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Deal v Father Pius Kodakkathanath

Deal v Father Pius Kodakkathanath

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HIGH COURT OF AUSTRALIA
FRENCH CJ,
KIEFEL, BELL, GAGELER AND NETTLE JJ
KATHRYN DEAL APPELLANT
AND
FATHER PIUS KODAKKATHANATH RESPONDENT
Deal v Father Pius Kodakkathanath
[2016] HCA 31
24 August 2016
M252/2015
ORDER
1.Appeal allowed.
2.Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 24 July 2015.
3.Remit the matter to the Court of Appeal for determination.
4.The respondent pay the appellant's costs of the appeal to this Court and of the appeal to date in the Court of Appeal.

On appeal from the Supreme Court of Victoria
Representation
A G Uren QC with A D B Ingram for the appellant (instructed by Melbourne Injury Lawyers)
M F Wheelahan QC with S E Gladman for the respondent (instructed by Minter Ellison Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Occupational health and safety – Statutory duty – Occupational Health and Safety Regulations 2007 (Vic), regs 3.1.1, 3.1.2, 3.1.3 – Duties of employers in relation to hazardous manual handling tasks – Where primary school teacher tasked to use step ladder to remove papier mâché displays from pin-board on classroom wall – Where displays unstable or unbalanced, or difficult to grasp and hold – Where task constituted hazardous manual handling task – Where in course of task teacher fell from step ladder and injured knee – Whether evidence capable of supporting cause of action for breach of statutory duty – Whether risk of injury amounted to risk of musculoskeletal disorder "associated with a hazardous manual handling task" – Whether sufficient evidence for jury to infer it was reasonably practicable for employer to identify task as involving hazardous manual handling.
Statutes – Interpretation – Remedial legislation – Occupational Health and Safety Act 2004 (Vic) – Where Act and Regulations intended to protect employees against risk of injury in course of work – Where legislation imposes civil penalties on employers for breach of statutory duty – Whether fact of civil penalty requires narrow interpretation of provision.
Words and phrases – "associated with", "close connection", "combined in terms of circumstances", "combined in terms of classification", "hazardous manual handling task", "musculoskeletal disorder", "real risk", "reasonably practicable", "Shirt calculus".
Occupational Health and Safety Act 2004 (Vic), ss 2(1), 4, 20, 21, 158.
Occupational Health and Safety Regulations 2007 (Vic), regs 1.1.1, 1.1.5, 1.1.7, 3.1.1, 3.1.2, 3.1.3.

FRENCH CJ, KIEFEL, BELL AND NETTLE JJ. This is an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria[1], on appeal from the County Court of Victoria. The appellant's claim at first instance was for damages for a knee injury which she suffered in the course of her employment as a primary school teacher when she fell from a step ladder while removing papier mâché displays from a classroom pin-board. At trial, the appellant alleged that her injury was caused by the respondent's negligence or breach of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] HCA 31
Decision Date: 24 August 2016

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning an injury sustained by a primary school teacher, the appellant, who fell from a step ladder while removing papier mâché displays from a classroom pin-board. The appellant alleged a breach of statutory duty by her employer, the respondent, under the *Occupational Health and Safety Act 2004* (Vic) and the *Occupational Health and Safety Regulations 2007* (Vic). The core of the dispute revolved around whether the task constituted a "hazardous manual handling task" and whether the employer had a duty to identify and mitigate the associated risks of injury, specifically a musculoskeletal disorder.

The legal issues before the Court were whether there was sufficient evidence to support a cause of action for breach of statutory duty, specifically whether the risk of injury was capable of being characterised as a risk of a musculoskeletal disorder "associated with a hazardous manual handling task". The Court also considered whether there was adequate evidence for a jury to infer that it was reasonably practicable for the employer to identify the task as involving hazardous manual handling, and to take steps to eliminate or reduce the attendant risks. The interpretation of remedial legislation, and whether the existence of civil penalties necessitates a narrow construction of statutory provisions, was also relevant.

The Court reasoned that the employer's ability to identify the task of putting up the displays as involving hazardous manual handling was significant. It concluded that a jury would be entitled to consider why, if the employer could identify the risks associated with putting up the displays, it was not reasonably practicable to identify the risks associated with taking them down. The Court held that there was evidence fit to go to the jury from which they could infer that it was reasonably practicable for the employer to identify the task of removing the displays as involving hazardous manual handling and to take steps to eliminate or substantially reduce the risk of a musculoskeletal disorder.

Consequently, the appeal was allowed, the order of the Court of Appeal of the Supreme Court of Victoria was set aside, and the matter was remitted to the Court of Appeal for determination. The respondent was ordered to pay the appellant's costs of the appeal to the High Court and the costs of the appeal to the Court of Appeal to date.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 24 July 2015.

