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

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Deal v Kodakkathanath

Details

AGLC: Deal v Kodakkathanath [2015] HCATrans 333
Case: [2015] HCATrans 333
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, Father Pius Kodakkathanath, sought leave to appeal a decision of the Court of Appeal. The dispute centred on the interpretation of regulation 3.1.2 of the relevant workplace safety regulations, which requires employers to eliminate the risk of musculoskeletal disorders associated with hazardous manual handling tasks. The applicant argued that the Court of Appeal's interpretation unduly limited the protection afforded to employees under these regulations.

The central legal issue before the High Court was whether the words "associated with" in regulation 3.1.2 required a "close connection" between the risk of injury and the manual handling task, as held by the majority of the Court of Appeal. The applicant contended that this interpretation was not supported by the plain wording of the regulation and that it significantly curtailed the intended protective scope of the legislation, particularly when read in conjunction with the penalty provisions. The applicant also argued that the risk of injury in this case, which arose from the circumstances of carrying unstable display boards down stairs and subsequently misstepping, was indeed associated with the manual handling task.

The applicant's submission was that the majority in the Court of Appeal erred by imposing a limitation of "close connection" on the words "associated with," which they argued should be given their ordinary, broader meaning. They submitted that this restrictive interpretation, along with the view that the risk must stem from the application of force within the task itself, was contrary to the purpose of protective legislation for employees. The applicant highlighted that the injury occurred as a direct consequence of the manual handling task, which rendered the employee unsteady and unable to support herself properly, leading to the fall and subsequent knee injury. The applicant argued that this interpretation significantly reduced employee protections and therefore warranted special leave to appeal due to the importance of the principle involved.

Orders