge period the defendant had not allowed rotation.

332 Mr Bilston agreed that there could be shifts when there were no breakdowns of the portainers - there could not be record movements at the terminal if this were not so. He also agreed that, if there was a breakdown, straddle drivers could be transferred to other work areas. There were shifts without lid movements and there were some movements which were not recorded on the computer which generated the L62 data.

333 Mr Nelmes was responsible for technical development of plant and equipment for the defendant and had been involved in the selection and purchase of straddle carriers. The supply contract required the carriers to comply with Australian standards and to have ergonomic, inward facing front mounted cabins. There were various reasons, based on experience of other types of straddle carriers, for purchasing the particular brand of straddle used during the charge period at Pt Botany terminal. Mr Nelmes outlined what he perceived to be the benefits of the particular straddle chosen. Consideration was given to the various features of other straddle carriers available on the market before the decision was made to purchase. Prior to the introduction of fifth generation straddles, WorkCover inspectors had looked at the straddles particularly in relation to access to the cabin. Issues raised concerning compliance with Australian Standards relating to fixed platforms, walkways etc were the subject of an improvement notice, and action taken by the defendant ultimately led to an exemption being granted.

334 Mr Nelmes also gave evidence of the Position Detection System developed by Patricks in order to track all container movements within the terminal. It was this system that generated the information used in the controversial L62 data. The method of operation of this system was explained. Mr Nelmes also explained in detail the manner in which straddle drivers received work and performed their duties which were recorded and became the L62 data.

335 In relation to seating, Mr Nelmes said that the supplier of the straddle did not generally offer a 180 degree rotating seat for the front mounted cabin straddle carrier except where specifically required. In his view, there was no way a rotating seat could be incorporated in the cabins of the third, fourth and fifth generation carriers used at Pt Botany as they were too small. Installing such a seat would require an entirely new cabin at a cost of approximately $145,000 each. He had discussions with terminal operators internationally who pointed out that work interruption flowed from using the rotating seat. There were also perceived difficulties with visibility involved in using the rotating seat. More recent improvements in the seat were difficult because the seat steering column and control pedals were mounted on a common base plate.

336 Details were also provided of the maintenance system available for the straddle carriers which included lubrication and maintenance of the seat adjusting mechanism. Drivers were able to take the straddle to a maintenance bay for adjusting the seats or any other difficulty or could simply report the difficulties for attention.

337 In Mr Nelmes' view, mirrors would introduce distorted perception and create safety issues if introduced on to the straddle carriers. He had been involved in trials of mirrors for cranes and they had not been successful.

338 In cross-examination, Mr Nelmes said that, although he had seen employees performing work on the straddles, he could not give evidence about the postures they adopted throughout the shift. He had performed a small amount of driving himself. He conceded that he could not use the L62 data to express an opinion about ergonomic stress. He also accepted that Mr Magnus knew how to run the computer systems and how the terminal actually operated. He had been told of the rates of movements at other ports but did not find out the length of any driver breaks at other ports. The various ergonomic reports supplied to the defendant, the use of job rotation to relieve repetitive strain injuries and like matters were not part of his responsibility.

339 Mr Van Duijn was Operations Manager at the Pt Botany terminal between October 1998 and December 1999. He had worked for Patrick at Swanson Dock and had experience with various straddle carriers since the 1970s. He explained why, in his view, the straddle used at Pt Botany was better than other types of straddle carriers at Swanson Dock.

340 The 1998 enterprise agreement was a national agreement which applied to Swanson Dock as well as Pt Botany. While there was one rostered meal break, the drivers were permitted to take breaks during the driving runs to go to the toilet: this was permitted at Pt Botany unless taking breaks was abused. Mr Van Duijn monitored the movement of straddles to ensure that they were working and did so by both observation of the work and the computer system recording movements of containers. He recalled periods during 1999 when he thought there was a go-slow campaign during which he threatened to discipline a driver for not driving in accordance with instructions. In his position as Operation Manager and from his own knowledge of straddle operations, he observed a number of breaks which were inherent in the way in which the system of straddle driving operated Drivers stopped for queuing while other activities were performed and waited for portainers to be repaired. He saw drivers sitting and waiting in the straddle cabin or moving on to the platform of the cabin to have a cigarette or climb down to stretch their legs during these periods. If a breakdown was to be for a long period the drivers were temporarily re-assigned to work in the yard. There were more breaks available for the work on vessels than in the yard, while supplementary employees were given work in the yard but usually only worked two or three shifts a week.

341 Mr Van Duijn described how under the 2001 enterprise agreement there was more formal rotation of duties in that there was a seventh gang member on vessel work who provided relief to the straddle drivers as required. There was also an additional 20 minute break in the first driving run during which a relief driver would operate the straddle. There was little need for the straddle driver to use the keyboard of the computer in the cabin or the keypads, although the last four or five digits of a container number would have to be entered. Similarly, there was limited use of the radio although there were some work related and informal conversations. In his experience, Mr Van Duijn had never heard of a swivel cabin, a dual cabin or a double cabin.

342 In cross-examination, Mr Van Duijn said he was unaware of anyone being sent overseas by the defendant to study world's best practice regarding straddle carriers, their seats and internal equipment. He was aware from June 1999 that statistics were being compiled, including statistics on injuries, but he relied on the Terminal Manager to address those matters. While he was aware of team leaders rotating duties, he did not lay it down as a rule and enforce it. Mr Van Duijn thought he could not do anything beyond what was in the enterprise agreement.

343 Mr Rahman was Operations Managers at Fisherman Island Terminal, Brisbane. He spoke of the preference of drivers at that terminal for a particular type of straddle carrier and how, through 1999 to 2000, a new seat had been trialled and its perceived features. In cross-examination, Mr Rahman said that in his position occupational health and safety was not specifically his responsibility - it was a responsibility - but only in a general sense. He had not seen a number of the expert ergonomic reports obtained in relation to the Pt Botany terminal. 344 Mr Eltham had been employed by the defendant since January 2000 in various human resources positions. Between January 2000 and March 2002, he was based at Patrick's Fisherman Island terminal in Queensland. When he first started working with the defendant he learned how to operate a range of machinery including straddle carriers. Although not working as a straddle carrier operator, he was certified to operate a straddle and frequently did so to maintain his level of competency. He obtained a certificate to enable him to operate the carrier, which involved a training programme with both theory and practical components.

345 During the training course he was instructed on adjusting the seat, the features of the seat and the cabin and was encouraged to move around while in the cabin. He gave evidence as to his preference in driving positions: he described some of the postures he adopted while driving the straddle and noted that he could not understand why some of the Pt Botany drivers who had given evidence adopted other postures and he made comments on their evidence in these proceedings. His observation of the operation of straddles in Brisbane was that there were many opportunities for the driver to take a break from the driving posture. He had been to the Pt Botany terminal and observed similar opportunities. In cross-examination, Mr Eltham said he could only comment on how he drove a straddle and he was not aware of how the straddles were driven by the drivers who had given evidence in this case, although in general terms he had observed the work at Pt Botany.

346 Mr Wong, Mr Walker and Mr Bryan gave evidence of their involvement in creating graphs and explanatory material arising out of the L62 data and how some of the adjustments had been arrived at to reflect the work performed by the drivers. It was accepted that they worked on the basis of a number of assumptions, which were taken as correct.

