Deal v Father Pius Kodakkathanath

[2016] HCATrans 135

[2016] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M252 of 2015

B e t w e e n -

KATHRYN DEAL

Appellant

and

FATHER PIUS KODAKKATHANATH

Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 JUNE 2016, AT 10.18 AM

Copyright in the High Court of Australia

MR A.G. UREN, QC:  If your Honour pleases, I appear with my learned friend, MR A.D.B. INGRAM, for the appellant.  (instructed by Melbourne Injury Lawyers)

MR M.F. WHEELAHAN, QC:  If the Court pleases, I appear with my learned friend, MR S.E. GLADMAN, for the respondent.  (instructed by Minter Ellison Lawyers)

FRENCH CJ:   Yes, Mr Uren.

MR UREN:   If the Court pleases, we have handed up to the Court the outline of oral argument.  If I could, in the beginning, take the Court to our submissions at page 6.  Before speaking to those submissions, I wonder if I could mention a matter which seemed to have exercised the court to some degree and also achieved some prominence in our learned friends’ submissions, which is the relevance of the decision of this Court in Naxakis v Western General Hospital.

The court below spent some time in dealing with the application of that case to the present and to whether the trial judge had done the right or wrong thing with reference to the principles expressed in that decision.  It will not, I think, trouble this Court for the hearing of the appeal but it is our position that Naxakis is of no relevance here because Naxakis concerned the issue of when a judge was allowed to take a case away from the jury on the basis that there was no evidence to support the plaintiff’s case. 

The present case is not of that sort.  This case concerns the issue of whether on the true construction of the relevant statute and regulations there was a breach of those for the purposes of the causes of action which were alleged.  So the point is purely one of the construction and application of the statute and the regulations.  It is not a case of whether there was enough evidence to support a case which would otherwise have been good in law if there had been evidence to support it.  So in our submission the relevance of Naxakis in exactly nil and application of the principles in it are not relevant for the purposes of this appeal.

Then if I could take the Court to page 6 of our outline and in paragraph 19 there is set out the provision of the particular regulation which is relevant for the purposes of this appeal.  Could we emphasise, when looking at the regulation in subparagraph (1), the words “ensure”, “risk” and “eliminated”, all of which have resonance in the context of the objects and principles of the Act and of the regulations which the majority of the Court of Appeal set out in their reasons for judgment at appeal book page 507 and following.

If we could take the Court to those pages just for immediate reference because it is a convenient spot to find them and emphasise the strength of the words which are used in both the objects and principles and align them with the regulation which has been referred to a moment ago for the purposes of establishing the statutory context in which the regulation appears.

Our learned friends mention as part of their argument the statutory context and seek to justify the reasons of the majority by reference to those objects but we must say that we think it is not immediately apparent, to say the least, as to why the objects of the Act which are set out so clearly in the decision of the majority lead to the conclusion that the regulation itself on which we rely should be read down to mean something less than what its ordinary meaning provides.  But, in any event, looking at the objects at the bottom of page 8 of the print:

The objects of this Act are –

(a)to secure the health, safety and welfare of employees and other persons at work; and

(b)to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work –

So the word “secure” and also “eliminate” are used.  Then, looking at the following page at section 2(2) of the Act:

It is the intention of the Parliament that in the administration of this Act regard should be had to the principles of health and safety protection set out in section 4. 

Section 4 is also set out and the words which are used and which we would emphasise in paragraphs (1), (2) and (3) are:

(1)The importance of health and safety [measures] requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.

(2)Persons who control or manage matters that give rise or may give rise –

We emphasise the word “may”:

to risks to health or safety are responsible for eliminating or reducing ‑

We emphasise those words again:

those risks so far as is reasonably practicable.

(3)Employers and self‑employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.

FRENCH CJ:   Now, section 2(2) says that regard should be had to these principles in the administration of this Act.  How do they relate to the construction of provisions of the Act or of regulations made under the Act?

MR UREN:   Well, they relate to regulations because ‑ ‑ ‑

FRENCH CJ:   Do we treat them as purposes or objectives of the Act?

MR UREN:   Yes.  They are the objectives of the Act and the purposes of the provisions which are made.  If memory serves me right, although I should have it here, I think in the print of the statute it is provided that the regulations are the method by which the provisions of the Act are to be regarded as carried out.  I think that might be under the reference in the print to section 21, I am not sure.

But in any event, if it is stated by Parliament that it is their intention that in the administration of the Act regard should be had to the principles of health and safety, that sets out no more than in fact one would normally get from section 2 by itself, or section 2(1), because the principles of statutory interpretation require that the objects of a statue be ascertained by the court and then the provisions themselves be construed with those objects in mind and for the purpose of achieving those objects.

Now, in many cases, it is difficult to actually tell what object Parliament had in mind apart from objects of extreme generality.  But in the present case the legislature has provided expressly objects which on ordinary principles of interpretation are also, it would seem, with respect to the specific provision of the Act, that the legislation itself and also subordinate legislation made under its authority be interpreted with these objects as being the touchstone, as it were, of what they are intended to achieve.

If they are intended to achieve these things, then at the very least you would normally think, we would submit, that you certainly would not interpret - the legislation intended to be not only protective, but also proactive in securing protections is in a way which is less than the – sorry, your Honour.

GAGELER J:   I may be wrong, but I think the way it works is that those objects inform the duty that is imposed by section 21 of the Act and then the regulations prescribe a way in which that duty is to be performed.  Is that the way it works?

MR UREN:   Yes, your Honour.  With respect, we think that is what is provided for.  I am sure it is provided for by a note in the print, but I have unfortunately not ‑ ‑ ‑

GAGELER J:   I think the connection is section 158(1)(a) of the Act, which is the regulation‑making power.

MR UREN:   Yes.  It has just been handed to me and I see it, your Honour.

GAGELER J:   Yes, and then that has to be read with regulation 1.1.7, which tells you the effect of the note to which you are referring.

