In Employment Law

“We were pulling a big case that weighed about 6 ton into the wing using the winch. We had a couple of snatch blocks clamped to the side of the ship with a dog and a bolt. You hook on your hook. You’ve got a man out in the square to tell the hatchman when you’ve got it, then the winch pulls that in. Well, this feller walked in between the side of the ship and the case, he’d just come back from lunch, and it squashed him up against the bloody side. Nobody knew he was there until we heard the scream … We knocked off. It was traditional to stop the ship at once and go home.”[1]

The design of shipping and technology on the wharves has changed dramatically over the last 30 years, and the method of handling cargo referred to above has generally disappeared. Containerisation has transformed the way in which waterside workers now load and unload the ships.

As a result the health and safety risks for workers has also changed significantly. In 1945 Dr Ronald McQueen, a medical specialist appointed by the Stevedoring Industry Commission to investigate “malingering” on the Sydney waterfront reported:

“Having found only one of these crafty undesirables among the first 130 cases I examined, I realised I was dealing with quite a unique collection of genuine and serious disabilities. I was forced into a real admiration for a body of men earning a more or less arduous living handicapped by gross and serious abnormalities.”[2]

The fractures and lacerations suffered by men working “under the hook” night and day, loading and unloading cargo into holds, are now far less frequent. Containerisation has, however, brought with it its own peculiar risks and injuries. A recent case for instance in the SA Workers Compensation Tribunal[3] highlighted the need for employers to pay more attention to the impact of new technology and repetitive work on the health of employees.

The case involved a straddle driver. Straddles are the huge machines used to lift, move and stack shipping containers. A straddle crane literally straddles the container, locks onto it, and lifts it. The machine then moves along the wharf on rubber tyres and stacks the container in the appropriate place, sometimes in long rows at a height of three containers per row.

The worker sits in a cabin, approximately 10 metres above the ground. He actually sits at right angles to the direction in which the straddle moves, ie being to the left or right.

The evidence in this case showed that over a period of two years, the worker was required to drive the straddle for about 11 hours during a 14 hour shift. He would have to move about 21 containers per hour, working at a constant intense pace.

As a result, the driver was having to make constant movement of his neck and back, looking 90 degrees to the left and right as well as downwards at the containers. Judge McCusker of the Workers Compensation Tribunal found that the worker’s neck and back was put through the full range of rotation, forward flexion and lateral flexion in carrying out these duties, and that such movements “undoubtedly put the spine and its muscular-ligamentous attachments through rigorous strain and stress throughout that period”.

The Tribunal also found that continued driving over uneven surfaces on the wharves exacerbated the impact on the worker’s spine.

The straddle driver in this case had never suffered neck or back injuries prior to commencing driving the straddles in about 1995. Over a period of 10 years he lodged a number of workers compensation claims for short periods of time off work, in relation to disabilities to his neck and back. These claims were accepted as compensable under the Workers Rehabilitation and Compensation Act 1986 (SA).

In May 2001 the worker suffered a further low back injury. From that time on his treating general practitioner certified that he could not go back to driving the straddle. His claim at this time was then rejected by the WorkCover Corporation.

In the case before the Tribunal medical experts gave evidence for both parties. Dr Colin Mills, Occupational Physician, testified that he had in fact been in the cabins of straddles and was very familiar with this type of work. He was quite clear that the combination of postures required of workers, over an extended period of time, together with the vibration of the straddle, could lead to the progression over time of permanent injuries. In contrast, medical experts for WorkCover considered that the symptoms suffered by the worker, in the absence of any clear signs of degeneration in the spine, were temporary flare-ups only and did not cause any permanent impairment arising from employment. They considered that the worker in this case was fit to return to work as a straddle driver.

The Tribunal found in favour of the applicant worker. Judge McCusker referred to the SA Supreme Court decision of Pham[4] and quoted from the judgment of His Honour Justice Olsson who, in referring to submissions of counsel which he found to be correct stated:

“Rather, she said, the correct approach in law was, given that there was a reasonable body of medical evidence which indicated that it was possible that such a causal link existed, did the evidence as a totality, lead to the inference that, on the balance of probabilities, the disabling symptoms were in fact the consequence of the incident – particularly having regard to the temporal links between the two. Alternatively, she argued, an equally appropriate mode of reasoning was to consider what was the presumptive influence which the relevant sequence of events would naturally inspire in the mind of any commonsense person uninstructed in pathology and then give effect to it in terms of probability, in the absence of conclusive medical evidence denying that conclusion.”

The Tribunal found, having regard to the reasoning referred to above, that the ongoing symptoms in the straddle driver’s neck and lower back were caused by his employment in driving the straddle. Judge McCusker considered that the continuous history of neck and back complaints, supported the inference that employment contributed to his condition. Even though the signs were minimal, it would only require minimal disabilities for a driver to be unfit to drive such machines. The Tribunal found that the worker suffered a 5% permanent impairment of the neck and 10% permanent impairment of the lower back arising from his work over time as a straddle driver.

The health and safety risks involved in operating the straddles has also been the subject of a recent case in Sydney,[5] extending over 44 days of hearing, in the New South Wales Industrial Relations Commission. In that case the Maritime Union of Australia prosecuted Patrick Stevedores, alleging that the stevedoring company had breached the New South Wales occupational health and safety legislation. The Union submitted that under the system of operation of the straddle adopted by the employer, drivers were exposed to the risk of neck and back injuries. The union provided evidence of a number of employees who had suffered neck, upper limb and back injuries as a result of such work. It also argued that the employer had failed:

  • to provide more than one break per shift;
  • to rotate employees on a regular basis; and
  • to implement exercise programmes for workers.

The Commission ultimately found that the employer had breached its obligations under the relevant statute in the operation of the straddle cranes.

Such cases emphasise the fact the introduction of new technologies and systems of work, although doing away with work hazards experienced in the past, may themselves give rise to new dangers to the health and safety of employees. Particularly in the case of sustained and repetitive work, resultant injuries may only become apparent over time. It is very important therefore that employers, workers compensation authorities and unions keep detailed records of patterns of emerging complaints and disabilities, so that such risks can be addressed in a timely manner. In this case if the early warnings raised by the union and its members had been heeded, if specialists had been engaged to redesign the cabin and seating arrangements, and if the shift rosters had been changed, then the potential for injury may have been minimised. Cooperation and collaboration between all parties to modify new technology and work practices so as to prevent disabilities, will produce a much better outcome for all concerned.

Graham Harbord of Johnston Withers, was counsel for the applicant worker in the above case at the SA Workers Compensation Tribunal.

This article was published in the Law Society Bulletin in November 2004.

 

[1] Wendy Lowenstein & Tom Hills “Under the Hook” Melbourne Book Workers 1982, page 156

[2] Tas Bull, “Life on the Waterfront” Harper Collins 1998, page 67

[3] Harris v WorkCover Corporation/Allianz Australia Workers Corporation [2004] SAWCT 98

[4] Pham v Workers Rehabilitation & Compensation Corporation (Wingfield Heat Treaters) [1995] SASC 5056

[5] Coombs v Patrick Stevedores Holdings Pty Ltd [2004] NSWIRComm 77 (2 April 2004)

Recent Posts