Damjanovic v Kah Australia Pty Ltd

"In a case such as this, where there is clear medical evidence of the causative relationship between the tasks undertaken by the plaintiff’s...combined with the evidence of Mr Contoyannis that there were a range of alternative duties or systems available for the defendant to utilise..."

"...had those steps been taken, there would have been a reduction in the risk of injury to the plaintiff."

Case: Damjanovic v Kah Australia Pty Ltd (trading as Bayview Eden)

Date of Judgement: 16 Nov 2017

Court (Location): County Court of Victoria

Expert (for the Plaintiff): Bill Contoyannis, forensic engineer, Dohrmann Consulting

Solicitors: Zaparas Lawyers Pty Ltd (Plaintiff); Wisewould Mahony (Defendant)

Legal Matter: Plaintiff endured pain and suffering, and economic loss due to repetitive bending, lifting and twisting to perform hotel housekeeper duties

Court Decision: Plaintiff awarded $235,000.00

Extracts from Judge O'Neill's comments in relation to evidence provided by expert witness forensic engineer Mr Bill Contoyannis.

Paragraph 35: Evidence was given by Mr Bill Contoyannis, forensic engineer. He has experience in undertaking manual handling risk assessments. He obtained a history that Mrs Damjanovic’s duties at the Bayview Eden included housekeeping and cleaning of seventeen rooms on a shift which allowed about twenty minutes for each room. The tasks included making beds, vacuuming, mopping and general cleaning. She was required to move beds and other items of furniture and to lift and carry bags of linen. She said that the weekends were the busiest days and there was a lot of pressure to get the rooms clean for incoming guests. There was a lot of bending, lifting, twisting and repetitive work involved. Sometimes, on the weekends, there was less time available to clean the rooms.

Paragraph 36: Mr Contoyannis went to the Bayview Eden in November 2015 and inspected the rooms. He was provided with a blank copy of Manual Handling Hazard Identification Worksheet. Once a hazard was identified in the workplace, it was necessary to undertake some sort of risk control. He was then provided with the Hazard Identification Worksheet completed on behalf of the defendant. The document was completed on 19 October 2001 and related to the cleaning duties which were subsequently undertaken by Mrs Damjanovic. On this document, a number of areas of hazardous manual handling were identified, including repetitive and sustained application of force in the activities in the bathroom and bedroom. The document did not identify particular tasks, but rather areas of the rooms where work was performed.

Paragraph 37: Requiring employees to clean seventeen bedrooms and bathrooms over an eight-hour shift would ring alarm bells. There was a significant risk of injury given the tasks were hazardous. Mr Contoyannis noted that the worksheet identified a number of tasks as being risky and a number of tasks as involving high force. He concluded that the risk assessment was totally inadequate. After the assessment, no risk control was referred to as having been undertaken. The Regulations required an identification of the risk, eliminating it if possible, or controlling it, including with instruction and training.

Paragraph 38: Mr Contoyannis said there ought to have been a proper risk assessment and audit carried out. No proper assessment was undertaken, as specific tasks were not identified. The company then should look to implement controls of those tasks which were assessed as being at risk of causing injury. A company should also encourage its employees to report problems. Further, there should be training in manual handling. They should be trained to identify hazards. There should be rotating of the workers and their shifts. This was not undertaken. There should have been another worker present to assist in moving the heavy furniture and the other arduous tasks. He said there ought to have been better supervision to identify hazardous tasks. A person who is bent over will place more load when involved in lifting objects or other activities such as making beds. The cervical spine was vulnerable when arms were extended outstretched and lifting above the shoulder height occurred.

Paragraph 39: Mr Contoyannis said that repetitive tasks create an additional risk factor.

Paragraph 40: In cross-examination, Mr Contoyannis agreed that even the smallest amount of musculoskeletal force in a work-related task could cause injury. If one was to guarantee no exposure to risk, then every such task would have to be eliminated.

