Deal v Kodakkathanath
[2015] HCATrans 333
[2015] HCATrans 333
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M190 of 2015
B e t w e e n -
KATHRYN DEAL
Applicant
and
FATHER PIUS KODAKKATHANATH
Respondent
Application for special leave to appeal
KEANE J
NETTLE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 11 DECEMBER 2015, AT 9.33 AM
Copyright in the High Court of Australia
MR A.G. UREN, QC: If the Court pleases, I appear in this matter with my learned friend, MR A.D.B. INGRAM. (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)
KEANE J: Mr Uren.
MR UREN: If the Court pleases. May I mention first the issue of the reason why special leave should be given in this case, and it is relatively simple and in our submission requires no gloss, which is that the decision of the Court of Appeal, if correct, would considerably limit the protection for employees which, on our view of the relevant regulation, is provided by those regulations.
The reason why there would be a considerable limit on the protection given is the Court of Appeal’s conclusion was, and the reason why the court did not accede to the submissions of the applicant was, firstly, that the connection which was required between the risk and the activity had to be a close connection, that is to say that the words “associated with” in the regulation required a close connection between those two matters; and, secondly, that on a conceptual basis, that is to say, a basis which had no foundation in the actual or particular words of the statute but which had a foundation in the basis of the majority’s view of what the regulations were meant to do, required that the risk of injury not be simply associated with the task in the ordinary meaning of those words, but be from the application of force in the carrying out of that task plus the simple words of the statute, or the regulation, which required that there be a risk of musculoskeletal disorder associated with the manual handling task affecting an employee be one in which the words associated required a close connection between the risk and the task but also required that the injury be from the application of force involved in the task itself as if, for instance, one had a bad back by lifting something which was too heavy.
Now, I think it could not be doubted, and I do not think it is doubted, by our learned friend’s submissions, that the protections which on the applicant’s case the regulation gives would be considerably limited by the interpretation of the regulation given by the majority in the Court of Appeal.
The task in which the applicant was involved is set out in one place in our outline of argument at page 122 of the application book, and it can be seen what the applicant was doing there. Could we amplify that by looking at the reasons of Acting Justice of Appeal Digby at page 102 of the book, in which his Honour at (v) at the bottom of the page said that the:
Evidence of the Appellant included that the Displays were unstable . . . difficult to grasp and hold, necessitating both hands to ensure that the Displays were not damaged . . . the Displays buckled in the middle, and that the Displays could not be effectively grasped with one hand –
and so forth. So it seems that what happened is the applicant was descending the steps with these large display boards being supported by both of her hands. There were several of those boards, they are made of a form of thick paper material with papier‑mâché stuff on it apparently depicting a hungry caterpillar, I think, and whilst carrying them down, supporting them with both hands in order to avoid them being destroyed as displays, they were unstable, buckled in the middle and as she stepped backwards she misstepped and did serious injury to her knee.
Now, the reasons why Justice Digby found that the circumstances fell within regulation 3.1.2 are set out clearly in his Honour’s reasons, and it would seem fairly clear that if the logic of the majority was not followed then the logic of Justice Digby would have to be followed, in other words, that the case should not have been taken away from the jury, effectively, by the ruling which was given by the trial judge. So if I could take the Court to the relevant regulation, which is 3.1.2, which appears, I think, at page 181 of the application book. It simply provides in very simple terms that:
An employer must ensure that the risk of musculoskeletal disorder –
that is to say, an injury having a particular cause –
associated with a hazardous manual handling task affecting an employee is eliminated so far as is reasonably practicable.
Now, the majority held that the words “associated with”, despite their normal width, carried a limitation of close connection. Now, there is no warrant, in our submission, in the words of the regulation to so limit the meaning of the words “associated with”, and secondly, it is contrary to general principle that a provision which is designed to provide protection to employees in workplace situations be given a limited meaning.
It seems that the majority in the Court of Appeal took the view that because there was a penalty attached to a breach of the provision that it should therefore be read down in the interests of the person who might be subject to the penalty. But that, in our submission, is to turn the whole thing on its head because to provide an extra protection to employees by virtue of having a penalty attended on a breach of the regulation means that the protection is limited because of the penalty attached to the breach is really to turn the whole thing on its head.
KEANE J: Mr Uren, we are dealing with Part 3.1, Manual Handling, and the obligation in 3.1.2 is to:
ensure that the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee is eliminated -
Are there other provisions, other parts of the regulations, which address the risk of physical injury from, for example, slips and falls?