347 The defendant called evidence from Mr Annala, a senior employee of Kalmar Industries which had produced the Kalmar, Sisu and Valmet carriers. In October 2001, he was made vice-president, straddle carriers, and had overall responsibilities for straddle carrier product line profitability, research and development, sales and marketing worldwide. Kalmar had supplied carriers to Patrick or its predecessor companies since approximately 1985 when it first supplied East Swanson Dock. Twenty-nine carriers were supplied between August 1996 and December 2000 for the Pt Botany terminal. Twenty-six of the carriers were described as fifth generation straddles with a front mounted cabin, with the three most recently delivered straddles being sixth generation carriers with a newly designed front mounted cabin. Kalmar had consistently achieved between 50 per cent and 65 per cent market share worldwide for straddle carriers. The design of the straddle carrier was generally carried out in consultation with customers. In the design and manufacture of the straddles Kalmar complied with generic European standards which dealt with industrial equipment. That included a standard on ergonomic principles and the design of the work: these standards were checked with local standards, such as in Australia, when the straddles were being manufactured for that country. Mr Annala gave evidence about the way in which vibration was dealt with and why, for safety reasons, the cabins had been of a front facing design. There were reasons specified for the location of the seat to an inward facing position including safety considerations and visibility. A rotating seat had been available but there were difficulties with it: up until 1995 there was no rotating seat available for the front mounted cabin. He described how rotating seats had proved to be unpopular with clients.

348 The seat provided in the cabin of the straddle was not manufactured by Kalmar but had been purchased from KAB Seating Ltd. There were a number of considerations taken into account in selecting the seating, including comfort and durability. It was apparently thought that because there was hydraulic suspension, there was not a perceived need to provide air suspension in the driver's seat. Between 1994 and 1998, rubber wheel suspension was introduced which was more easily maintained than traditional hydraulic wheel suspension and had fewer environmental risks associated with it. Kalmar recommended that rubber wheel suspension carriers have air suspension seats. There was also a formal feedback and consultation process conducted by Kalmar with its clients.

349 Patrick had been involved in the development of the straddle carrier in a number of areas because of their association over the years with Kalmar. In consultation, Kalmar had provided the seats on recommendation to Patrick including the cabin seat. The sixth generation straddle had a new seat that arose from the same consultation process.

350 Kalmar had been advised of the Re-Start report of January 1998 and gave consideration to its terms. In response to its recommendations and customer feedback a number of modifications were made to the design of the straddle including a wider cabin and easier seat adjustment for height, angle and weight. Easier steering wheel adjustment was involved and the seat adjustment instructions were improved. The cabin was re-designed in 1998 and up until that time the fifth generation carrier was unable to accommodate the 180 degree rotating seat unit. In January 2000, Kalmar was asked by Mr Nelmes to comment on the feasibility of re-designing or removing the steel safety bars on the glass floor of the cabin. Any such change to these critical components meant a total re-design of the cabin. This degree of change was appropriate to be looked at for the next generation of cabin.

351 In oral evidence, Mr Annala confirmed that the rotating seat could not fit in the fifth generation straddle which was operated by the defendant. An advanced design seat by Nelcom (a company acquired by Kalmar in 2001) was of dimensions that could not be fitted in the Kalmar cabin. The training and instructions for the seat and maintenance arising from the Re-Start report were contained in Kalmar's own manual for the sixth generation straddle which was available from 1999. Mr Annala said there were no written standards for the cabins and that Kalmar produced the cabin to meet the needs of the customers.

352 Evidence was given by Mr Davis and Mr Bell in relation to the maintenance contract and maintenance services operated at the Pt Botany terminal. Between September 1999 and early 2000, Mr Davis had been employed directly by the defendants but from early 2000 to January 2001 he worked as a maintenance service manager for the company that obtained the service contract. The work included servicing the straddle carriers. Mr Davis referred to the types of records kept and referred to the system of preventative maintenance and breakdown and repair maintenance. In cross-examination, Mr Davis said that prior to 1998 another maintenance provider was engaged at Pt Botany and he was not involved at the terminal prior to 1999. He had not been told that the seat adjustment was not easy, nor was he told that the height adjustment was a problem or that the backrest levers were stiff. He was aware that considerable adjustments were made to the seats on certain straddles but that was never raised as a design defect. There should not have been a need to resort to tools not kept by the driver in order to adjust the seats: the adjustment should have worked.

353 Mr Bell had been employed by or worked for a contractor for Patrick since March 2001. He worked firstly as a maintenance manager then as an engineering manager at the terminal. He also gave evidence of the maintenance management system and maintenance services, including preventative maintenance for the straddles and how breakdowns and repairs were attended to. He also dealt with the recording of maintenance work including breakdown and repairs and, in particular, those records relating to straddle carriers. In cross-examination Mr Bell said that, when he found levers on the seats were stiff, they were replaced - this could come from overuse because all this equipment had a limited life. The reason why some of these adjustment levers were not easy to operate could be either a design problem, a maintenance problem or abuse. When his attention was drawn to the evidence of Mr Watson about the seat sinking on his straddle, Mr Bell agreed that that should not happen if it was properly designed or maintained. The seat that failed frequently suggested that the repairs to it were not properly carried out.

DELIBERATION 354 It is convenient to deal firstly with the unsafe system of work charge (Matter No IRC 5194 of 2000), as many of the particulars and considerations relevant to this charge will be of significance in relation to the two "plant" charges. The terms of this charge have already been set out but broadly it can be stated that between 26 October 1998 and 26 October 2000, it is alleged that there was a failure to ensure the health, safety and welfare at work of the defendant's employees and in particular the six nominated employees in that there was a failure to provide and maintain a system of work that was safe and without risk to health contrary to s 15(1) of the 1983 Act. There are a number of particulars dealing with some of the formal matters, such as employment and the like, but for present considerations it is to be noted that in paragraph 4 it was particularised that there was 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 injury. Injuries to five of the drivers were then summarised and in paragraph 11 the further failures and/or omissions were said to be any or all of the following, in summary: requiring the working of a full shift apart from one break in the cabin of the straddle; rostering to work a full shift, apart from one break, in straddles; a failure to provide more than one break per shift in operating straddles; failure to provide three employees for every two straddles; failure to rotate regularly, throughout their shifts, any or all of the employees when operating straddles; failure to implement an exercise programme prior to work commencing on shift for those operating straddles; and, a failure to implement an exercise programmes at appropriate intervals throughout shifts for those employees operating straddles.

355 Of some interest are paragraphs 12 and 13 which were in the following terms: 12 There was a causal nexus between the risks to the health, safety and welfare of any or all of the employees as dealt with in paragraph 4, and any, or all of the aspects of the defendant's failure and/or omissions as dealt with in paragraph 11. 13 Additionally, or in the alternative, there was a causal nexus between the injuries to any or all of the employees as dealt with in paragraphs 6 - 10 (i. e. the particularised injuries concerning specified employees), and any, or all, of the aspects of the defendant's failures and/or omissions as dealt with in paragraph 11.

356 Although I will come to the detail shortly, in brief, the defendant's submission focuses upon paragraph 11 and argues that the evidence demonstrates that there were in fact more breaks than the one 45 minute break on each shift (micro breaks and informal breaks for a cigarette, going to the toilet, making a telephone call or visiting first aid): the failure to implement exercise programmes before or during working hours alone would be insufficient to make out the charge. Although not individually addressed, it would appear that the defendant has the same approach in relation to the failure to provide three employees for every two straddles and the failure to rotate regularly through the shifts: the defendant relying upon an asserted discretion in the team leader to rotate a straddle driver with other positions in the gang during the charge period.

