What a Manual Handling Expert Report Should Cover (Australian Workplace Claims)

Manual handling injuries remain one of the most common sources of workplace injury claims in Australia. When liability or causation is disputed, a well-prepared manual handling expert report can narrow the issues considerably. A poorly scoped one can add cost without adding clarity.

This article sets out what a useful report should cover, the framework it should be measured against, the documents the expert needs, and the questions worth putting in the letter of instruction. It is written for solicitors, insurers and WHS managers. It is general information, not legal advice.

The legal framework: a duty to manage the risk

In the jurisdictions that have adopted the model work health and safety laws (including NSW, Queensland, South Australia, Western Australia, Tasmania, the ACT, the Northern Territory and the Commonwealth), the primary duty under the WHS Act requires a person conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, the health and safety of workers.

For manual handling, the WHS Regulations add a specific duty. Under the model regulations, regulation 60 requires a PCBU to manage the risk of musculoskeletal disorders associated with hazardous manual tasks, and lists factors that must be considered: the postures, movements and forces involved, vibration, the duration and frequency of the task, workplace environmental conditions, the design and layout of the work area, the systems of work, and the nature, size, weight or number of the people, animals or things handled. Regulation 61 deals with designers, manufacturers, importers and suppliers of plant and structures.

Victoria has its own framework: the Occupational Health and Safety Act 2004 and Part 3.1 of the Occupational Health and Safety Regulations 2017, which deal with hazardous manual handling (identification in regulation 26, control in regulation 27, and review in regulation 28). The concepts are similar, but the expert should apply the correct legislation for the jurisdiction and the date of the incident.

The code of practice

The Safe Work Australia Model Code of Practice: Hazardous manual tasks gives practical guidance on meeting the regulatory duty. Codes have effect once approved in each jurisdiction, and versions change over time, so the report should identify which code (and which version) applied at the relevant date. In Victoria, the equivalent guidance is WorkSafe Victoria’s Compliance code: Hazardous manual handling.

Codes of practice are not the law itself, but courts can have regard to them as evidence of what is known about a hazard or risk and of the ways it can be controlled. That makes them central to any opinion about whether a system of work was adequate.

Identify, assess, control, review

A sound report follows the same risk management process the regulations require, applied to the task in question.

1. Risk identification. What was the task, as actually performed? The expert should describe the task in concrete terms: the load, the frequency, the heights and reaches involved, the postures, the equipment, the environment and the time pressures. A description drawn only from the position description is rarely enough.

2. Risk assessment. Which features of the task made it hazardous? The code describes characteristics such as repetitive or sustained force, high or sudden force, repetitive movement, sustained or awkward posture, and exposure to vibration. The report should explain which applied, why, and how significant they were.

3. Risk control. What controls were in place, and what else was reasonably practicable? This is usually where the dispute lies.

4. Review. Were controls reviewed when the work changed, after earlier incidents or reports of discomfort, or when new information became available?

The hierarchy of controls

The model WHS Regulations (regulation 36) set out a hierarchy of control measures. Risks must be eliminated so far as reasonably practicable; if that is not possible, they must be minimised by substitution, isolation or engineering controls, then administrative controls, then personal protective equipment, alone or in combination.

In manual handling matters, this usually means asking:

• Could the hazardous task have been eliminated or redesigned?
• Were mechanical aids, adjustable workstations, changes to load size or layout reasonably practicable?
• Were training, procedures, job rotation and supervision used to support higher-order controls, or relied on in place of them?

A report that treats training as a complete answer without considering higher-order controls is unlikely to assist the court.

The documents the expert should review

The quality of an opinion depends on the brief. Typical documents include:

• Position description, job demands or task analysis
• Risk assessments for the task, with dates and any reviews
• Safe work procedures, training records and induction materials
• Incident reports, witness statements and investigation findings
• Photographs, video, plans or measurements of the workplace and equipment
• Maintenance and purchasing records for plant and mechanical aids
• Rosters, production targets and staffing levels
• Prior incident or hazard reports for the same task
• Pleadings, statements of the parties and relevant medical records (to the extent they describe the mechanism of injury)

Where documents are missing, the report should say so and explain any assumptions made.

Questions to put to the expert

Clear questions produce a focused report. Useful questions often include:

1. Describe the task the worker was performing at the time of the incident, and the physical demands it involved.
2. Was the task a hazardous manual task within the meaning of the applicable regulations and code of practice? If so, which risk factors were present?
3. Was the risk of injury reasonably foreseeable to the employer or PCBU at the relevant time?
4. What control measures were in place, and were they consistent with the hierarchy of controls and the applicable code?
5. What additional or alternative controls were reasonably practicable, having regard to the likelihood and severity of harm, the available methods of control, and their cost?
6. Would those controls, if implemented, have been likely to reduce the risk of the injury that occurred?
7. Was the system of work, including training, supervision and review, adequate?

Questions about medical diagnosis or legal liability are for others. The expert should stay within their area of expertise and say so where a question falls outside it.

Expert obligations

The report should comply with the relevant expert code of conduct, for example Schedule 7 to the Uniform Civil Procedure Rules 2005 (NSW) or the Federal Court of Australia’s Expert Evidence Practice Note (GPN-EXPT). In practice, that means setting out the expert’s qualifications, the documents relied on, the facts and assumptions, the reasoning, any limitations, and an acknowledgement of the duty to the court.

Instructing a manual handling expert

InCharge Health Consulting provides independent manual handling, ergonomics and OH&S / safe systems of work expert reports for solicitors, insurers and employers. File-review reports are instructed Australia-wide, with turnaround of about two weeks from receipt of complete papers.

More information: Manual handling expert witness

Elton Smith | eltoncsmith@gmail.com | 0435 805 612