Deal v Father Pius Kodakkathanath

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.