357 The charge, in addition, needs to be considered in the context of the evidence surrounding the introduction of straddle cranes at Pt Botany and the system of work adopted during the charge period. The prosecutor relies upon the fact that, until September 1998 and during the early period of the introduction of straddle cranes, there was a lower rate of container movements (that is, productivity), the drivers operated the straddles for only four and a half hours per shift and there was rotation to other work such that there were three employees for every two straddles. During the charge period following the September 1998 enterprise agreement, the shift hours for driving increased, the principle of one man per machine was introduced, there was no system of rotation allowing the drivers to have a break from the cabin, two separate breaks were consolidated into one 45 minute lunch break, a bonus system was introduced to increase productivity and a higher number of container movement per hour was, in substance, achieved.

358 In both the prosecutor's written outline and opening submissions it was made clear that this case was basically concerned with the risk to health and safety as demonstrated by the injuries received by the nominated employees arising from repetitive movements and overuse symptoms due to the manner in which the straddles were operated.

359 The allegation of a risk to health and safety because of repetitive strain injury or MSD raises some novel questions for both the pleading and determination of such a case. In Haynes v CI&D Manufacturing Pty Ltd and anor (1995) 60 IR 149 the Full Court of the Industrial Court, at pages 158 - 159), stated: The general duties created by the Occupational Health and Safety Act, such as in ss 15 and 16, are clearly directed, we think, at obviating 'risks' to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in a particular case to reason from the actual occurrence of an accident, even though causing death or injury, as having the necessary detriment to safety and as to which causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer.

360 That pronouncement of the Full Court has since been followed in numerous cases. It is now regarded as authority for the more shortly stated proposition that the occurrence of an accident may be evidence of the alleged detriment to safety. Most importantly, the Occupational Health and Safety Act does not require that there be an accident before a breach of the Act can be established (Boral Gas (NSW) v Magill (1995) 58 IR 363, especially at 388 per Hill J).

361 That approach is readily understood and applied, for example, where the allegation is that a piece of dangerous machinery has been permitted to operate without guarding so as to pose a risk to the health and safety of employees. As has been discussed in such cases as WorkCover Authority of NSW (Inspector Penfold) v Fernz Contruction Materials Ltd (1999) 91 IR 119), a charge framed in the terms of the Act and particularised as a failure to properly guard a piece of machinery does not require the prosecutor to particularise the manner in which the detriment to safety may be eliminated. As noted in that case, in Vrisakis v Australian Securities Commission (1993) 9 WAR 395, Malcolm CJ held that a defendant in a criminal prosecution was entitled to the particulars of the charge in the same way as a party to civil litigation was so entitled, stating at page 416: In a civil negligence case a defendant is entitled to particulars of what it is said that he should have done but failed to do in the exercise of reasonable care. For reasons I have earlier discussed, the regime for the regulation of Occupational Health and Safety under the Act, and in particular s 15, makes it entirely inappropriate to incorporate procedures which are analogous to civil negligence cases in the present matter.

362 In my view, different considerations to those usually arising may apply in proceedings where the prosecutor alleges that the risk to employees is a repetitive strain type injury. It is abundantly clear, for example, that a quite innocuous piece of machinery, such as a computer keyboard, may pose no inherent risk to employees who use it: much will depend upon the nature of the use as to whether or not there is a risk to employees' health and safety. Similarly, in relation to inherently dangerous pieces of machinery, the focus must be placed on the use of the machinery and the control mechanism adopted by the employer. Thus, in WorkCover Authority of New South Wales v Kevin Curran Pty Ltd [2000] NSWIRComm 55, Maidment J stated: Countless types of machines are dangerous, the motor car is but one example, however, with proper precautions they may be safely used. In Inspector Page v Growth Equities Services Pty Ltd [1994] NSWIRComm 95, Peterson J said: If one contemplates the provision of acid for use in some process in a given operation, then the concern would be that the storage and means of making available the acid to the process would be safe and that proper precautions were taken in relation thereto and the conduct of the process itself. The acid for the purposes of this discussion may be assumed to have an inherent characteristic which is dangerous to humans on bodily contact. It is not the neutralisation of that inherent characteristic to which the section is directed, but the proper management of the substance.

363 Approaching the present prosecutions in this way, despite the expert evidence of Mr Donohue that the cabin of the straddle used by the defendant at Pt Botany was inherently ergonomically unsafe, much will depend upon the control mechanisms exercised by the employer and the use made of that piece of equipment. A computer keyboard used from time to time during the day amid a host of clerical, administrative or other tasks may pose no risk to the user whatsoever. A computer keyboard required to be used day in day out without the relief of other duties, in an environment of inadequate chair or other support may raise a particular set of risks which, over time, may cause injury or detriment to the health of an employee. A straddle crane used for four and a half hours per day with the availability of relief drivers, alternative duties and a number of formal breaks in the work may pose little or no threat of injury to the driver. The evidence of the defendant's expert, Mr Caple, highlights the requirement that in repetitive use/strain cases a range of matters have to be considered before the aspects of the work can be linked to the types of complaints and injuries reported by employees. In the absence of any repetitive strain complaints, it might be assumed that the method of operation of a particular piece of equipment is posing no risk of injury or risk to the health and safety of the employees using that machinery. Mr Caple spoke of looking for a pattern of complaints in order to make the necessary link with the operation of the particular piece of equipment commonly being operated in a workplace. The task is then to see what parts of the job and the method of performing the job seem to be linked with the type of repetitive injury of which there is complaint.

364 The task of identifying potential risk was conceded by Mr Caple as being difficult: robust individuals might be less likely to succumb to repetitive strain type injury and others may be more susceptible while being less robust. He confirmed that he was not able to make a medical judgment on complaints of injury, that they had to be taken at their face value and the role of the ergonomist was then to see what could be done to relieve the situation. Individual complaints may be approached on this basis but, where there was a pattern of similar complaints or injuries, that gave a stronger indication of the existence of a particular problem. Because of the gradual progression of repetitive strain injury there was an accumulation of fatigue. Mr Caple stated that he could not always say when overuse injury began and, unlike a traumatic accident, workplace incident reports were less useful for that purpose. The assessment in which he was engaged was not an exact science and he could not say that a certain period of time would or would not prevent an injury in the type of work performed by straddle drivers. The assessment required ongoing consultation with workers, looking at a potential that there might be an injury while driving a straddle crane. In a similar vein, Mr Donohue said that hazards did not necessarily exist in isolation from one another but they could act in unison creating further generic hazards because of their interaction.