MR UREN: Yes, there is. Further on, I forget what the regulation is but there is a regulation which addresses simple falls.
KEANE J: Why would not one approach the construction of this provision taking into account the existence of other provisions that more specifically address the risk of a particular task?
MR UREN: Well, firstly, that was not a reason given by the majority in the Court of Appeal.
KEANE J: No, no, I appreciate that.
MR UREN: Secondly, it may be that in the case of particular tasks there can be an overlap of application of provisions. In the present case, this is not a simple fall. It is a case where the manual handling task, to use a general phrase, caused the fall, and thus the injury which was the thing which is being complained of in fact was associated with the task more than associated with a simple fall.
So it is not just a simple case of a bricklayer working on a staging of some sort without a barrier to stop him falling over if he missteps. This is a case where the actual manual handling task, which the court found was firstly a manual handling task and secondly a hazardous manual handling task, where the risk arose from that activity in the circumstances in which it occurred, the circumstance being, in this case, stepping down a set of steps whilst being unsupported or having no support from another person or from one’s own hands because of the way in which the load was being carried and also because of the behaviour of the load itself. So it was the circumstances of the handling which gave rise to the risk of the injury. It was not the fall itself which was the problem.
KEANE J: Well, the immediate problem was either being unsighted or unsteady.
MR UREN: Yes, and that was the result of the manual handling task. It was not the result of the steps per se. You can go up and down a set of little steps like that without any trouble if you are not holding something in your hand which you have to take care to protect. So it was the task of manual handling which was the root cause of the disaster which occurred, not the simple danger of a fall from a roof or something which has no barrier on it to stop you falling if you slip.
So whether there is an overlap or not may not be much to the point as long as the circumstances fit the 3.1.2, but in any event, in our submission, 3.1.2 is the appropriate one and there was no suggestion in any court that was not the case. So it could not, in our submission, be raised at the present stage because if it had been raised that there was another regulation even at the trial stage and that was the appropriate one, then it would have been a simple task to have an amendment made and the case would then have proceeded on that particular basis.
But there was no objection in any court to the relevance of 3.1.2 to the circumstances of the case. The only problem was it was held that 3.1.2 did not govern this sort of thing. But going back to what we were putting, the logic of what Justice Digby had said in his reasons starting at 102 would seem to be completely impeccable, in our submission, unless you take the view, firstly, that “associated with” required a close connection which the regulation does not say, and secondly, it is difficult to see why the connection should not be close in the present case, bearing in mind the circumstances in which the matter occurred.
Secondly, the court took the view – from a view which they formed on a holistic basis it would seem of what 3.1 was meant to do, that the risk of injury had to be from the application of force. We have dealt with that, I think, in our submissions at page 127 of the court book in paragraph 20. It seems to us to be contrary to all principles of interpretation of regulations and statutes, especially those which are designed to protect workers, that things be added to them which are not put in there by the legislature which in fact intended the protections. That is to say, there is nothing at all to indicate that the legislature intended that the words “associated with” the application of force in the “hazardous manual handling task” be a limiting criterion to the simple concept of “associated with”.
In our submission, the simple question which 3.1.2 is addressed to is simply this: does this hazardous manual handling task have associated with it the risk of injury? Now, if you ask that question, then the answer it seems is perfectly clear. In the present case, that would be so. Why the words “closely associated with” or “associated with the application of force” should be added is something which is completely extraneous to the statute.
Now, even if the majority’s point is arguable, nonetheless the contrary view is certainly arguable, and the contrary view enhances the protections given to workers and the view of the Court of Appeal significantly reduces them and the significant reduction, in our submission, is the reason why the case would be appropriate for special leave even if there was some error, as it were, in the views which the majority in the Court of Appeal expressed as to the limitations which are apparently inherent in the regulation itself.
So it would seem then that we would say if our case was not reasonably arguable then it would be an appropriate case for special leave simply because of the effect of the majority of the Court of Appeal’s views.
NETTLE J: Mr Uren, there are cognate provisions in other jurisdictions, are there not, to 3.1.2?
MR UREN: We think there are but the difficulty with relying on things like that is that they are never always the same. I think Justice Digby referred to cases in other jurisdictions.
NETTLE J: Are they no guidance at all?
MR UREN: Your Honour, I think we have relied for present purposes on the present statute, but there is nothing we are aware of which supports the views of the Court of Appeal.
NETTLE J: I was rather driving more at would this appeal, if it were to proceed, be determinative of the meaning of the provisions in other jurisdictions?