MR UREN:   Yes.  Your Honour is, with respect, quite correct in that respect.

FRENCH CJ:   And I think regulation 1.1.1, which is mentioned in the judgment at page 509.

MR UREN:   Yes, and the objects of the regulations being to further the objects of the Act itself, which is something one would normally think would occur.  If with that in mind we return to the outline, the submissions that we make in the rest of the outline in a real sense are merely the application of stock standard principles of statutory interpretation and that is to say look at the words, look at their ordinary meaning and construe them in the light of the protective objects which the Act so clearly provides for.

In paragraph 21, the point we make there is that this task has been considered by the court to be a hazardous manual handling task and also by the trial judge.  It is perhaps difficult to conceive that the legislature which described the category of tasks within which this falls are as hazardous without it actually involving risk in itself. 

So that where one is doing one of those things which is described as a hazardous manual handling task it must be the view of the legislature at the very least that a risk is involved of injury in the performance of tasks of that description.  This does not mean that one does not have to look at what is actually being done on the ground, as it were, but nonetheless it is of some assistance, we would think, that the legislature has actually designated that tasks of the sort with which the appellant was engaged in are themselves tasks which have a possibility of risk of injury attendant on their performance.

The risk of injury, in our submission, occurs when there is a possibility of injury occurring in the performance of the task and that is the submission we make at the very bottom of page 6 of our submissions.  In this respect, we rely on what was said by the Court of Appeal in Coates’ Case, the relevant passage of which is set out at the bottom of page 6 and at the top of page 7, including relying on what was said by Justice Harper in Holmes v R.E. Spence, that is to say the question in cases such as the present is not whether the detail of what happened was foreseeable but whether accidents of some class or other might conceivably happen and whether there is a practicable method of avoiding injury as a result.  Here, such a practical method or means of avoidance was available.

That passage was not only approved of by the Court of Appeal in Coates’ Case at the place we mention, but also it is consistent with what is said in the New South Wales Industrial Court in Cahill’s Case, which is referred to in our authorities, at paragraphs 301 and 302.  I wonder if I might take the Court to that momentarily – Cahill 182 IR 124.

That case, as a lot of these cases are, is really about sentencing, but in the course of them other principles are referred to and I think at – I hope I have the right reference, but I think in paragraph 301 – yes, I think it is 301 at page 206, the court said – if we can stop here and say this passage, although we will read it now, in fact is of assistance in answering a submission which our learned friends put with respect to how you describe the task itself and whether there is a general genus which has to be looked at rather than what is actually being done, but in any event the court said:

In my opinion, in classifying the risk the way it did, the defendant worked back from the actual incident with the benefit of hindsight and the effect of doing so was to narrow the risk to a degree of preciseness which was impermissible.  In State of New South Wales (NSW Police) v Inspector Covi . . . the Full Bench observed –

after referring to the cases referred to there that  –

It is clear from the foregoing cases that careful attention must be paid to the correct identification of the risk the subject of the charges:  Police Service (No 2) and O’Sullivan make it clear that it is inappropriate to seek to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight:  it is the general class of risk which matters.  The danger repeatedly cautioned against of focussing too much attention on an accident is twofold:  such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation.

As the Full Bench observed in Covi, it is the general class of risk that matters and a misguided focus may not only misdirect an analysis of causation, but also an analysis of reasonable foreseeability in the context of a consideration of the defence under s 28(a) of the 2000 OHS Act.

There was a large amount of evidence indicating an awareness by the defendant that its employees could be placed at risk –

So, it is the “could” which is relevant.  I think the other passage is at page 302 – no, those were the relevant passages.  What has to occur is that you look at whether accidents of some class or other might happen.  Looking at the class rather than at the individual event itself, you also ask in respect of accidents of some class whether they could conceivably happen, and if that is the case, then the regulation requires that something be done for the purposes of ensuring that the risk is eliminated.

In our submission, these are all matters of objective fact.  It is not a question of whether the individual employer was reasonable or otherwise in thinking of something or not thinking of something.  It must be a matter of objective fact as to whether accidents of some class or other might conceivably happen in the context of carrying out a particular task.

If we could then go to our submissions at paragraph 24, what we do there is refer to the answer which the court gave to the question which it posed, related to the proper meaning and application of the regulation.  Bearing in mind the circumstances of this case and also the objects of the statute, and their resonance with respect to the application of the regulations, it is, with respect, impossible, in our submission, to legitimately come to the conclusion which the Court of Appeal did in the middle of 24, when it said:

it is in our opinion consistent with that purpose –

which has just been referred to:

that the Regulations should be construed to require a close connection between the activity and the anticipated risk of harm.

Stopping at that particular reason which the court gave for its ultimate conclusion, it is, we would respectfully submit, quite unclear as to why the regulation should be construed to require a close connection between the activity and the anticipated risk of harm when the objects of the Act are so expressly stated to be so protective of the worker.

FRENCH CJ:   Now, what is the logical analysis of the concept of a close connection between the activity and anticipated risk of harm?  That is taking us back to regulation 3.1.2:

the risk of a musculoskeletal disorder associated with a hazardous manual ‑ ‑ ‑

MR UREN:   Well, the only connection for relevant ‑ ‑ ‑

FRENCH CJ:   Just a minute:

hazardous manual handling task –

When one says “a risk associated with the task”, one thinks in terms of an event which can be linked causally to the task.  There may be a number of causal pathways to an accident occurring which results in a musculoskeletal disorder.  What is one talking about when one is talking about the closeness of connection?  Is one saying that one excludes, perhaps, cases where there are multiple causes such as carelessness on the part of the worker, and so forth?  I am just wondering what the court is actually saying there, or how you construe it.

MR UREN:   We have difficulty in construing it because of the view which we take about what the regulations and the statute is meant to do.  The connection which the ‑ ‑ ‑

FRENCH CJ:   What is one measuring when one is measuring the closeness of a connection?