365 It may be peculiar to repetitive strain type injuries which become the subject of a prosecution under the Occupational Health and Safety Act, that indeed an actual detriment to health or an injury is required to be demonstrated in order for the prosecutor to discharge the onus of proof to the requisite standard. This will follow in circumstances where the bare potential for risk unsupported by any other evidence may not be sufficient to sustain a criminal charge. Where the potential or threatened risk crystallises into a real risk there will usually be evidence of some injury or adverse effect on health which supports the charge. The term "health" in this context should be given its ordinary dictionary definition of "soundness of body" rather than confining it to something like "freedom from illness or infection" (see TTS Pty Ltd v Griffiths (1991) 105 FLR 255 at 267 per Asche CJ). It would be quite contrary to principle for a defendant to be found guilty of a breach of s 15(1) of the Occupational Health and Safety Act in circumstances where the detriment could not be clearly identified and where the breach existed in theory only without any evidence of actual risk. The present matter therefore comes to be considered not in the context of the driving of straddles in container ports throughout the world or even throughout Australia, but in the context of the method of operation adopted by the defendant at its Pt Botany terminal during the charge period.

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.

367 Importantly in these proceedings, although there was cross-examination from time to time that suggested that the complaints by the drivers may be due to aggravation of earlier injuries unconnected with straddle driving or as an exaggeration as to time and duration, ultimately, it was never directly put to any of the individual drivers that they were not suffering the symptoms of which they complained. Mr Caple accepted that he was not qualified to challenge the existence of the injuries claimed by the drivers and diagnosed by the medical practitioners: he was "not denying that no-one was injured". Indeed, there is no suggestion in the written submissions for the defendant that these witnesses were untruthful or deliberately misleading the Court in terms of the injuries they claimed and the histories they had given to various medical practitioners. As has been clear in the summary of the evidence, a number of these claims were investigated by medical practitioners engaged by insurance companies to examine the claims, such as Dr Bodel, and liability was frequently accepted in those cases.

368 Dr Bodel did not doubt the genuineness of the injuries which he investigated having regard to the nature of the work, seeing a video of the postures adopted by the drivers and hearing their history. Dr Bodel had seen a number of the drivers for the defendant's workers compensation insurer. He was of the view that no one should be doing this work of straddle driving for an excessive amount of time at any age although he thought that those in the 20 - 30 years of age bracket might cope with the work but it would be unwise to do it every day ad infinitum. He stated that it was not good to use the body in the extreme range for extended periods: it was most unnatural to drive sitting sideways. He noticed that when the driving stopped the drivers stayed in their seats but it was preferable that they moved or walked rather than just sit. He thought a great deal depended on the general physical fitness of a person but, because driving involved excessive postures, a person would not need pre-existing symptoms for problems to develop. He had based his opinions on clinical findings and had advised that there should be breaks from the work and time out of the seat of the straddle. For instance, he regarded the nature of the work as a substantial contributing factor to the current condition and disability of Mr Hargraves and formed the view that his complaints were quite genuine and predominantly work related. He regarded Mr Howlett's symptoms as arising from the nature and conditions of his work, that although he was keen to work he had genuine complaints and genuine pathology in the spine.

369 Dr Eagleton was of the view that Mr Howlett's pain was clearly related to his duties in the straddle and was consistent with the history he had been given. He advised that Mr Howlett should not resume those duties with the same intensity. He had seen the video of the work and he was aware of repetitive movement injuries, having spent more than 30 years in a medico-legal practice. He regarded the position of the driver in a straddle as ergonomically unsound because of the turning and twisting involved. Age and general health was relevant and a fit person was less likely to succumb to these types of injuries. He recommended that the work be broken up to reduce the risk of harm but there was a need for these measures to be trialled to see what relieved the symptoms.

370 Dr Manohar regarded Mr Howlett's injuries as reasonably attributable to the nature and conditions of his work. Dr Daries was of the view that Mr Watson's injury related to his work and was consistent with his examination of Mr Watson and what he had been told about the work by Mr Watson. He was experienced in overuse injuries and had been in general practice for over 36 years. He thought Mr Watson's injuries were caused by his posture. The consultant physiotherapist for Re-Start Consulting reported in relation to Mr Watson and described the repetitive duties and postures adopted in driving the straddle. The physiotherapist recommended that he stand every 30 minutes for at least one minute for relief and that he be given frequent breaks from the seated position. Dr Loeffler was in no doubt that Mr Hargraves' work aggravated his neck pain and recommended other work or re-training. Given the difference in ages and their histories, including the history of aggravation of injuries otherwise unrelated to straddle driving, and bearing in mind not only the medical opinions of Dr Bodel, Dr Eagleton and Dr Manohar in particular, I accept the evidence of the drivers as to the existence of these back, shoulder, arm and neck injuries.

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.

372 The evidence from the experts and from the learned journals to which they frequently referred showed that repetitive body movements of the back and neck as demonstrated in the work performed by straddle drivers at Pt Botany terminal exposed those drivers to the risk of injury. Some research had specifically focused on straddle drivers and other research was more general: the universal finding was that the frequent adoption of extreme postures, especially of the head and neck, rendered the operators at risk of repetitive strain type injury. There was undoubtedly that level of risk when straddle cranes were introduced at the end of 1997 at the Pt Botany terminal. That risk, on the evidence, did not progress to actual soft tissue injury until after the system of work was altered by the 1998 enterprise agreement. In my view of the evidence, it was in this period covered by the charge that the potential risk crystallised into a real risk such as being capable of being the subject of proceedings under the Occupational Health and Safety Act.

373 It is of some significance that by May 2000 in its own publications the defendant regarded itself as being a leader in productivity and efficiency in relation to container movements, a description with which Mr Bilston agreed. As Deputy Terminal Manager, then Terminal Manager, Mr Bilston accepted that one man one machine under the 1998 enterprise agreement was enforced by the defendant as a "reduced manning scale". Mr Bilston accepted that the job rotation by the team leader in this period was not enforced by the defendant but stated it was not discouraged either. Mr Van Duijn accepted that at Pt Botany straddle drivers worked seven and a quarter hours and that the Queensland Occupational Health and Safety authorities had recommended a maximum for static postures and/or repetitive tasks of four hours in any eight hour period. He said the defendant tried to address this and to improve the driver's conditions in the next enterprise agreement. Mr Caple accepted that this ratio of four in eight hours' work was used by other specialists in the occupational health and safety field. Mr Van Duijn was also aware of the increase in reports of driver injury from the incident reports but he did not think that further breaks were warranted nor was job rotation. Mr Bilston accepted that it was the policy of the defendant not to allow a driver to return to work if his medical certificate or advice was that he required regular breaks from the straddle driving task. Those drivers would be returned to workers compensation rather than given work with breaks. He understood that they would be paid a lower rate whilst on workers compensation but did not see that as operating as an incentive to take up full duties and ignore the additional breaks.

374 Mr Donohue's evidence was that the driving position was "posturally unsafe but during his evidence he seemed to accept that a rotating console in the cabin was not possible. It was his view that, even when not engaged in driving, the straddle driver still exhibited unsafe postures. He called into question the assessment of 40 per cent of shift time being idle time, which is a view that obtains some support from the substantial increase in productivity at the terminal following the 1998 enterprise agreement. Mr Donohue identified as a problem prolonged holding of positions and prolonged static effort in the duties and stated that it was ergonomically unsafe to be sitting for so long in the cabin. He confirmed that these hazards did not necessarily exist in isolation from one another but could act in unison, creating further generic hazards because of their interaction. In his view, it did not matter if there were short breaks because the postural variation was simply inappropriate.