3. Remit the matter to the Court of Appeal for determination.

4. The respondent pay the appellant's costs of the appeal to this Court and of the appeal to date in the Court of Appeal.

Background

Background to the litigation

Regulation 3.1.3 provides that any measures implemented to control risks in relation to musculoskeletal disorders must be reviewed and, if necessary, revised.The facts The appellant was employed by the respondent as a primary school teacher. Her employment contract contained no reference to occupational health and safety issues. From the time of her engagement by the respondent in or about early 2002 until the time of the workplace injury the subject of this proceeding, the appellant taught classes from preparatory grade to grade 6. During 2007, she taught grade 3. On 19 September 2007, it was necessary for her as part of her job as the grade 3 teacher to remove a number of papier mâché displays mounted on large sheets of "stock card" from a pin-board on the classroom wall. The task of attaching such displays to the pin-board and later removing them was one which the appellant had to undertake periodically. There were two sizes of "stock card", each of which was larger than A3 size. The "stock card" was said to be somewhat thicker than "copy paper" but prone to buckle unless supported with at least one hand in the middle beneath. The appellant was only 156 cm tall and could not reach the pin-board from floor level. Accordingly, she used a two step ladder provided by the respondent. The step ladder was of "A" frame configuration of which the top step was 450 mm above the floor. There was a larger step ladder available elsewhere at the school but the appellant said that there was no need for her to use that ladder because she could reach the displays using the step ladder. In practice, the appellant had to set the step ladder at right angles to the pin-board, ascend the step ladder to the top step, reach up above her head and unpin one or more displays at a time, and then carry them as she descended backwards down the step ladder to the floor. On the occasion in issue, the appellant was carrying more than one display at once, and holding them with both hands beneath to prevent them from bending as she descended backwards down the step ladder. At trial she stated that, "[b]ecause I held them underneath and not to the side they did move a little bit. They wouldn't move too much, but probably enough to concentrate on them as well as ... the step". She further deposed that, because the displays were in front of her, "I couldn't literally see down past them" and consequently that she "just went cautiously and tried to feel for the ladder, the step as I went. Each time, I didn't go fast, I was always going slow enough to feel for it, but this time I missed". As a result, she fell, and suffered a knee injury. There were some instructions on the step ladder, of which the appellant was aware and with which she complied. But the respondent had not given the appellant any written warning of the risks of falling from step ladders or that the appellant should not work alone when using the step ladder or of the danger of using the step ladder to perform the task of removing displays from the pin‑board, or any other instructions as to how to perform the task. The appellant gave unchallenged evidence that she had no knowledge of the Regulations or of any assessment undertaken pursuant to the Regulations or of any occasion on which any manual handling risks associated with the placing or removing of such displays had been discussed in a safety context.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, KIEFEL, BELL AND NETTLE JJ (dissent) GAGELER J

Finally, in that connection, it may be observed that while the test of whether it was reasonably practicable to identify and guard against the risk of the appellant falling as she did is an objective test, it is not without significance that the respondent was able to and did identify the task of putting the displays on the pin-board with the use of a step ladder as a task which involved hazardous manual handling[31]. The jury would be entitled to take that evidence into account and to ask themselves why, if the respondent were able to identify the risks associated with putting up the displays on the pin-board, it was not reasonably practicable for the respondent to identify the attendant risks of later taking them down.[31]See above at [20].Conclusion and orders In the result, it should be concluded that there was evidence fit to go to the jury from which the jury could have inferred as a matter of objective fact that it was reasonably practicable for the respondent to identify the task of taking down the displays with the use of the step ladder as a task involving hazardous manual handling and reasonably practicable for the respondent to take steps to eliminate or substantially reduce the risk, which in this case eventuated, of a musculoskeletal disorder associated with that task. The appeal should be allowed. The orders of the Court of Appeal should be set aside and the matter should be remitted to the Court of Appeal to be dealt with according to law. The respondent should pay the appellant's costs of this appeal and the appellant's costs of the appeal to the Court of Appeal to date. Part 3 of the Act prescribes general duties relating to health and safety. Part 3 commences with s 20. Section 20(1) provides:"To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—(a) to eliminate risks to health and safety so far as is reasonably practicable; and(b) if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable." Section 20(2) provides:"To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—(a) the likelihood of the hazard or risk concerned eventuating;(b) the degree of harm that would result if the hazard or risk eventuated;(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;(e)the cost of eliminating or reducing the hazard or risk." Section 21 relevantly provides as what is described in Pt 3 as a "main duty" of an employer that "[a]n 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". Non-compliance is an offence whether or not an employee is injured as a result.

Ratio Decidendi

Legal Principle Established

Established by: GAGELER J

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