MR UREN:   Well, they do not explain that.  There is no path of reasoning which comes from the purpose of the Act and regulations to require a close connection.  It is a ‑ ‑ ‑

FRENCH CJ:   Perhaps it means nothing more than, there has to be some threshold level of risk.  In other words, a low risk is not something which has a close connection with.

MR UREN:   I think the reason for the conclusion in fact lies in the next portion of the reasons but I stopped at the moment at the first part because it was said to be consistent with the protective purpose which is supposed to give the highest level of protection, as the Act said, to require a close connection between the activity and the anticipated risk of harm.

FRENCH CJ:   You do not go so far as to say that any accident, any musculoskeletal disorder which occurs as a result of a hazardous manual handling task, falls within the scope of the risk controlled by regulation 3.1.2?

MR UREN:   Well, the answer is yes, but then I will give the reason for what might otherwise seem to be too wide.  Musculoskeletal disorder is defined not just as an injury but as an injury which arises out of manual handling.

FRENCH CJ:   Yes.

MR UREN:   So, although it does sound a bit odd in the ordinary use of English language, but the disorder is an injury which occurs in a particular way.  So you have to exclude those classes of disorder which do not arise out of manual handling for present purposes.

FRENCH CJ:   So any musculoskeletal disorder that arises out of a hazardous manual handling task, do you say that that establishes the existence of the risk which gives rise to liability?

MR UREN:   Not putting it that way but the risk of that must be eliminated because that is what the statue says.  If there is a hazardous manual activity, the risk of a musculoskeletal disorder, that is to say, an injury arising out of a manual handling activity, must be eliminated.  Those are the plain words of the Act.

NETTLE J:   If it is associated with the hazardous manual handling task?

MR UREN:   If it arises from ‑ ‑ ‑

NETTLE J:   ‑ ‑ ‑ and it is associated with.

MR UREN:   Yes, yes, associated with, which gets us to the point of this case is the connecting link or the connection between risk and activity is associated with.

NETTLE J:   Yes.

MR UREN:   The risk must be associated with the activity but associated with is a wider concept than cause.  Now, cause would suit us in one sense because it would clearly seem from the circumstances of this case that there is a causal connection as indeed the majority of the Court of Appeal itself recognised.  There is a very direct causal connection between everything in this case leading up to the injury but the statute itself does not use the word “cause” or “regulation”.  What is required is the elimination of risk of injury associated with.

GAGELER J:   I think this is in your favour and I do not think it is an issue in this case but what it actually says is that the risk has to be eliminated so far as is reasonably practicable, which takes you back to the explanation of that concept in section 20(2).

MR UREN:   Yes, it does.  The present case stops before the reasonable practicability issue.  It does not concern that because that is something - the judge and the Court of Appeal found that the regulation on its true construction did not apply.  So there was no issue about the application of the reasonably practicable issue.

GAGELER J:   How I think it helps you is that trivial or remote risks would be dealt with under that concept, on one view.

MR UREN:   Possibly and possibly also that –it is thought, I think, in some of the cases that you cannot deal with something that is impossible to be seen and therefore the idea is introduced not so much of remoteness but of what was said by Justice Harper whether you can conceive of the risk.  If you can conceive of it, which would seem to us to be a factual matter, then that risk must be eliminated.  So it may be that in that area, as well as in section 20, there are these safeguard ideas, as it were.

GAGELER J:   Can I just follow up the factual question?  We are focusing here on regulation 3.1.2, which is about control of risk.  The preceding sub‑regulation is 3.1.1, which involves the identification of risk.  As a matter of fact, did that occur here?

MR UREN:   No – or yes, depending on the view you take of the evidence.  But we think the answer is no, because there was evidence in one of the respondent’s documents of risk assessment of manual handling tasks and I think it was assessment 17, if my memory serves me right, which identified a risk in respect of putting up the displays.  But I think it did not identify one in respect of taking them down. 

Justice Digby referred to that attachment in his reasons, but I think it is right to say that there probably was no risk assessment with respect to removing the objects, although there was a risk assessment in respect of putting them up and reasons for the omission were not explained. 

But the point we have just been talking about is what is the path of reasoning which says that it is consistent with the protective purpose which requires the highest protections to be given and that the connection between the activity and the anticipated risk be reduced so that it is “close”, which is a concept which is not explained and I must say nor was it explained why, in the present case, the connection was not close in any event because how closer could you get than what happened in the present case involving a time lapse of a few minutes at the most and a clear path between the activity and the injury?

But in any event, the real reason for the requiring of a close connection appears to be, we think, what was said at the bottom of that paragraph 24, that were it otherwise, taking the present case as an example, an employer would potentially face the prospect of both civil and criminal liability for failing to identify and act upon a risk which only assumed that character.

It is not entirely clear what “that character” means in that context because the employee sustained injury in a manner tenuously connected with a workplace activity.  As a matter of fact, there are grave difficulties, we would submit, with that passage because why the injury is sustained in a manner tenuously connected with workplace activity is not, with the greatest respect, clear at all.  In fact, it must obviously be wrong.

In any event, the reason which the court gave as the major reason, we would think, for reducing the strictness of what is required by the regulation is that employers would otherwise face the prospect of civil and criminal liability.  The submissions that we go on to make at paragraph 25 deal with this concept as well as with the ones which have just been mentioned with respect to the ordinary meaning of the words and the context of the legislative text.

NETTLE J:   Mr Uren, just before you pass from that point, it appears that the majority identify or characterise the task as being simply to remove the displays from the board, whereas you would characterise it as removing it from the board while standing on a stepladder.

MR UREN:   Yes, but with the other additions, that is to say to start off with they left her to work out her own method of dealing with it and traditionally that has been a no‑no with respect to workers’ protection.  You do not leave it to the employee to devise his own safe method of work.  So it would be entirely inconsistent with the general structure, as it were, or tenor of the law in this area to say that you can just identify the task in a general way or, sorry, you can describe the task in a general way and then for the purposes of the regulation completely ignore the way the employee chose to carry out the task, you not having told the employee to do it in the other way at all.