375 Although there was much criticism by Mr Caple of Mr Donohue's approach, there was nevertheless a remarkable number of similarities in their overall view on the effect of ergonomic stress. Mr Caple accepted that awkward postures could be MSD risks for the neck, shoulders and back of a seated driver. In his view, the duration and frequency of those postures influenced the potential for the accumulation of fatigue. He identified flexion outside the recommended range in the work performed by the drivers but thought the duration was short. In his view, the actual driving and operation of the straddles was not unsafe from an ergonomic perspective, although it was foreseeable that some individuals, especially with existing MSD, might develop "discomfort" due to accumulated exposure. When pressed in relation to a number of medical opinions, he accepted that those opinions were consistent with his first report on the variety of risks which existed in relation to the driving of straddles. His first supplementary report identified three primary causal relationships between MSD symptoms and the tasks performed by drivers: the aggravation of a previous injury; vibration from the road and potholes; and, the accumulated load on the neck and lower back because of the requirement to look down while attaching containers.

376 Mr Caple agreed that the range of movements and postures adopted by drivers raised risks of possible injury, but the L62 and associated data showed that there were sufficient breaks. In his evidence, he accepted that dynamic movements and static postures were risk factors for the potential onset of MSD. He accepted that the recommended range of neck flexion was exceeded when driving the straddles and that there were risks arising from the posture adopted while driving a straddle cabin leading. He also accepted sitting as a risk factor and the fact that the driver adopted strenuous positions of the trunk and the back. He accepted that a bonus or incentive system may have the effect of encouraging drivers to work through their breaks but he had not investigated that aspect of the work at Pt Botany. He had not read the six witness statements of the drivers tendered in the case or the transcript of their evidence. He had seen the medical files kept by the defendant but not the incident reports that they had maintained over the charge period. He accepted that sitting could be related to pain and causally connected to disorders of the back, neck and shoulder. He accepted that there was an increase in the duration of work between the work performed under the 1997 enterprise agreement and the 1998 enterprise agreement and that, in a general sense, increased the MSD risk but stated that it may not cause injury. Identifying risks did not mean that people performing the task were injured: his role was to draw attention to the risk and eliminate it before there was injury.

377 Ultimately, there appeared to be two factors which influenced Mr Caple: firstly, the fact that there were sufficient informal breaks and micro breaks to reduce the risk of injury to the drivers and, secondly, those breaks left the driver in control giving him a discretion to use it as he chose and therefore being able to change posture, stand, exercise or do any combination of those things which would get the blood flowing and result in a protection from repetitive strain type injury. This evidence establishes, beyond reasonable doubt, the causal connection between the positions adopted by straddle drivers and the injuries they reported.

378 The next issue is how this crystallised and real, rather than merely potential, risk comes within the particulars of the system of work charge. As already pointed out in paragraph 4 of the systems of work charge, the charge was particularised by reference to the risk to 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. These injuries arose from driving the straddle cranes (paragraph 5 of the particulars). On my assessment of the evidence and in the context of the findings I have made in the preceding paragraphs, that particular is made out. I am satisfied on all of the evidence that there was a causal link between the postures adopted by the nominated drivers and the risk of back, neck and shoulder injury. That risk extended to others in the workforce performing straddle work but did not necessarily extend to all employees.

379 The failures or omissions additionally specified in paragraph 11 of the particulars raises other issues. In this paragraph, the failure of the defendant to ensure the health, safety and welfare of its employees in failing to provide and maintain a safe system of work is said to involve failures and/or omissions of one or all of: requiring employees to work for a full shift, apart from one break in the cabin of the straddle; rostering all employees to work for a full shift, apart from one break, in straddles; a failure to provide to any or all of the employees operating straddles more than one break per shift; failing to provide three employees for every two straddles; failure to rotate regularly, throughout their shifts, the employees when operating straddles; failure to implement an exercise programme, prior to work commencing on shift, for the employees operating straddles; and, a failure to implement an exercise programme at appropriate intervals throughout shifts for the employees operating straddles.

380 On examination, these particulars might appear to suffer from the defect identified by Walton, J Vice-President in Fernz. On their face they may appear to be particulars of the way in which the defendant could remedy the detriment to health and safety exposed by the unsafe system of work. If they are properly characterised as such then they are inappropriate particulars for a charge under s 15(1) of the Occupational Health and Safety Act. In that form they do not appear to be the equivalent of an allegation of a lack of a guard, being a particular of an unsafe system of work charge dealing with a piece of machinery. Such a particular specifies why the system of work was unsafe but does not descend into the detail of how the guard should operate. The possible vice in the particulars in paragraph 11 of the system of work charge is that they may descend into the detail of the way in which the system should be remedied and seek to make each particularised step both individually and in combination a breach of the Act such that a failure to adopt any one or all of them would remain a breach of the Act. In this way, the matters set out in paragraph 11 would lose their identity as particulars and assume the character of a prescriptive regime for compliance with the Act.

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.

382 Paragraph 11 of the summons pleaded that the defendant's failures were all or any of the following seven specified matters. I am satisfied that only all of the identified matters, in combination, would operate to ensure the health and safety of the employees. It is on this basis alone that I am able to treat paragraph 11 as particulars and particulars which are established on the evidence.

383 It is to be noted at this point that the prosecutor referred to sub-paragraphs (a), (b), (c), (e), (f) and (g) of paragraph 11, somewhat elliptically, as "Fernz No 1 type failures". The exception is sub-paragraph (d) which is said to be a specified measure or step that should have been taken to prevent or minimise the potential risk. I have already dealt with the concept of minimising risk: the duty under the Act is to ensure the safety of employees - steps which do no more than minimise a risk simply mitigate a failure to ensure the safety of employees. Similarly, by itself, the evidence does not establish a causal link between the failure of provision of three employees for every two straddles and the risk alleged but is only part of an approach which would eliminate the risk of soft tissue injury. This measure may be considered with the other measures as providing, in combination, protection from the risk identified.

384 Further, the reference to a "Fernz No 1" type failure is misconceived. That was an unsafe system of work case relevantly particularised as the absence of a safe system of decanting and a failure to turn off the mixer. Either of those particulars, if adopted, would appear to be effective in ensuring that an employee would not be at risk from the operation of the mixing blades during the decanting process. For reasons already outlined above, the same cannot be said, in isolation, of the various sub-paragraphs of paragraph 11 of the system of work charge in relation to repetitive strain soft tissue type injuries. On the evidence and, in particular, on the expert evidence it has not been established to the requisite standard that each of the alleged failures or omissions by themselves created the risk. Such is the nature of repetitive strain soft tissue type injuries which frequently take time to manifest themselves, that a combination of movements and approaches to overcome the risk may be required.

385 It is to be noted that the defence case concentrated, to a disproportionate degree, upon the alleged failure to provide a break in the shift beyond the 45 minutes lunch break almost to the exclusion of consideration of the other particulars. As detailed in the summary of the evidence, the defendant went to considerable lengths to demonstrate that there were a number of informal breaks (ability to have a cigarette, make a telephone call, go to the toilet, read a paper while queuing or wait for a breakdown to be corrected). The defence submits that on the L62 data, especially as analysed by Mr Caple, there were numerous breaks and in particular "micro breaks" in the work such that the drivers of the straddles were able to obtain relief from the constancy of the extreme postures that were assumed in concentrating on driving activities. It was then submitted that the existence of these "breaks" meant that the prosecution case in relation to these particulars must fail.