MR UREN: Yes. Mr Ingram says yes. I have not personally investigated that issue, but the point we make is if we are correct in the availability of the argument, then it would seem that its application in Victoria, bearing in mind it is not an insignificant part of the Commonwealth – we hope, in any event – at least we hope that is a view taken elsewhere – would be sufficient to warrant special leave being given. It is an important statute. It does not matter for our purposes whether it has got exemplars in other States or not. Its importance in this State and to workers’ rights in this State is a matter of sufficient public importance to warrant leave being given.
KEANE J: You would also say that the question of principle involved in resolving the tension between a statute that imposes a penalty – construing a statute that imposes a penalty narrowly and construing a statute that is for the protection of workers is itself an issue that warrants the attention of the Court.
MR UREN: It is. It has been dealt with in one of the cases referred to ‑ ‑ ‑
KEANE J: Waugh v Kippen?
MR UREN: Yes, but how do you actually resolve – although that case does not actually determine how you resolve the tension, but clearly the tension is there and, in our submission, unwarranted emphasis was given to the tension by the Court of Appeal, or at least given to one side of the equation. If the Court pleases.
KEANE J: Thanks, Mr Uren. Mr Wheelahan. Mr Wheelahan, is it correct to say that the effect of the majority’s view in the Court of Appeal is that this insisting on a notion of close connection is really another way of saying that the risk of injury is the risk of injury by manual handling alone?
MR WHEELAHAN: It is not the manual handling alone because the text of the statute directs attention to the manual handling task as defined.
KEANE J: Yes, and if one looks at the definition of “musculoskeletal disorder”, it means, relevantly:
an injury . . . that arises in whole or in part from manual handling in the workplace –
So that the risk at which section 3.1.2 is directed is the risk of an injury arising in whole or in part from hazardous manual handling, reading it exegetically.
MR WHEELAHAN: Yes.
KEANE J: So that if the risk that arises arises partly because of a manual handling task and partly because of other exigencies of the employment, then it is within 3.1.2, is it not?
MR WHEELAHAN: For present purposes, I accept that, and that is because the text of the definition of musculoskeletal disorder in the regulation refers to “arises in whole or in part” and that might be said to reflect, or at least reflect the common law relating to causation. It must be a cause, not the sole cause.
KEANE J: Why then does not one stop at that so far as construing the scope of the regulation is concerned? What is the warrant for adding what Mr Uren says is a gloss by requiring that the association be a close one?
MR WHEELAHAN: For two related reasons given by the majority in the Court of Appeal. The first reason is the requirement to look at whether the regulations are engaged or indeed breached prospectively. If one were to admit of a loose association rather than a close association, it invites a conclusion that there is a requisite connection between the injury and the risk, or the risk and the manual handling task tenuously and only as a product of hindsight. The requirement for a close connection is a result of the Court of Appeal’s construction that the regulations are to be viewed prospectively, and that was a view that was also shared by the dissenting judge, Justice Digby.
KEANE J: So where do you say Justice Digby’s reasoning diverges from that of the majority?
MR WHEELAHAN: Because his Honour did not in fact look at the matter prospectively, and could I illustrate that by taking the Court to some passages in Justice Digby’s reasons? Firstly, at paragraph 325 at application book 95, his Honour refers to the regulations being “intended to be forward‑looking”. If we take the Court then to paragraph 351, subparagraph (u), which is on page 102 of the application book, in the middle of paragraph (u) Justice Digby refers to:
The manual handling by the Appellant was also arguably ‘hazardous manual handling’ –
His Honour then refers to “unstable and/or unbalanced load” and as the majority points out that was a characteristic peculiar to the circumstances of this case. So we would submit that Justice Digby is looking at the issue here with hindsight. Similarly, in paragraph (v) ‑ ‑ ‑
NETTLE J: In the sense that it is not ordinarily to be foreseen that a worker in the position of this woman would have to handle an unstable or unbalanced load or some other sense?
MR WHEELAHAN: In that sense, your Honour, and that is the point of difference between Justice Digby and the majority because the majority identified the task as what they describe a “generic task” of taking cardboard off a pin board. The instability of the load was regarded by the majority as a feature peculiar to this case.
KEANE J: Well, that sounds like another way of saying that 3.1.2 is concerned with system, a given system, and if you look at the given system and you debug it, whereas it would be said against you that it is not so limited and it requires of the employer a view which eliminates or reduces any risk that might arise without being confined to a particular system that is in place, that is to say, it is not concerned simply with the system that the employer prescribes, or lays down, but is concerned more generally with risks that may arise because of the possibility that employees will carry out their tasks by adopting their own system.
