When is a safe system of work safe?

10 November 2021

By Sagorika Platel (Associate)

If there was but one paragraph in the judgement of Mourkakos v Cleandomain Pty Ltd [2021] VCC 1648 (Mourkakos) which packs a punch and sets the tone, it would be paragraph 186 where His Honour, Judge Dyer stated, “The standard of care imposed on the defendant is not a standard of perfection. It is a standard of reasonable care”.

The facts

The Plaintiff, Mr Mourkakos (Plaintiff), was a former nightshift cleaning manager of Cleandomain Pty Ltd (Defendant).

In 2017, during a night shift, Mr Mourkakos suffered neck pain and tingling down the fingers of his right arm (Injuries).

Some three days after the onset of symptoms, Mr Mourkakos ceased work for the Defendant.

Mr Mourkakos submitted that his Injuries arose in the course of his employment.

More particularly, Mr Mourkakos alleged that his Injuries were caused by having to get into awkward positions on the floor and exerting pressure through his right arm while fitting drive boards to a ride-on scrubbing machine (T16 machine). The Plaintiff’s evidence was that due to a damaged side skirting gate, he was unable to remove and replace the drive boards with ease and thereby he was deprived of proper safe access to the drive hub area.

The Plaintiff also contended that the strength required to manoeuvre a walk-from-behind scrubber (Clarke Focus) contributed or caused his Injuries. This contention, however, was not pressed to any great extent by the Plaintiff, and therefore the causation component is less clear.

The legal arguments

In summary, the Plaintiff’s position was that the system of work he was required to engage in, namely, being left to his own devices to develop his own method of accessing and fitting drive boards to the T16 machine, was unsafe.

In the alternative, the Plaintiff contended that the “multiple failings by the Defendant should have been foreseeable as a cause of injury to the Plaintiff”.

The judgement

While His Honour accepted that there could be difficulties in attaching the drive board to the T16 machine, and that this task could involve applying force to the Plaintiff’s right arm, His Honour did not accept that the Plaintiff was required to adopt an ‘unusual and awkward posture requiring excessive force’ as a result of a jammed side access door.

The premise for rejecting the Plaintiff’s argument was that His Honour found Mr Mourkakos’ evidence to be unreliable and unpersuasive given the following:

  • No other witnesses gave evidence to support the Plaintiff’s assertion that the side skirting gate was jammed and could not be opened to access the drive board;
  • There was evidence that if the side skirting gate of the T16 machine did collide with an object, it would ordinarily be difficult to close, rather than open;
  • It was unclear to the Court why the Plaintiff’s son, while demonstrating access to the drive board, accessed the T16 machine on the right-hand side as opposed to the left hand side (the side which was said to be damaged); and
  • There was no recorded complaints of damage to the side skirting gate, nor any maintenance on the T16 machine at around the time of the Injury.

Given the above, the matter was decided in favour of the Defendants and the Plaintiff failed to establish liability and causation.

Lessons

Had His Honour accepted that the factual circumstances alleged by the Plaintiff, did in fact occur, such as for example, the Defendant:

  • deprived the Plaintiff of proper access to the drive hub area due to a jammed skirting gate and thereby required him to adopt an unsafe method of work to fit the drive board;
  • failed to act promptly on the Plaintiff’s reports of damage by not taking the machine out of service until it was fixed;
  • did not provide the Plaintiff with a suitable training system which left the Plaintiff to his own devices when changing drive boards; and
  • required Mr Mourkakos to engage in ‘Hazardous manual handling’ within the meaning of the Occupational Health and Safety Regulations 2007 (Vic), and in so doing, failed to conduct a hazard identification, assessment, and so far as was reasonably practicable, control (or reduce) the risk of musculoskeletal disorder associated with a hazardous manual handling.

the Defendant would have been liable at common law and/or under statute for being negligent and/or failing to reduce or eliminate an unnecessary risk of injury to the Plaintiff.

If you experience, or believe you could experience a like situation in your workplace, or you merely want some advice to assess whether your business has safe systems of work in place, please reach out to the friendly and knowledgeable team at Hentys Lawyers.