386 This defence approach requires that firstly consideration be given to the word "break", in the particulars relied upon by the prosecutor. I have already referred to the manner in which the case was opened by the prosecutor with attention being focused on the previous system of operation prior to the 1998 enterprise agreement, with lower container movements per hour, shorter driving time, three drivers to every two machines, work rotation and two breaks. After September 1998, the system was one man per each machine, a longer driving shift, higher rate of container movements under an incentive bonus scheme encouraging a higher rate of movement and, in fact, essentially no formal or actual system of rotation of duties. The two breaks previously available were consolidated into one break of a total equivalent time of 45 minutes. Thus, it appears that the prosecution case focused upon formal breaks and the frequency of formal breaks rather than the absence of informal breaks and "micro breaks". There is nothing in the evidence which would suggest that prior to September 1998, the drivers were not able to make a telephone call, go to the toilet, visit first aid, read a paper while queuing or wait for a breakdown to be fixed. In addition, the drivers accepted that there were a variety of such breaks although from time to time they were said to be the subject of monitoring (for example, toilet breaks). The focus of the prosecution case therefore was on the lack of frequent formal breaks laid down by the defendant in order to address the risk of repetitive strain soft tissue type injury.

387 In relation to frequent operational delays arising from the nature of the work, the defendant identified those that arose primarily because of delays in the operation of the portainer cranes. These delays included: breakdowns, operational issues with vessels, loading and unloading of bulk cargo, unlashing of containers, the handling of hatch lids, general vessel faults, long travelling of cranes from bay to bay along the wharf, power outages to the portainers or other electrical problems. Delays in respective yard work were identified as arising because of computer failure or waiting for trucks to arrive at the terminal. Delays in rail work arose because of the requirement to stop at traffic lights which were located between the holding bays near the railway track and the yard at Pt Botany. Of this variety of "breaks", the defendant submitted: During the period of these delays the driver had the opportunity to take a break from active straddle driving and to stretch or move around on the platform or (depending on the type of delay) move out of the straddle carrier. In relation to these breaks, in general the drivers' evidence was that they remained in the straddle in a seated position, often with their feet on the pedals and keeping an eye out for other traffic movement. They would maintain their driving posture when they were waiting to move off.

388 The fundamental difficulty for this defence is that the breaks identified, including what was described by Mr Capel as "discretionary" breaks permitting exercise to be performed, were not part of the defendant's system of work to ensure that the straddle crane drivers were not exposed to repetitive strain soft tissue type injuries. The defendant accepted that the L62 data was not collected for the purpose of identifying breaks in the performance of work, or as part of any ergonomic assessment of the work, but was simply work place data that demonstrated the existence of this type of break. The point was made on numerous occasions by Mr Caple: he frequently referred to certain situations appearing to exist from the L62 data which gave the opportunity for the driver to rest from extreme postures and to take relief by way of exercise. There was, however, nothing in the evidence which demonstrated that the defendant structured, imposed or enforced a system of small breaks in order to ensure that the drivers did not succumb to repetitive strain injury: nor did the defendant require the breaks to be used for exercise, change in posture or in any other way designed to relieve muscle stress.

389 The defendant, from the variety of reports it had obtained prior to and during the charge period, had been made aware of the potential for repetitive strain injury because of the postures that drivers would adopt in driving the straddle. It is indicative of the difficult position in which the defendant finds itself in this prosecution that it relies upon the drivers going to the toilet, having a cigarette or making an urgent telephone call as providing the type of alleviating break that might avoid the risk of repetitive strain type injury. The speciousness of this approach is demonstrated by considering how the defendant might ensure the health of the drivers by making, for instance, toilet breaks and smoking (especially for those who do not smoke) breaks a requirement of the task of driving in order to make sure that there was sufficient relief from the postures adopted while driving a straddle. Nor is it believable, on the evidence, that the straddle drivers could take a break whenever they wanted, when the material before the Court demonstrated that the incentive bonus scheme was introduced to increase productivity: it did have that effect, and that gain in productivity was assisted by a system of work which required one man per straddle crane and a longer period of driving than had previously been required.

390 The law in this regard is well settled: in order to meet the requirements of s 15 of the Act, the systems of work must be "coherent and systematic" so that all employees who are performing work on any given site can properly understand what is being required of them. Thus, in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd, the Full Bench after stating this proposition then cited the majority in Cullen v State Rail Authority (1989) 31 IR 207 at 219: In order to ensure such a system was safe as required by s 15, it was necessary for it to lay down, and to police, specific rules and procedures designed to guard against and prevent, amongst other dangers, the type of accident that occurred in the present case. The defendant cannot "ensure" the health and safety of its employees by leaving it to them, during "discretionary" periods or informal breaks and micro breaks, what steps they should take to avoid the risk of repetitive strain injury. This approach of the defendant has even less merit when it is understood that the drivers were not directed in accordance with various steps set out in reports and assessments by experts including medical practitioners which were in the hands of the defendant. It was the obligation of the defendant to work through the system of consultation and investigation referred to by its own expert, Mr Caple, in order to put down and enforce a system of work that would ensure that the straddle drivers were not exposed to repetitive strain injury.

391 The reliance on the number of breaks naturally occurring in the work cycle also has a further difficulty. The defendant appears to rely upon Mr Caple's examination of the L62 data as supporting a proposition that, having regard to the nature of the work, these micro breaks would or should be sufficient to avoid the drivers suffering from a repetitive strain type injury, especially having regard to his observations at the terminal of the duration of the adoption of extreme postures by the drivers. That proposition is in fact no more than a theory: the theory falls to the ground once it is accepted, as I have accepted, that a number of the drivers did succumb to repetitive strain soft tissue type injuries because of their straddle driving duties. That was the evidence of the medical practitioners and Mr Caple accepted their medical opinion. While Mr Caple would prefer to have had more objective evidence of the relationship between the injuries reported and the driving performed, he also accepted that such objective evidence does not exist usually in soft tissue injury. Some of the injuries led to workers compensation claims which were accepted: those claims were examined by medical practitioners, including specialists in their field, and were accepted by experienced workers compensation insurers. I have no doubt that these injuries were causally connected to the straddle crane driving duties required of the employees. Mr Caple's reports did not grapple with the existence of these injuries and what they meant for the system of work at the terminal: even on his approach ultimately he was unable to say whether the system of work was safe or unsafe. Indeed, the submissions for the defendant failed to grapple with the existence of these injuries and was content to rely on the theoretical approach of its expert Mr Caple.

392 It is also to be remembered that Mr Caple adhered to a structured process in identifying and resolving ergonomic problems. That process involved consulting the employees and receiving their complaints especially where a pattern of complaints had emerged. Normally these complaints were accepted at face value and an investigation conducted to link the injuries to identifiable aspects of the work. Mr Caple at no stage explained why, in this case, the complaints of the drivers supported by medical examination were not to be accepted on their face. In many respects, his report turns on doubts he has as to the medical opinions, although he was at pains to state frequently that he had no expertise to call these opinions into question. By reserving his right to comment on the ergonomics of those opinions, Mr Caple has in fact done what he said he was not qualified to do - call into question the medical opinions. It is also significant in dealing with his reports that, unlike the structured process he usually adopted, in this case he did not speak to the drivers about their complaints or consider their evidence. This departure from the usual process cannot be adequately explained by reference to the limited brief he had been given by the defendant - the complaints of the drivers were central to the task because without them there was no immediate need for Mr Caple's reports.