The passage we read to the Court a moment ago from Cahill explains the error in that way of thinking – that is to say, you do not define the task with such a degree of generality as to reduce the obviousness of the risks – when I say “obviousness” that is not the correct word – but to reduce the possibility of the risks which might be attendant on it.

You do not say it is so generally described as to be completely amorphous with respect to risk possibility.  You have to look at what is being done by the employee.  If you leave it to the employee to devise a particular method, then unless she was standing on her head while she did it or some silly thing of that sort, you would have to look at conceivably possible ways in which the employee might carry out the task.  It could not in respect of this particular case be said that the way in which she chose to carry out her task was one which was inconceivable or not one which might be thought of by an employer who actually sat down and decided to think about how removal would take place.

KIEFEL J:   Mr Uren, is it any part of your argument that the Court of Appeal in the paragraphs 143 to 146 elide the question of common law causation and the question of what duty and standard arises under the statute and whether it is breached, that is to say, the first questions concern the identification of the duty which arises pursuant to the standards set by the statute and whether there is breach; then one turns to the question of whether or not there was cause in fact by that breach by reference to what the person did.  Do you say that there is any elision?  Do you rely upon that at all or ‑ ‑ ‑

MR UREN:   Well, your Honour, we had not looked at those paragraphs for that purpose, but if that was what was done it would be wrong, there is no doubt because ‑ ‑ ‑

KIEFEL J:   Well, it is just that it seems that the Court of Appeal is drawing upon the particular factual circumstances in aid of somehow determining what the duty is under the statute.  That seems to be on one view a confusion of two tasks.

MR UREN:   Yes.  In their addition of the view that what was being done only assumed the character of being risky because she chose to do it in the way she did, but that is to ‑ ‑ ‑

KIEFEL J:   I think it is perhaps most evident in paragraph 146, the reference to the “causative relationship with the . . . fall”.

MR UREN:   Yes.

KIEFEL J:   And then a reference to “the relationship between risk and activity”.

MR UREN:   Yes, but if there is a causative relationship then unless the circumstances which were at the other end of the – sorry, at the relevant end of the causal chain were such that they could not be reasonably conceived as being a likely result - see, you can have, let us say, event A causing injury because of B.  If you look at the injury which has occurred you might say, well, there is a causal relationship between A, B and the injury, but that does not in all cases in any event assist in the application of the regulations because you start off at the beginning rather than start off at the end. 

You start off at the beginning by looking at what might conceivably happen and, although for the purposes of a cause of action you need to establish cause and effect because unless the breach caused the accident and the injury you have no cause of action.  The purpose of the regulations which are all the cases say are not intended so much as to prevent injury but to prevent risk of injury and to eliminate the risk and no doubt in eliminating the risk you have a knock‑on effect with respect to injury itself, but the object is to eliminate risk and the elimination of risk has to take place, naturally enough, before the particular event occurs. 

So the employer sits down – or should sit down – and think of ways in which the overall task might conceivably be carried out.  This relates to another submission that we make later on with respect to site‑specific obligations.  It is not sufficient just to give a generalised instruction to an employee – say, “do not do anything silly” or something of that sort. 

The instruction which you have to give has to be related to the particular task being carried out.  It has to be site specific, are the words used in some other cases, rather than generic or general.  The employer sits down and, although the two regulations are stand‑alone ones, first, he should identify the risks attendant on doing the job, which means that he has to work out the ways in which the employees might conceivably carry out the work, and also there is an obligation to eliminate risks – not the risks that have been thought of, but the risks which are associated with ‑ ‑ ‑

FRENCH CJ:   In terms of the exercise being undertaken in paragraphs 143 to 146, there is the constructional exercise, which indicates that the relational term “associated” has a limit indicated by the use of the term “close connection”, I think, in 143.  Then, there is the question whether the evidence was capable of falling within the causative relationship which could be inferred from the evidence – that is 146 – because they are dealing with the question whether the evidence was sufficient as it were to go to the jury.  The question at 146 is whether the causative relationship which could be inferred from the evidence of what had occurred was capable of fitting within the “close connection”, which was their constructional approach to “associated with”, I think.

MR UREN:   Yes, and “causal connection” is for the purpose of the cause of action.  The “close connection” is for the purposes of the application of the regulation ‑ ‑ ‑

FRENCH CJ:   That is right.

MR UREN:   But then the real reason, it seems, for saying that a close connection is required is because the employer would otherwise face the prospect of liability in particular circumstances, that is to say because the employee would look, it would seem, because the employee decided to do the work the way the employee did; in the context, we would add – although the court did not, although perhaps it should have, with respect – of not having told the employee to do the work in any particular way.

The next point we make in our submissions is that it is completely inconsistent with the objects of the Act that the prospect of civil and criminal liability is you - of an employer for breaching the protective provisions of the Act is used to reduce the extent of the protective provisions.  One asks rhetorically, how can that be?  They are meant to protect workers and other people.  They are meant to penalise employers, yet the prospect of penalty is being used by the court in reduction of the protection.  But surely it is the other way round.

You are penalised because people need protection.  How can it be that the penalty reduces the protection?  That is the submission which we make further on in our submissions, looking in this context, I think, at the bottom of page 9 of our submissions and the top of page 10.

Could we say in this context there are a large number of cases in New South Wales and elsewhere where, in sentencing people for breach of the regulations, deterrence is said to be an important factor because deterrence is meant to improve performance.  Looking, for instance, at the passage from Coates, which we refer to at about line 20 on page 10, the Court of Appeal there said:

For offending of this kind, general deterrence is also a consideration of great importance.  In Orbit Drilling, this Court endorsed the view of the Industrial Commission of New South Wales in Court Session, that the fundamental duty of the Court in this important area of public concern . . . [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues –

What the Court of Appeal did was to, in effect, turn it on its head and to use the prospect of a penalty as a reason for not compelling attention to occupational health and safety issues but to reduce, one would think, the need for that attention because the regulation has been read down to have a lesser effect than it would have in its ordinary meaning or indeed in an enhanced meaning in the context of the objects of the statute.

