VWA v A.C.N.125830015 Pty Ltd & Anor
"I accept Mr Dohrmann’s opinion that there were reasonable alternatives that would permit tyres to be stacked horizontally..."
Date of Judgement: 13 September 2019
Court (Location): Supreme Court of Victoria
Expert (for the Plaintiff): Mr Ted Dohrmann, engineer and ergonomist, Dohrmann Consulting
Legal Matter: Plaintiff was injured while unloading large tractor tyres from the trailer of a truck. Plaintiff suffered an injury to his lower back which has required surgical interventions and the implant of two neuromodulation systems.
Court Decision: On the morning that the trial was due to commence, Plaintiff settled his claims with all defendants. As a result of that settlement, ongoing liability of the Victorian WorkCover Authority (‘VWA’) is for medical and like expenses only. The parties have agreed that the compensation that has been paid is $586,936.14
Extracts from Judge Forbes J's comments in relation to evidence provided by expert witness engineer and ergonomist Mr Ted Dohrmann.
Paragraph 8: Mr Grimes and Mr Dohrmann each gave evidence of their opinion as to alternative methods of loading. Both agreed that a mechanical means of loading that eliminated manual handling was preferable and possible.
Mr Grimes in his first report expressed the view that:
...unloading and loading should be performed using mechanical means (such as forklifts) and be performed with care and control. Lifting and carrying tyres via the inner rim need [sic] to be avoided as this is likely to damage the beads. Tyre handling attachments such as the rubber-coated grabber attachment (like a bale clamp) used by Asixa should be used on forklifts to handle these tyres.
Paragraph 69: The difficulty I have with Mr Grimes’ opinion is that it is based on the facts he was asked to assume: that Asixa always transported tractor tyres horizontally and that it always did so without pallets. As a result, his first report fails to grapple with the fact that the tyres, when transported on a pallet could be loaded and unloaded by a forklift with tines just as easily as with a grab attachment.
Paragraph 71: Mr Dohrmann’s opinion was based on the assumed fact that the tractor tyres had been transported on standard pallets and that Asixa removed the pallet and continued to stack horizontally but directly onto the floor of the trailer. His evidence was that double pallets could have been used and double pallets are very common in the industry. He accepted that a grabber attachment would be an appropriate tool but that vertical stacking with proper restraint was also a reasonable alternative.
Paragraph 72: I accept Mr Dohrmann’s opinion that there were reasonable alternatives that would permit tyres to be stacked horizontally – by plywood extension or by double pallets both of which would have permitted mechanical unloading with or without a grabber attachment. I also accept that vertical loading with proper restraint was a method that could be employed with a lower risk of injury. I have noted above, the worker’s observations regarding vertical stacking by Asixa and note that Bronzewing transported the tractor tyres to their forward destination, stacked vertically and restrained.
Paragraph 73: It was submitted that the purchase of a grabber attachment by Bronzewing would have been a reasonable course for it to adopt. The evidence about this was far from satisfactory. Both Mr Grimes and Mr Dohrmann expressed an opinion about the likely cost. Both initially estimated figures at about $3,000.00. Ultimately Mr Grimes’ estimate was simply based on what he was told by Handling Systems Australia, a distributor in response to a fairly general inquiry. He assumed that the cost he was given was for an attachment similar to the photograph he was provided with. Mr Dohrmann resiled from his original estimate after making late inquiries with Handling Systems Australia. His evidence was that he had been told that attachments with specifications provided by him would cost between $40,000 to $45,000. Asixa provided no evidence of the make and model or the cost of the grabber attachment used by it. Ultimately the disparity in the evidence as to cost and the perilous foundation for the costs estimates don’t permit me to be satisfied that purchase of a grabber attachment was a reasonable response for Bronzewing in response to the risk of injury.
Full court report can be accessed via the Australasian Legal Institute - VWA v A.C.N 125 830 015 Pty Ltd (Previously known as Asixa) & Anor.