393 A significant proportion of the hearing was consumed with debate about the accuracy of the L62 and related data. The defendant made it clear that the L62 data, by itself, was not a measurement of ergonomic stress but did insist that the data could be used to demonstrate the system of work in operation at the terminal. It was also accepted that a number of reasonable assumptions needed to be made to demonstrate the frequency and duration of breaks and other operational delays which existed within the system of work for straddle drivers. Further, a defence witness, Mr Nelmes, recognised that there were "certain idiosyncrasies" of the particular jobs performed by straddle cranes which had the effect of not all driving time or even down time being captured and reflected in the L62 data. The adjustments which were made, however, were designed to take into account those difficulties and to give a fairly accurate picture of the naturally occurring breaks in the course of the work.

394 The prosecutor challenged the accuracy of the defendant's computer documents including the L62 data. It was said the associated data (the DWERs), being work allocation records, were not always accurate and some deficiencies were exposed in the evidence. Further, the documents did not accurately state the work performed on a particular day but only the allocation of work originally given to a driver. It was said that the L62 and associated data was inherently unreliable in respect of the potential risk in the present case. The records had previously been found to be inaccurate and indeed Mr Caple was engaged on a path based upon wrong data. For instance, no account was taken of time spent moving containers which had not been entered on the computer, or similarly when engaged in searching for lost containers. The variety of problems eventually accepted by the defendant made the documents too unreliable to be used in the way sought by the defendant. Bearing in mind that the source of the information which resulted in the production of this data, so relied upon by the defendant, was not designed for this purpose, and accepting the idiosyncrasies and adjustments proposed by the defendant, nevertheless in a general way that data did give some picture of the nature of the work. The existence of the various types of breaks, many of which were accepted by the drivers in their evidence, were ultimately not sufficient to prevent a number of drivers from suffering repetitive strain soft tissue type injuries. After all that defence evidence is considered, there still remained a failure by the defendant to ensure a safe system of work so that its straddle crane drivers were not exposed to a risk of repetitive strain injuries. The evidence demonstrated the nature of the injuries suffered by straddle drivers and the direct link between the postures adopted whilst driving and the injuries found to exist.

395 The defence relied heavily on Mr Caple's conclusion, based upon an analysis of the L62 and associated data, that the drivers were driving on average between 55 to 70 per cent of their shift. The prosecution strenuously challenged that assessment. While that figure appears quite high, bearing in mind the increased driving time and higher productivity obtained since September 1998, that analysis alone does not establish what the drivers were actually doing while they remained in the cabin of the straddle. I have previously referred to Mr Caple's identification of various times available to a driver to obtain relief from the extreme postures adopted from time to time in performance of the duties and the ability to exercise or stretch during a driving shift. What is ultimately critical in this prosecution is the absence of any system of work which ensured that these naturally occurring breaks were utilised in a fashion which would eliminate the risk of repetitive strain soft tissue type injuries to which the drivers were exposed because of the extremes of posture adopted in the driving task. Some of these postures continued even when no driving or picking up was being performed. The L62 and associated data did not demonstrate the positions adopted during these breaks.

396 It was then suggested by the defence that the medical evidence was much diminished because it relied upon the history given by the drivers to the various medical practitioners and specialists. To the extent that opinions were formed on the basis that the drivers were working without a break except for the 45 minute break, it was submitted that these opinions were thereby flawed. Dr Bodel and Dr Eagleton saw the defendant's video - it demonstrated the postures adopted by drivers in performing their duties. The viewing of the video did not bring about an alteration of their views which were formed on a clinical examination. In addition, these medical practitioners were long experienced in dealing with repetitive strain injury - the history given to them was accepted as being consistent with their examination and diagnosis. The fact of the injuries, which on close cross-examination showed no other cause or an aggravation of a previously unrelated injury, leaves this submission of the defendant without any proper basis.

THE UNSAFE PLANT CHARGES 397 The first plant charge in time (Matter No IRC 6105 of 2000) alleged that, between 16 December 1998 and 29 April 2000, the defendant failed to ensure the health, safety and welfare of all its employees and the six nominated drivers in failing to provide or maintain plant that was safe or without risk to health contrary to s 15(1) of the Act. The particulars alleged a risk of neck, shoulder, spine, upper limb and/or back injuries in relation to the driving of the straddles, and particularised injuries to Mr Crewes, Mr Euers, Mr Hargraves, Mr Howlett and Mr Watson in the same way as particularised in the system of work change. The failures and omissions were further particularised in paragraph 11 to be: 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 and frequency of neck rotation and flexion requirements; providing straddles with a fixed cabin. The summons stated that a causal nexus exists between the risks to health, safety and welfare of the employees as specified in paragraph 4 (the risk of neck, shoulder, spine, upper limb and/or back injuries) and any or all of the defendant's failures or omissions as specified in paragraph 11. In addition, or in the alternative, there was asserted a causal nexus between the injuries to the employees as particularised in relation to each of the individual drivers and any or all of the defendant's failures and omissions as dealt with in paragraph 11.

398 The second plant charge in time (Matter No IRC 6104 of 2000) alleged the same breach of s 15(1) of the Act in the period between 1 May 2000 and about 13 September 2000. The same particulars as adopted in the first plant charge were repeated for the period covered by the second plant charge.

399 In relation to these charges, the prosecutor was permitted to call evidence in relation to the state of the road and the degree of vibration felt in the cabin by the drivers as a result. At the time this evidence was admitted, although not directly particularised, the charge did particularise the risk of neck, shoulder, spine and upper limb and back injuries in relation to this piece of plant. I have no doubt, after a consideration of the evidence, that the constant use of the straddles led to the deterioration of the road and that the defendant had taken a variety of steps to address the issue but nevertheless, leaving an uneven road surface. The defendant's expert, Mr Caple, noted, during the course of a video designed to demonstrate the postures adopted by a driver while working in a cabin, that there was an amount of vibration. Dr Bodel noted that a lot of vibration would tend to aggravate symptoms that he had diagnosed.

400 Mr Caple recommended that a programme of repair and upgrade of the roads should be undertaken especially in areas where the asphalt surface had been rutted due to the repetitive movements of the straddle. The roads were a mixture of surfaces including bitumen, concrete pavers and steel plates. Mr Caple referred to the vibration as primarily the result of "the slightly uneven road surfaces around the site". The prosecution expert, Mr Donohue, agreed with Mr Caple's recommendations in this regard.

401 Mr Bilston gave evidence that during the charge period the defendant had spent in excess of $1.5 million in upgrading the pavement and there was a continuing programme to produce a consistent surface throughout the terminal.

402 The expert evidence accepted that there were methods available to measure the extent of vibration in a cabin but this was not undertaken. The Court is therefore left in the position of having no evidence as to the severity of the vibration in the cabin caused by the road surface and no evidence directly linking such vibration with an identifiable risk to health and safety of a driver. The medical evidence which I have accepted relates to the extreme postures of the drivers and the repetitive nature of the work being causally connected with the injuries suffered. That evidence, in terms, did not identify vibration caused by the road surface, by itself, as a risk to safety. It follows that this part of the prosecution case is not made out.