In the context of what is said in Coates and also in Capral, which we refer to, there is also, I think, a passage in DPP v Irvine, at paragraph 52, which I will not read for present purposes.  In our submission, it is quite inconsistent with the objectives of the Act and the protections required and with the concept that it is necessary to penalise people for breaches to compel attention to the important factors of occupational health and safety that you in fact reduce the protection in the interests of those persons who have not given attention to those matters, applying the ordinary meaning of the regulation which imposes an obligation on them.

But those are the only reasons that we can see in the reasons of the majority for the reading down which the judgment shows.  It is for the purposes of protecting the employers from a liability which the court thought was not reasonable.  But this is to do what we have submitted the court should not do on page 9 of our submissions in paragraph c), that is to say the majority has considered for itself what it thought the appropriate scope of the legislation was and interpreted it in the context of that consideration, but in our submission, that is something which should not have been done.

It would seem to us fairly clear that on the ordinary meaning of the words “associated with”, the ordinary meaning is at the very least is the concept which should have been applied.  On that basis there should have been found to be a clear breach here on the part of the employer if the jury had accepted the circumstances of the accident as the appellant described, uncontradicted, I must say.  So presumably there would be no reason why her evidence as to how things happened would not be accepted. 

At page 11, we refer to the well‑known passage from Waugh v Kippen, which was referred to and applied in R v ARC Roofing Pty Ltd, which is referred to at the bottom of page 10, that is to say the legislation is not construed so as to deprive the worker of the protection which the Parliament intended that the worker should have and in the present case Parliament has carefully set out that protection in terms which permitted no reading down construction in the interests of anybody else.  That is the submission that we make there.

Going on to page 12 of our submissions, there is an argument there which deals with passages of the reasoning of the majority which, in our submission, show that the majority considered that the regulations required that the injury or the risk of injury be from the application of force itself and not merely be a risk of injury, as the regulations themselves provide, associated with the manual task.

We make submissions as to why that interpretation is incorrect because in part it requires a reconstruction of the regulation and also an addition of words to the regulation and to a view about its meaning and application which it has not got from its own words. 

Now, the respondent in the present case takes the view, as they have expressed, that this was not a reason for the court’s conclusion but only a passing observation, although it is not clear why the court would do that, but nonetheless, the respondent does not support the view of the meaning of the regulation if that is what it is.  So that particular use of force argument the respondent says does not arise and if it does arise they do not support what we said the Court of Appeal in fact meant.

NETTLE J:   Yet, seemingly, that is the only way in which the Court of Appeal gets to the last sentence at paragraph 145.  In other words, they have restricted the task to taking the thing off the board because that involves the use of force as opposed to taking it off using a ladder where the ladder is productive of the risk.

MR UREN:   Yes, that is certainly one way of looking at that.  The other way is the way the respondent looks at it, that the Court of Appeal has invented a new principle, that is to say, the principle of generic task.  The respondent’s point is, it seems, the only point of substance in their submissions, although we do not think it is very substantial, if we might say so.  But in any event, their point is that the court has without reference to any other authority invented a concept of generic task. 

You look at the generic task expressed in a few words and say the risk only arose because the appellant chose to perform that task in a particular way and therefore the regulation is not engaged.  Now, this falls foul, in our submission, of the site‑specific principle that we referred to, and it also falls foul of the passage from Cahill’s Case that we read with respect to not, in a sense, denaturing the protections by giving a too general description of the task.

In our submission, the only way in which the regulations can sensibly give the protections which are required is for the task which the employee is actually performing – that is to say the method of performance to be looked at for the purposes of ascertaining whether the regulations have been breached or not.  So, to go back to the ‑ ‑ ‑

KIEFEL J:   Are you saying then that what the Court of Appeal has done is to apply the task in a manner in which it was performed to determine whether or not there should be liability and then construe the regulation according to that perception?

MR UREN:   No, not so much that.  What they have said in 145 is if an employer considers a generic task of removing light displays that is all the employer thinks.  Then they have said, why should the employer be liable because the worker has decided to do it a particular way?  But this is not to apply the regulations because if the regulations require the elimination of risks from conceivable ways in which a task might be performed, then somebody has at the beginning to think of how the task will be done because ‑ ‑ ‑

KIEFEL J:   I was really thinking of paragraph 145 as an expansion upon what was said at paragraph 143.  The court takes the example of why should there be liability for this as a reason for saying why there should be a close connection, which I think is consistent with what you said earlier, that the court seems to have come to its own view of where – how narrow the limit of liability should be.

MR UREN:   Yes, of what the legislature should have – sorry, because of what it thought was the unreasonableness of the result, that is to say, the employer being made liable for the way the employee decided to do the generic task, that therefore some lesser construction should be given I think to the regulation.  But if you approach it in the way that we think is the proper structural way, then following what was said by Justice Harper and approved of in Coates, the hypothetical employer should, when he writes down removing light displays from pin boards - the word “light” seems to get some prominence in the reasons in various places. 

But the lighter the display, the more awkward it is, in one sense.  If it was made of masonite, you could carry it down in one hand.  If it is a wobbly piece of card which you want to keep the hungry caterpillar integral in respect of for later use by children, you do not knock it down with a stick.  You actually carry it down and of course it bends in the middle, and so do all the other things on top of it. 

So, it may be the court was horrified in one sense by the prospect that this little sort of thing could give rise to these liabilities, but people can be tripped up by molehills much more easily than by mountains and at least the employer, in our submission, really has to sit down and think how is it possible that this task will be carried out by an employee who we do not tell how to do it.

GAGELER J:   As I understand the facts we are asked to assume, the light displays in question in this generic task in any event are displays that are above head height.