MR WHEELAHAN: In our submission, the difference between the majority and Justice Digby appears, with respect, from paragraph 145 on page 49 of the application book. We submit that the starting point for the purposes of regulation 3.1.1 is firstly to look at the task as being the generic task of removing the displays from the pin boards. The majority then take the view that it is not open to conclude that that task would even involve hazardous manual handling we would interpolate for the purposes of regulation 3.1.1.
The reason is it is not reasonably practicable, the onus lying on the plaintiff, to expect the employer to identify that task as involving hazardous manual handling. On that analysis, one does not then get to 3.1.2, but if one does, that then gives rise to the idea that the association must be close rather than remote, and that the majority addresses in paragraph 146.
NETTLE J: In the middle of 145, it is suggested that even if there were conjecture that there is awkwardness in the handling, why should it be foreseen that there would be a risk? Why should there not be? If you are standing on a stepladder with something that is difficult to handle, it is immediately apparent there is a risk, is it not?
MR WHEELAHAN: In our submission, the use of the word “conjectured” is deliberate and it is not to be read as being synonymous with reasonably foreseeable, or “reasonably practicable” to foresee, to pick up some of the text of regulation 3.1.1, that the conjecture is contrasted in that sentence with the employer reasonably postulating.
NETTLE J: So it is not to be reasonably postulated that there might be some awkwardness in the handling?
MR WHEELAHAN: Yes, because of the prospective nature of the inquiry. It is not every risk which engages the regulations, having regard to their penal nature and having regard to the fact that they must be looked at prospectively. If the Court is about to move to another topic, could I just mention in further response to a question from your Honour Justice Nettle that there are throughout Australia model work health and safety regulations. The model provisions appear in the Commonwealth, New South Wales, Queensland, South Australia, Tasmania, the ACT and the Northern Territory.
NETTLE J: Relevantly, they are fairly close to what we have here, are they not?
MR WHEELAHAN: We accept that. There are distinct differences, but to use the Commonwealth provision as an example, regulation 60(1):
A person conducting a business or undertaking must manage risks to health and safety relating to a musculoskeletal disorder associated with a hazardous manual task, in accordance with Part 3.1.
There are definitional and structural differences between the model laws and the Victorian regulations but there are similarities.
KEANE J: The question of the strength of the connection involved in association arises in all of these provisions.
MR WHEELAHAN: We accept that observation.
KEANE J: Is there, in your submission, any assistance to be gained in terms of understanding the scope or intensity of what is meant by “associated” from other provisions of the regulations which deal with risks of injury from slips and falls? I am not offering you any gifts. I am genuinely curious.
MR WHEELAHAN: I am unable to respond to that because I have not conducted that analysis, but could I pick up part of your Honour’s question and submit to the Court that slips and falls are the subject of Part 3.3 of the regulations. “Fall” is defined itself in the definitional sections and one finds the definition of “fall” at application book 154 and it is a “fall of more than 2 metres”.
KEANE J: This would not have been a fall of more than two metres, would it?
MR WHEELAHAN: No, not having regard to the height of the steps.
KEANE J: So there is no other provision that might be said to constitute context that narrows the scope of 3.1.2?
MR WHEELAHAN: Not with which I am presently able to assist the Court.
NETTLE J: Is this a Blue Metal Industries or Agfa‑Gevaert sort of a problem where the word is used in its ordinary English sense and it is then a question of fact for the jury or is it not that sort of case? “Associated” is obviously ex facie an ordinary English word. It is a question of law whether it has a different meaning in this context.
MR WHEELAHAN: In our submission, the phrase “associated with” is not to be construed in its ordinary sense because rules of statutory construction direct us to context. So it is not a process of looking up “associated” in the dictionary.
NETTLE J: It has a special meaning, you say, born of context.
MR WHEELAHAN: Yes, and because it has to be construed rather than defined, a judge must direct a jury as to what the proper construction of the phrase “associated with” is. Your Honours, could we address our learned friend’s submission that the application of force was a part of the majority’s reasons, and as far as we can apprehend that appears from paragraph 149 of the majority’s reasons on page 50 of the application book. Your Honours will observe at the top of the page the majority refer to some observations of Justice Jack Forrest in Lindsay‑Field, where in the fourth line his Honour refers to the requirement of “application of force”. Then in paragraph 149, their Honours state:
In our opinion, the circumstances in the two cases were markedly different. But the first three sentences of the passage just cited are, in our opinion, in point.