403 In paragraph 11(a) of the particulars, the allegation was a failure to provide seating in the cabin that ensured health and safety. It was submitted on behalf of the prosecutor that the state of the seat adjustments during the charge period meant that they had a causal nexus with a potential risk faced by the straddle drivers. The potential danger created by the straddle seat was specified as follows: (a) the seats were fixed in the cabin and required the driver to sit 90 degrees or perpendicular to the direction of forward travel; (b) the drivers experienced weight adjustment lever difficulties; (c) the drivers experienced back rest angle adjustment difficulties and stiffness; (d) the drivers experienced height seat adjustment difficulties including that the adjustment simply did not work; (e) the drivers experienced poorly maintained lubricated seats; (f) the drivers experienced inadequate seat suspension.

404 This particular does not seem to relate (nor could it relate) to the more general issue of overuse injuries which is at the forefront of the prosecution's system of work case. The medical evidence did not focus upon the various failures in the seat adjustment mechanisms as being causally linked to repetitive strain injury. This issue therefore needs to be determined on what other evidence was available to support the charges particularised in this matter.

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.

406 Of significance was a document produced by the defendant entitled "straddle truck training programme" which also carried the heading "Trainer guide". This document had pages which bore dates in 1997 and 1998, indicating that it was a document updated from time to time. Attention was drawn to that part of the training guide headed "Theory Note 1". This part of the document was dated 23/8/98 and under the sub-heading "Posture" the following was stated: The most severe problems involved the spine and muscles of the back. Unnatural postures, bad seating and/or lack of operator education in the method of adjusting the seats to suit their own builds, have been found to actually accelerate the deterioration of the intervertebral disc … . Much research/effort has therefore gone into designing appropriate seating. Appropriate seating will help minimise the effects outlined above, while inappropriate seating with promote the ill effects.

407 On the basis of the evidence, which demonstrates a continuing failure during the charge period to be able to properly maintain the seat in the straddle, the complaints made by the drivers, the use made by the drivers of the maintenance depot being ultimately to no avail, and the knowledge of the defendant that bad seating had been found to have adverse effects on intervertebral discs together with the injury actually suffered by Mr Watson satisfies me that this particular has been made out by the prosecutor.

408 The defendant then submits that the extensive records showing maintenance of the straddles, including the seats, during the charge period and evidence demonstrating that the drivers both knew of the availability of maintenance assistance for the seat and had taken advantage of it meant that they had done all that they could practically do, and thus a defence under s 53 had been made out. I am unable to accept that submission. The availability of the maintenance depot and the engaging of maintenance operators to attend to the straddles, including the seats of the straddles, is a mitigating factor when considering the seriousness of the breach but it is not evidence that there was nothing more, practically that the defendant could do to address these problems especially given the defendant's understanding of the significance of the seat to the health and safety of the drivers. There was no evidence that the seats were incapable of repair.

409 The fact that the straddle crane chosen to be purchased by the defendant was carefully considered and was known to have a significant number of beneficial features does not advance the defendant's case under s 53. Evidence of the availability of extensive maintenance facilities does not amount to evidence that it was not reasonably practical for persons to comply with the provisions of the Act. The defendant has failed to adduce sufficient evidence to prove this defence and to discharge the onus upon it in that regard (WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59 especially at [72] - [73; WorkCover Authority (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 at [101]).

410 The other aspect of this particular is the alleged detriment to safety which arises from the cabin being a fixed structure on the straddle rather than rotating. The defendant points to some confusion in the way the prosecutor has approached this particular, but it seems to me that part of the evidence called by the prosecutor was directed to what Mr Donohue regarded as the fundamental flaw in the design of the cabin together with the requirement to look to one side in order to drive forward. Only in very broad and general terms did Mr Donohue address how this might be overcome but that evidence lacked detail. I accept the submissions made on behalf of the defendant that the evidence failed to establish that a cabin with a rotating seat or a rotating platform was available during the charge period, or at least one that could be utilised on the type of straddle being employed at Pt Botany by the defendant. In this respect the prosecutor has failed to make out that part of the particulars.

411 The particulars dealing with access to the radio and access to the computer terminal in the cabin rest upon a series of professional or expert views that their positioning within the cabin required awkward or uncomfortable stretching of the driver's arm in order to utilise these items. There is nothing in the evidence which directly links any repetitive strain injury with the requirement to awkwardly or uncomfortably stretch to reach these items. They are not recorded in the First Aid Book and none of the medical evidence deals with this issue presumably because it was never raised by the drivers as a difficulty. Nothing was established on the evidence as to the frequency and duration of this movement - considerations of real significance when dealing with repetition injuries. With the evidence not rising above a lack of ease, a discomfort or an awkwardness in reaching these items in the cabin the prosecutor has failed to make out its case in relation to these particulars.

412 The next issue is the alleged failure to provide mirrors to reduce the degree and frequency of neck rotation and flexion requirements. The evidence was that mirrors were available and had been used on the same type of straddle crane at other terminals. The point of the use of mirrors was to reduce the frequency of neck movements, but the evidence does not establish that the use of mirrors alone would ensure the safety of the drivers in this regard. This particular also has the difficulty of significantly overlapping with the system of work charge. In addition, there was evidence from both Mr Nelmes and Mr Caple drawing attention to safety risks which attended the use of mirrors, especially in relation to depth perception. Considering the size of the cranes and the loads they were dealing with, mirrors may well have added to the detriments to safety rather than improved the safety of drivers. It would seem at least that there would need to be a trial of the mirrors and close consideration given of the circumstances in which the mirrors should be used. In light of these considerations, the prosecutor has not made out its case in relation to this particular. 413 The second plant charge deals with a period between May 2000 and September 2000 (Matter No IRC 6104 of 2000) and is particularised in precisely the same way as the first plant charge. The same submissions are made by the parties in relation to this period except that the prosecutor raises the alleged risks flowing from the trialling of a new seat in the cabin of the straddle cranes during the charge period.

414 The prosecutor, in addition, submits that the defendant, in introducing a new trial seat in only one straddle, "was not effective in eliminating or minimising the potential risk to health, safety and welfare of the straddle operators". Mr Watson gave evidence that the trial seat was different to the existing seat in that it allowed easy access and was also able to be moved between five and ten degrees to the left during the operation of the straddle. He said that the seat was found to be "extremely uncomfortable to operate", did not swivel between five and ten degrees, the foot peg was not in place and the straddle controls were lowered so that it was extremely hard to reach the controls. The employees and, it would appear, the Occupational Health and Safety Committee rejected the trial seat as not providing an answer to their complaints made against the existing seat.

415 The fact that the trial seat was not accepted by the drivers and the Safety Committee does not mean that use of the seat during the trial was causally connected to any identifiable risk of injury to the drivers. There is nothing in the medical evidence which particularly identified aspects of the trial seat as either being related to back, neck or shoulder injuries nor aggravating any such pre-existing injuries. The prosecutor has therefore failed to establish this aspect of the particulars of the second plant charge, but has established in this period the same aspects of the first plant charge, and has also failed in relation to the same aspects in the first plant charge.

416 In relation to all the charges, I am satisfied on a consideration of the evidence that: (i) the defendant was an employer; (ii) the defendant employed straddle drivers at Pt Botany during the charge periods, including the named drivers, and (iii) the risks which have been identified in the course of this judgment arose at the employer's and the employees' place of work and while the employees were at work.

417 In each of the three contested prosecutions a breach of the Act has been established. All of these matters will be relisted at a convenient time to receive submissions on penalty.

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