MR UREN:   Above her head height.  She was relatively small, by which I mean smaller than me.  I think she is 143 centimetres or something, so she is relatively short.  She had to step on the step.  She was actually on the very top of the step when she was holding the object and then had to descend from the top, and it was that – that holding and supporting constituted the manual handling task, but it also included the supporting while descending, and that seemed to be what gave rise to the problem because there was both unsighting as a result of the holding of the objects, and also the lack of personal stability as a result of having no free hand.  So, all these things connected the manual handling with the injury via the concept of risk.

GAGELER J:   Insofar as putting up the light displays is concerned, part of the risk that was actually identified in that case was the risk associated with the ladders to do so, as I understand it.

MR UREN:   Yes, yes, the risk of putting them up.  So you would think normally that there would be greater risk in taking them down, but in any event certainly a risk.  Now, in paragraph 28 of our submissions we do what we think is a sort of a wrap up of the evidence and in that context we rely also on the reasons for judgment of Justice Digby, starting at appeal book 591, without reading them particularly.  Could we also mention that Justice Digby referred to the passage from Holmes’ Case which was approved of in Coates at page 579 of the appeal book?

The last thing to mention, I think, is the concept which our learned friends mentioned in their submission, that is to say, the concept of generic task and the fact that the Court of Appeal, it was said correctly, identified that as the relevant matter and they do that, I think, in their submissions at paragraphs 23 to 25.  At 25 they are bold enough to say:

The actual task undertaken by the appellant, however, was materially different from the generic task -

although it is difficult to say how that can be justified, bearing in mind the task undertaken by the appellant was only a means of carrying out what is described as a generic task, the employer not having provided any other means of doing so but in any event, in our submission, there is no split between generic and actual tasks which the regulations require or approve of.

The more generic the task which the employer decides to identify may mean the employer has to do more thinking in working out how these tasks might be carried out but if the employer does not produce the protections for the worker by the generic description which it chooses to give to the task.  The task is what it was.  The statute does not say anything about generic tasks.  The employer identifies the task in a generic way for

the purposes of his own risk assessment but that does not have any statutory authority.

What has statutory authority is the removal of risk associated with a way in which the employee might conceivably do his or her work and then by asking that particular question, provides the answer.  In our submission, the Court of Appeal did not ask that question and the answer which it gave was not to a question posed by the regulations.  If the Court pleases.

FRENCH CJ:   Yes, thank you, Mr Uren.  Yes, Mr Wheelahan.

MR WHEELAHAN:   Your Honours, we provided to the Court an outline of propositions which we wish to address.  Could we commence our submissions by developing them by reference to the text of the legislation, and we would like to take the Court first to the Act, and to section 2.  Section 2 is headed “Objects”, and the objects are set out under subsection (1).  We wish to emphasise the concluding words of subsection (1):

having regard to the principles of health and safety protection set out in section 4.

The phrase “principles of health and safety protection set out in section 4” also qualifies subsection (2), to which the Court has already been taken.  We then go to section 4, and we wish to emphasise the concluding words of each of subsections (1) and (2), that is, the phrase “reasonably practicable in the circumstances” in the case of subsection (1), and “so far as is reasonably practicable” in the case of subsection (2).  What is reasonably practicable, in our submission, is embedded in the Act, and it is embedded in the regulations.

GAGELER J:   As a discrete concept.

MR WHEELAHAN:   Yes.  It qualifies materially all the obligations that are in issue in the present case.

GAGELER J:   But the qualification was not reached in the reasoning of the Court of Appeal.  It was not applied, as I understand it.

MR WHEELAHAN:   Our submission is otherwise.  I am going to come now to the content of what is reasonably practicable.  What is reasonably practicable – I will develop this, but it includes what is foreseeable.  In our submission, that lies at the heart of what the court said, for instance, in paragraph 143.

GAGELER J:   Without mentioning the concept, though, I think.

MR WHEELAHAN:   If I could just take the Court now to paragraph 143 – the last sentence of 143, which is the rationale for the close connection:

Were it otherwise . . . an employer would potentially face the prospect of both civil and criminal liability for failing to identify and act upon a risk which only assumed that character because an employee sustained injury in a manner tenuously connected with a workplace activity.

FRENCH CJ:   What does “close connection” mean?  Is it saying something about the level of risk associated with the activity, or something else?

MR WHEELAHAN:   In our submission, the connection is close to the two reasons we identify in paragraph 32 of our written outline, that is, firstly – and this is what I am seeking to develop now – it must be reasonably practicable to identify ex ante the connection between the risk and the hazardous manual handling task.  The second submission which I will develop is that the risk must be associated with one or more of the hazards which are engaged – that is, one or more of the hazards referred to in paragraphs (a) to (c) of the definition of “hazardous manual handling”.  If it is convenient I would like to come back to that point.

BELL J:   So that the obligation imposed on the employer under 3.1.2 of the regulation is to be understood in the context of section 21(1).

MR WHEELAHAN:   Yes.

BELL J:   So that the obligation to ensure – I am sorry, it is explicit in fact in 3.1.2. 

MR WHEELAHAN:   Yes, so ‑ ‑ ‑

BELL J:   It is an obligation to ensure that you eliminate risks that reasonably practicably you can eliminate, hence your ex ante argument.

MR WHEELAHAN:   Yes, and our learned friends emphasise words such as “ensure” but those obligations are not unconstrained.  They are expressly constrained by what is reasonably practicable and it is that concept that I now want to develop.

GAGELER J:   I will stop interrupting you in a moment but the bottom line of your argument, as I understand it, is that when you read regulation 3.1.2 you read in the concept of “so far as reasonably practicable” twice:  once by reference to the express qualification at the end of the sentence, and another time as informing the content of the identification of a risk that is associated with a hazardous manual handling task.

MR WHEELAHAN:   Yes, and to give further support with respect to your Honour’s latter proposition, that qualification appears also in 3.1.1.

GAGELER J:   Yes, through the word “involving”, is it?

