Tregilgas v Victorian Workcover Authority [2021] VCC 1781 (26 November 2021)

“The risks to which the plaintiff was exposed in tyre fitting could have been obviated by Keyesash undertaking a risk assessment consistent with the assessment made by Mr Contoyannis which a reasonable employer would have undertaken and which would have identified the very risks which Mr Contoyannis identified.“

Case: Tregilgas v Victorian Workcover Authority Date of Judgement: 26 November 2021 Court: Country court of Victoria Judge: Her honour Judge Misso Expert: Bill Contoyannis, Biomedical engineer and ergonomist, Dohrmann Consulting. Solicitors: Slater & Gordon Lawyers (for plantiff), Wisewould Mahony (for defendant) Legal Matter: Plantiff suffered injury to the lower back in the course of employment as a tire fitter. Court Decision:  Defendant in breach of both its common law duty of care and statutory duty of care, entitling the plaintiff to an assessment of damages.

Paragraph 43:  After reading the transcript of the plaintiff’s evidence-in-chief and cross-examination, relevant parts of the report of Mr Contoyannis,  and looking at the eleven photographs and the plaintiff’s description of what each photograph demonstrated, I appreciated that the actual parts of the undercarriage of the vehicle on which the plaintiff carried out work was less relevant in importance, but what was very relevant and very important were the postures which the plaintiff needed to adopt in gaining access to those parts of the undercarriage of the vehicle, the tools he needed to use, and the strain which performing that work placed on his spine.

Paragraph 85: In relation to the tasks involved in tyre fitting, Mr Contoyannis recounted what he described as “Assumed Facts” in paragraph 4 of his report. I have compared the content of that paragraph with the plaintiff’s evidence, and I am satisfied that the materials provided to him, summarised in that paragraph, are a reasonably accurate description of the work the plaintiff did in tyre fitting.

Paragraph 86: Mr Contoyannis’ principal report is long and detailed. It contains a distillation of standards referred to in paragraph 6 of his report which led him to deal with the specific tasks he identified which posed a risk of the plaintiff suffering a musculoskeletal injury to his lower back.

Paragraph 89: Mr Contoyannis was of the opinion that there were measures which were available to the defendant to prevent the plaintiff being exposed to the risks which he identified.

Paragraph 92: Mr Contoyannis was of the opinion that the plaintiff was engaged in manual handling tasks consistent with the definitions “application of high force”, “manual handling”, “hazardous manual handling” and “musculoskeletal disorder” in Regulation 5. He was of the opinion that the plaintiff was engaged in hazardous manual handling – the first part of that opinion was directed to the repetitive or sustained awkward postures the plaintiff adopted when doing the adjustments in the wheel alignment work, and the second part was directed to the lifting and carrying in the tyre fitting work. He then referred to the obligation on an employer under Regulations 14 and 15 relevant to the undertaking of a risk assessment and risk control. I think it is tolerably clear, and it will become clearer when I turn to Keyesash’s defence, that there was no significant challenge to the plaintiff’s evidence, and no significant challenge to Mr Contoyannis’ evidence.

Paragraph 94: Mr Contoyannis was then shown the eleven photographs, with a short explanation of what they demonstrated. He said that he was familiar with the wheel aligning work shown in the photographs, and has personally undertaken wheel alignment work of that kind. After viewing the photographs, he made the following observations:

“Okay. You can see the gentleman’s head there is turned to his left as he’s performing the adjustment. That is because he’ll be looking at the laser lines and laser levels to get the feedback of where exactly the alignment should be and that’s a fairly important aspect of that task. So not only does he have to be doing the adjustments of the bolts that we’ve seen in all the subsequent photos but he also has to be looking at exactly what that alignment is and ensuring that as he tightens it, it doesn’t move off alignment as he performs that task.”

Paragraph 122: Her Honour’s conclusion is the subject of an appeal. The issue referred to by her Honour is not relevant to the plaintiff’s case, because there is ample evidence from the plaintiff and Mr Contoyannis that there were reasonable, practical and available means of obviating the risk which the plaintiff submits existed in the work tasks he was required to perform as a tyre fitter and wheel aligner.

Paragraph 125: It is very evident to me that the work tasks involved in tyre fitting required the plaintiff to lift and carry wheels, tyres and to use tools in order to successfully complete jobs of work. I accept the evidence of Mr Contoyannis that the manual handling of tyres from stacking on racks, removing from racks, removing from vehicles, removing tyres from rims, and then returning the wheels and new tyres to vehicles not only involved manual handling as defined in the two sets of Regulations, but also involved hazardous manual handling because of the forces involved in each step of the manual handling involved in those work tasks.

Paragraph 126: The risks to which the plaintiff was exposed in tyre fitting could have been obviated by Keyesash undertaking a risk assessment consistent with the assessment made by Mr Contoyannis which a reasonable employer would have undertaken and which would have identified the very risks which Mr Contoyannis identified. It should have then devised a system of work and employed plant and equipment which were safe and without risk of the plaintiff suffering injury as far as that was capable of being achieved. The risks to which the plaintiff was exposed could easily have been obviated by the implementation of each of the steps which Mr Contoyannis considered were appropriate to eliminate or at least reduce the risk of the plaintiff suffering strain on his lower back. It would have largely, if not completely, removed risk of the plaintiff suffering significant strain to his lower back. These steps appear to me to be reasonable, sensible, practical and available steps in the circumstances.

Paragraph 130: The risks to which the plaintiff was exposed in wheel aligning could have been obviated by Keyesash very simply. It could have installed a four-post hoist, a scissor lift or a pit over which a vehicle could be positioned. Both methods were known to the plaintiff and Mr Contoyannis to be used at other tyre fitting/wheel aligning businesses. The installation of any of these methods would very probably have eliminated the risk of the plaintiff suffering injury to his lower back. Working from a standing position would have largely, if not completely, removed the risk of the plaintiff suffering strain to his lower back. The installation of either of these devices appear to me to be reasonable, sensible, practical and available steps.

Full court report can be accessed via the Australasian Legal Institute – Tregilgas v Victorian workcover authority[2021].