Deal v Father Pius Kodakkathanath

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal concerning workplace accident compensation and the connections between tasks and anticipated risks. The appellant, a primary school teacher, was injured after falling from a small step-ladder while removing artwork from a wall at the school. Regulation 3.1.2 of the Occupational Health and Safety Regulations 2007 (Vic) requires that an employer ensure that the risk of a musculoskeletal disorder ‘associated with’ a ‘hazardous manual handling task’ is eliminated as far is practicable. At issue was whether ‘associated with’ was limited to require a close connection between the activity and the risk of injury. A majority of the VSCA upheld the trial judge’s conclusion that the appellant’s claim in negligence for breach of statutory duty (viz, the regulations) could not be put to the jury because the regulations did not cover injuries caused by falls, because the activity of manual handling here was insufficiently closely ‘associated with’ the risk of a musculoskeletal disorder.

The Court unanimously allowed the appeal and remitted the matter to the Court of Appeal to be dealt with according to law. Noting that it was not in dispute that removing the artwork was a ‘hazardous manual handling task’ (see [31]–[34]), the plurality (French CJ, Kiefel, Bell and Nettle JJ) held that the risk of a musculoskeletal disorder was associated with the manual handling task here. Disagreeing with the VSCA majority’s ‘close connection’ requirement, the plurality noted that that conclusion seemed to have been ‘influenced more by what [the VSCA majority] considered should be the appropriate scope [of the regulations]’ (at [37]) and their Honours’ concerns over the penal and civil consequences if ‘associated with’ were not limited by a close connection (at [38]). In both instances, those concerns did not accord with the text, context and purpose of the legislation, which was to ‘afford relatively broad ranging protection to employees against the risk of hazardous manual handling tasks’ (at [36], and see [37]–[38]).

In construing the phrase ‘associated with’, the plurality noted that the Court faced a constructional choice between the phrase meaning ‘combined in terms of circumstances’ (that is, the risk of musculoskeletal disorder to an employee carrying out a hazardous manual handling task fell within the regulations whatever the cause of the disorder) or ‘combined in terms of classification’ (that is, the risk of musculoskeletal disorder cannot fall within the regulations unless the risk is caused by one or more characteristics that make a manual handling task a hazardous task): see [39]. For the plurality, four factors pointed in favour of ‘combined in terms of classification’ rather than circumstances, and consequently the regulations require some connection with the hazardousness of a manual handling task. First, the Regulatory Impact Statement noted the regulations aimed to limit the obligation to identify and guard against risks that occupational factors might increase the risk of musculoskeletal disorders occurring during manual handling tasks (at [42]). Secondly, the amendment history suggested that the regulation was recast to more specifically focus on factors to be controlled (see [43]–[44]). Thirdly, confining the regulation to risks of a musculoskeletal disorder caused by something intrinsic to a hazardous manual handling task ensures it does not overlap or conflict with other hazard-specific parts of the regulations as a whole (at [45]). Finally, in general if the regulations were not limited then that would have the ‘remarkable consequence’ that any musculoskeletal disorder suffered in the course of performing a hazardous manual handling task might fall within the regulation regardless of its actual cause, and even if the cause of the accident had nothing to do with the task or its hazardousness (see at [46], with examples). Here, and under this interpretation, it would have been open to the jury to find that the risk of the appellant falling when carrying out the hazardous manual handling task was a risk of musculoskeletal disorder ‘associated with’ that task within the meaning of the regulations (at [48]).

The plurality also rejected the VSCA majority’s conclusion that it was not reasonably practicable for the employer to identify the risk because the risk was caused by the appellant’s specific manner of performing the task which in turn led to the fall, rather than the task’s ‘generic nature’ (see at [49]–[50]): the task was hazardous; it would have been open to the jury to find that the risk arose in whole or in part from one or more factors that made the task hazardous; the invocation of ‘reasonable foreseeability’ made by counsel for the respondent did not aid in this analysis, which was for the jury to decide; where there are multiple ways of carrying out a task it would be ‘contrary to principle and illogical’ to allow an employer to escape responsibility for identifying and guarding against risks by pointing out alternative ways of performing the task without ensuring it will be performed in those ways; that acting without full regard for personal safety in performing a task does not of itself show that the risk is one that could be reasonably practically identified, eliminated or reduced; and that while the test is objective, the respondent did identify the risk of putting the artwork up as a task involving hazardous manual handling (see at [51]–[55]).

Consequently, there was evidence fit to go to a jury from which it could have inferred that it was reasonably practicable for the respondent to identify the task of taking down the displays with a stepladder as a task involving hazardous manual handling, and reasonably practicable for the respondent to take steps to eliminate or reduce the risk which, here led to a musculoskeletal disorder associated with the task (at [56]).

Gageler J agreed with the orders proposed by the joint judges. His Honour noted and emphasised the overarching ‘main duty’ of the employer in s 21 of the Act (that an ’employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health’), read the purpose of the regulations as specifically prescribing how an employer should carry out this main duty in relation to the risks of musculoskeletal disorder causally related to hazardous manual handling, and noted that a construction of each regulation promoting this purpose should be preferred to a construction that would not (at [68]). Here, the regulations do so by identifying hazards, controlling risks and reviewing risk control measures (see [69]–[73]), and on the evidence in the jury was entitled to conclude that the respondent failed to meet these obligations (see at [74]–[77]).

High Court Judgment [2016] HCA 31 24 August 2016
Result Appeal allowed
High Court Documents Deal
Full Court Hearing [2016] HCATrans 135 8 June 2016
Special Leave Hearing [2015] HCATrans 333 11 December 2015
Appeal from VSCA [2015] VSCA 191 24 July 2015
Trial Judgment, VCC
Unreported 2 September 2014
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.