MR WHEELAHAN:   Yes.  So, just going back to the Act then, I want to take the Court to section 20(1) and (2).  The Court has already been taken to subsection (1), but we draw the Court’s attention to the fact that there is express reference to “the regulations” in subsection (1), thus emphasising the application of this concept to the regulations.  In relation to subsection (2), there are mandatory considerations there set out. 

Now, our submission is that the considerations set out in paragraphs (a) to (e) of subsection (2) have substantial correspondence with the Shirt calculus, as it appears in the reasons of Justice Mason in Wyong Shire Council v Shirt (1980) 146 CLR 40 at pages 47 to 48. One can see that by looking at the individual elements, that is the likelihood of hazard, the degree of harm. We draw the Court’s attention specifically to paragraph (c), “what the person concerned knows, or ought reasonably to know”.

In our submission, that brings in the idea of reasonable foreseeability –availability of suitable ways in (d) and (e) is also significant.  Cost is relevant and that of course will be a practical constraint in many circumstances.  Not only, in our submission, does paragraph (c) directly draw attention to foreseeability as an element of reasonably practicable, this Court in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 – and we have provided this case to the Court – at page 265 their Honours considered the definition of “practicable”, which appeared in the 1985 Victorian Act – that is, a precursor of the Act we are concerned with here.

The term used in the Victorian Act 1985 is “practicable” not “reasonably practicable”, but it was defined in section 4 of the 1985 Act in terms that appear on page 259 in the report of the Court.  We wanted to draw the Court’s attention to a passage at page 265, which commences:

It is clear from the definition of “practicable” in s. 4 of the Act that the issue of practicability requires some consideration of the question of foreseeability.

The Court then goes on - we put the submission at two levels.  The text of the Act brings it in but, if there were any doubt about it, it would be implicit, in any event, having regard to what the Court said in Chugg.

We take the Court then to section 21 of the Act.  Our submission is that section 21 creates the primary obligation.  The regulations give content to the obligation as regulation 1.1.7 and the notes to the regulations would indicate.  We make the following submissions in relation to section 21.  Firstly, the section is concerned with the creation and maintenance of systems and the elimination of risk, subject to the qualifications that I have identified.

The second submission we make is that it is not necessary that an injury had occurred or that harm had befallen an employee for an offence against section 21 to have been committed.  We draw to the Court’s attention what was said in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 553, at paragraph 13, where the Court made an observation of that nature in relation to the New South Wales legislation, which differs in some material respects from this Victorian Act, but we submit that the observation remains true to the Victorian Act – that is, just to read what the Court said in paragraph 13:

It is not necessary that harm has already befallen an employee for an offence to have been committed.

In our submission, thus understood, it is the failure to provide or maintain systems that constitutes a breach of section 21 rather than the occurrence of an accident.  The occurrence of the accident might, of course, be the consequence of the breach but it does not itself constitute the breach.  The next feature we note about section 21 is it creates an indictable offence and that appears in subsection (4).  The penalties are significant.  The penalties are prescribed by subsection (1).

KIEFEL J:   What is the relevance of this, given that you have abandoned the notice of contention?

MR WHEELAHAN:   The relevance of it is that in seeking to construe some of the core concepts in the Act it is necessary to have regard – we are concerned with a penal provision and that is not irrelevant.

KIEFEL J:   How is it relevant to construction in this context?

MR WHEELAHAN:   We make the submission having regard to the content of what is reasonably practicable.  There is an expectation that the legislation can be reasonably complied with by employers.  The consequences of not complying with the legislation are substantial and that is why more is required than mere conjecture, in our submission, in identifying risks of musculoskeletal injury associated with hazardous manual handling, having regard to the consequences of breach.  Could we take the Court now to the regulations?

GAGELER J:   Can I ask you a question about the construction of section 21(1) first.  I do not think you have touched on this or perhaps you have.  A natural reading of section 21(1) is that it requires an employer to eliminate all risks – when it says without risks, eliminate all risks “so far as is reasonably practicable”.  Is that a fair construction?

MR WHEELAHAN:   Of 21(1)?

GAGELER J:    Yes, 21(1).

MR WHEELAHAN:   The text is:

provide and maintain for employees of the employer a working environment that is safe and without risks to health.

I am reading the version dated 1 July ‑ ‑ ‑

GAGELER J:   Yes, of course.  I am perhaps glossing it.  I am perhaps interpreting it and I just wanted your submission in relation to that.  Why I see it as relevant is that if this regulation is a means of performing that duty it is necessary for me to understand precisely what that duty is.

MR WHEELAHAN:   Yes.  Having regard to the fact that the phrase “reasonably practicable” is embedded into the obligation, it is not only a qualification; it is an obligation to do what is reasonable, having regard to the mandatory considerations in 20(2), to provide a safe working environment.  Our submission is that is not fundamentally different from a common law obligation to take reasonable care to avoid the risk of injury, albeit this section is not directed to injury but assistance, as we have submitted.

BELL J:   On the prosecution of a person for an offence contrary to regulation 3.1.2, does the prosecution have to lead evidence to establish that the system the subject of complaint was one involving a risk that reasonably practicably could have been avoided, or does it simply lead evidence of the deficiency in the system?

MR WHEELAHAN:   In our submission, with respect, the former proposition is the correct one, and that is in consequence of the Court’s decision in Chugg which held that the onus in relation to what is reasonably practicable lies on the prosecution.

BELL J:   Lies on the – yes, right.

MR WHEELAHAN:   Could we take the Court now to the regulations commencing with the definitions, and I will take them out of order because of the logical sequence.  I will start with “manual handling”.  The Court will observe that the definition conceivably is quite broad.  We note that the majority found at paragraph 126 of the reasons that in this case:

there was evidence upon which the jury could reasonably conclude that the appellant was engaged in manual handling when she sustained injury.