Paragraph 41: It was put to Mr Contoyannis that in the course of her evidence, Mrs Damjanovic accepted that she did receive some assistance in some of the tasks. He said he took that on board but that it did not alter his opinion. It was suggested to him that because Mrs Damjanovic did a range of tasks, that was sufficient in terms of rotation. He disagreed. He said some of the hazardous tasks identified were being done for more than two hours over a shift. An employee such as Mrs Damjanovic would keep coming back to the same tasks. He said the aim was to rotate away from duties which were hazardous and caused a risk of injury.

Paragraph 42: Mr Contoyannis said that he did not find any evidence that the employer had attempted to minimise the risk of injury in the work process. Working in pairs could constitute a form of risk control.

Paragraph 120: The next task involved making up the beds. I am satisfied from Mrs Damjanovic’s evidence that this had to be done almost every day and involved different sized beds and, in some rooms, more than one. I am satisfied this required Mrs Damjanovic to lean across in order to ensure the sheets and doonas were properly fitted to the beds. It is difficult to envisage a process when making up a bed to a high standard that there was not a requirement for the mattress to be lifted. To even partly lift a mattress on a large bed is no easy task. It required Mrs Damjanovic to bend in a forward position which, I accept from the evidence of Mr Contoyannis, placed an extra strain on her spine. While both Ms Hluschko and Ms Kumari said that it was not a particularly difficult task and the sheets could be “slid” under the mattress, I prefer the evidence of Mrs Damjanovic that the task was demanding and required her to work in an awkward posture.

Paragraph 126: Of significance, in my view, is the fact that Mrs Damjanovic was allocated seventeen rooms to clean in an eight-hour shift. Allowing half-an-hour for lunch, and a further half-an-hour for toilet and other breaks, would leave approximately seven hours. But that was not the end of the matter. It would be necessary for Mrs Damjanovic to move from one room to another, sometimes encountering a room where the occupants were still present, taking rubbish to a central deposit point, and obtaining and removing linen. The arithmetic would indicate that realistically Mrs Damjanovic would have something between twenty and twenty-five minutes, more likely closer to twenty minutes, for the cleaning of each of the seventeen rooms. On any view, it was a job which required Mrs Damjanovic to work at a fast and efficient pace. Mr Contoyannis said that this pace would cause “alarm bells” to ring. In fact, I am satisfied that it was only because Mrs Damjanovic was a conscientious and efficient worker that she was able to undertake all of these tasks within the time allowed.

Paragraph 129: Mr Contoyannis gave evidence of a range of steps which were available to the defendant to reduce the risk of injury.

Paragraph 130: Those steps were:

(i) Carry out a proper risk assessment and audit of the workplace duties;

(ii) Put control measures in place to reduce or eliminate the risks involved;

(iii) Encourage the employees to report workplace problems;

(iv) Provide training in manual handling and hazard identification;

(v) Rotate the workers;

(vi) Have available to the plaintiff and to other workers, a second worker to assist with the heavier tasks including moving furniture and restocking the linen trolley;

(vii) Providing better supervision of the workers in their duties.

Paragraph 133: There was also the option to the defendant to rotate the duties which Mrs Damjanovic was required to carry out. I accept the evidence of Mr Contoyannis in that regard. The rotation of duties does not involve doing different tasks in each room and then moving on to another room and doing the same tasks. The proper rotation of duties meant the sharing of arduous load placed upon a worker by having other employees assist. There was the option for, at least for a period, Mrs Damjanovic to only do lighter duties in one room and then move to another, and then on an alternative day or days, do the heavier duties, or some similar system.

Paragraph 154: In a case such as this, where there is clear medical evidence of the causative relationship between the tasks undertaken by the plaintiff’s in the course of her cleaning duties, and the injury to her neck and shoulder, combined with the evidence of Mr Contoyannis that there were a range of alternative duties or systems available for the defendant to utilise, it is clearly open, either as a matter of common sense or common knowledge or as an inference to be drawn from the evidence, that had those steps been taken, there would have been a reduction in the risk of injury to the plaintiff.

Full court report can be accessed via the Australasian Legal Institute - Damjanovic v Kah Australia Pty Ltd

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