Our submission is that the majority’s statement at paragraph 149 is obiter only that the ratio appearing in paragraphs 145 and 146 and therefore the observations of Justice J. Forrest do not form part of the majority’s reasoning.
NETTLE J: Why, are they thought to be less defensible in 145 and 146? I said is what is said at 149 thought to be less defensible than what is at 145 and 146?
MR WHEELAHAN: It is not a necessary part of either the majority’s reasons or our submission, indeed, to suggest that the force must be real force or strong force or intense force. That, in our submission, does not form part of the majority reasons. So, your Honours, in conclusion, it is our submission that special leave should be refused for two reasons: firstly, for the reasons developed in our written summary, any appeal would not have sufficient prospects of success.
Secondly, it is our submission that there is really no point of principle in issue here, and that is for two reasons. Firstly, it is not in dispute, we submit, that the inquiry for the purpose of these regulations is to be prospective. Both the majority and Justice Digby were at one on that point. Secondly, it ought not be in dispute that the correct factual analysis is to be undertaken through the prism of this Court’s decision in Naxakis v Western General Hospital.
Now, although the question whether there was evidence sufficient to go to the jury is a question of law, it is only a question of law in the sense that in a jury trial that is a question for the judge rather than the jury. But underlying that question is the requirement that the court evaluate facts and what the majority has done in the present case is evaluated the evidence and simply come to the view that on the Naxakis test there was insufficient evidence to go to the jury.
NETTLE J: But that depends surely on the view that you take on the meaning of the word “associated”.
MR WHEELAHAN: Yes, it does. That feeds into our first point. We support the majority’s view on the meaning of the word “associated with” for the reasons I have advanced.
NETTLE J: That is a point of principle, is it not, the meaning of ‑ ‑ ‑
MR WHEELAHAN: Yes, I must accept that. If the Court pleases.
KEANE J: Thanks, Mr Wheelahan. Yes, Mr Uren.
MR UREN: If the Court pleases, it seems that from our learned friend’s submissions that the observations of the majority with respect to the “application of force” aspect are in fact not expressly supported, in other words, there is no argument in favour. All that is said is that it is obiter. One thing we would say about that is this. The majority certainly mentioned two reasons for its conclusion. One is that the words “associated with” required a close connection, and the other one, it seems to us, is because of the view which they had formed – I think at page 49 – as to what the statute was meant to do. Each of them seem to be reasons for the decision rather than one being obiter.
It is noticeable, we think, that we could not find any reason the majority gave for saying that despite its view that there should be a close connection that there was not a close connection. There is no explanation for why what seems to be a close connection in the facts of this case was in fact not so within the view which they took of the meaning of the word “close”. So it seems to us that the better view perhaps is that “close” might be obiter and the other part might be the real reason, but in any event, they seem both to be reasons for the view which the Court of Appeal took, each of which if correct would have justified its position.
As to the other arguments our learned friend put, they are redolent of false dichotomies. We are not saying that a remote connection is sufficient. This poses a straw man issue. We rely on the ordinary meaning of the
words, and so far as context goes, the relevant context is that the regulations are meant to provide beneficial provisions for the benefit of workers, not for the benefit of employees, and that supports our argument.
Secondly, with respect to the view that the context is that of something related to prospectiveness, prospectiveness is a common feature of the law and does not seem to us to have ever required a restricted meaning to be given to any of its provisions. Even a reasonable man has to be prospective in his view about what may occur if he conducts or does not conduct himself in certain ways. Everybody has to be prospective when determining what to do in the face of a statutory or a common law requirement and, therefore, in our submission, the view that the employer has to be prospective is no more than a statement of what the statute requires, that is to say, he must look out for things which are hazardous in the context of the workplace and deal with them so that people are not injured. If the Court pleases.
KEANE J: Yes, there will be a grant of special leave in this matter. Mr Uren, can I ask you how long do you think the argument will occupy?
MR UREN: A day or less, we would think, maybe half a day. It is not a difficult point to run. The facts seem to be not in contest. We would say half a day.
KEANE J: Mr Wheelahan, do you agree with that estimate?
MR WHEELAHAN: I do, your Honour.
KEANE J: So up to a day?
MR WHEELAHAN: Yes.
KEANE J: Okay. The directions in relation to the filing of submissions will be available to the parties from the Registrar. Very well, special leave will be granted in this matter.
AT 10.17 AM THE MATTER WAS CONCLUDED
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