The question of manual handling is not in issue for the purposes of this appeal.  Could we take the Court then to the definition of “hazardous manual handling”?  In paragraph (a) it provides:

manual handling having any one of the following characteristics –

In our submission, the definition of “hazardous manual handling” focuses on the characteristics of the task rather than any risk of injury, and we are supported in that submission by what the majority said at paragraph 128, appeal book 533.  In this particular case, it is the characteristic in paragraph (c) that is in issue, and the definition of “hazardous manual handling” requires consideration as to whether that is a characteristic of the task.  Now, in this particular case, as the majority find at paragraph 118:

there was evidence fit to go to the jury that the activity in which the appellant was engaging at the time of injury fell within the language of paragraph (c) ‑

Can we go then to the definition of musculoskeletal disorder and we draw the Court’s attention to the fact that in the third line of the definition of musculoskeletal disorder, it picks up the term “manual handling”, so it is:

an injury, illness or disease that arises in whole or in part from manual handling ‑

Now, I will come back to develop the significance of that point.  On the facing page there is regulation 1.1.7 to which we have already referred the Court.  We come now to regulation 3.1.1.  The first submission we make about 3.1.1 is that the heading is “Hazard identification”. 

Now, under section 36(2A) of the Interpretation of Legislation Act 1984 (Vic), headings to sections of Acts passed on or after 1 January 2001 form part of the Act. Our submission is that 3.1.1 directs attention to the hazard. Again, the idea of what is reasonably practicable is embedded in the obligation so it must be reasonably practicable, including, we submit, reasonably foreseeable for the employer to identify a task as involving a particular hazard referred to in the definition of hazardous manual handling or a particular characteristic, to use the text of the definition. Regulation 3.1.1 refers to “any task undertaken”. In our submission, that suggests a task involving routine or repetition but with foresight that the task will continue to be undertaken in a particular way.

KIEFEL J:   How do you identify the task in question here?

MR WHEELAHAN:   How does one ‑ ‑ ‑

KIEFEL J:   How do you identify it?

MR WHEELAHAN:   In our submission, it is through the concept of reasonable foreseeability that one ‑ ‑ ‑

KIEFEL J:   But how would you describe it?

MR WHEELAHAN:   The same way the majority described the task at 145, that is:

removing lights displays from pin boards using steps –

that the majority incorporated into their description of the task, the use of steps.  That appears in paragraph 145.  The point on which the case turned in the majority’s view in essence is they did not regard the handling of the papier‑mâché card with multiple layers, three or four, as being something which the employer ought to have identified as an element of the task.

That is why we are emphasising in our submissions the concept of something being reasonably practicable carrying with it the idea that it must be reasonably foreseeable.  Regulation 3.1.1 also refers to the task to be undertaken and again that, in our submission, must involve reasonable foresight.

Now, our submission is that for a task to be identified as “involving hazardous manual handling”, and they are the final words of the sub‑regulation, the task must have as a necessary feature one or more of the characteristics referred to in the definition of hazardous manual handling in paragraphs (a) to (c).  In support of that submission, we refer to the definition of “involve” in the Oxford English Dictionary and in particular definition 6c which we have set out in the speaking note:

To contain implicitly; to include as a necessary (and therefore unexpressed) feature –

So that the steps here are firstly to identify the task, secondly to form a view, which is an intellectual exercise as to whether that task involves hazardous manual handling.  In our submission, a risk or a mere possibility that a manual handling task might have one or more of the characteristics referred to in paragraphs (a), (b) and (c) of the definition of hazardous manual handling is not sufficient.

NETTLE J:   Did you say a risk or mere possibility of such occurring is not sufficient?

MR WHEELAHAN:   Yes, because ‑ ‑ ‑

BELL J:   If it is foreseen, why is it not sufficient?

MR WHEELAHAN:   What must be foreseen is that the task will have as a necessary characteristic.

NETTLE J:   It is bound to occur.

MR WHEELAHAN:   Yes – no, not that the accident is bound to occur ‑ ‑ ‑

NETTLE J:   But the risk is bound to eventuate.

MR WHEELAHAN:   No, not that the risk is bound to eventuate but that the task ‑ ‑ ‑

BELL J:   The system will fall within one of the subparagraphs. 

MR WHEELAHAN:   Paragraphs (a), (b) or (c).  So to take the example in this case, paragraph (c) refers to instability, “unstable or unbalanced loads”.  So what must be foreseen is that the task will have, as a necessary characteristic, unstable or unbalanced loads.  Not that some accident will occur or that some risk is present because, as I submitted earlier, the definition of “hazardous manual handling” does not refer to risk.

FRENCH CJ:   You could be carrying a bag, that is a sustained application of force.

MR WHEELAHAN:   Yes, in the Newtonian sense.

FRENCH CJ:   Well, what other sense?

MR WHEELAHAN:   Yes, that the – that engages the definition of manual handling but not hazardous manual handling.

FRENCH CJ:   Well, sustained application of force and it brings in manual handling because it requires the use of that force to lift any object, hold any object.  So I pick up a bag ‑ ‑ ‑

MR WHEELAHAN:   Yes.

FRENCH CJ:   ‑ ‑ ‑ I am holding the object, I walk 100 metres with it, it is the sustained application of the force.

In one sense, you might say that increases the risk of a slip or a fall if you have to do the same thing a number of times.  She attributed to her choice of that method of approach to efficiency and it does not seem, so far as we can see, that she was challenged on that ground.  It was interesting to see that our learned friends’ argument suggests a number of methods which the appellant might have employed for the purposes of eliminating the risk herself but the interesting factor is these methods were not ones which were suggested by the employer.

It is the employer’s job to suggest - to eliminate risk by proposing measures which are addressed to that purpose but the argument seems to be that the legislature leaves that in this particular sort of case to the employee which, in our submission, is to turn the matter completely on its head.  I think there is probably nothing else we need to say by way of reply.

FRENCH CJ:   Thank you, Mr Uren.  The Court will reserve its decision.  The Court adjourns to 9.45 tomorrow morning for pronouncement of orders and otherwise to 10.15.

AT 12.54 PM THE MATTER WAS ADJOURNED