Deal v Kodakkathanath

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0115

KATHRYN DEAL

FATHER PIUS KODAKKATHANATH

---

JUDGES:	WARREN CJ, ASHLEY JA and DIGBY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 March 2015
DATE OF JUDGMENT:	24 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 191
JUDGMENT APPEALED FROM:	County Court (Judge McInerney) 2 September 2014

---

ACCIDENT COMPENSATION – Workplace injury - Appeal – Statutory duty – Ruling by trial judge that cause of action for breach of statutory duty be withdrawn from jury’s consideration – Whether ruling premature – Whether judge applied incorrect test in ruling that cause of action be withdrawn from jury’s consideration – Whether manual handling provisions of Occupational Health and Safety Regulations 2007 engaged in circumstances of case.
ACCIDENT COMPENSATION – Workplace injury – Appeal – Whether jury verdict in favour of defendant perverse or not open on evidence – Appeal dismissed.

Occupational Health and Safety Act 2004, sections 2, 4 and 20.

Occupational Health and Safety Regulations 2007, regulations 1.1.1, 1.1.5, 3.1.1, 3.1.2, 3.1.3.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Ingram with Ms K Popova	Melbourne Injury Lawyers
For the Respondent	MR J P Gorton QC with Ms M Norton	Minter Ellison

WARREN CJ
ASHLEY JA:

The appellant, Kathryn Deal, was the unsuccessful plaintiff in a proceeding in the County Court in which she claimed pain and suffering damages against her employer for injury to her right knee suffered on 19 September 2007 in the course of her employment as a primary school teacher at St Peter Apostle Primary School, Hoppers Crossing. Her claim was heard by a judge and jury over a seven day period in August and September 2014. Her case was left to the jury as one in which she claimed that she had suffered injury by reason of breach by her employer of the non-delegable duty of care which it owed her. It was that claim which, by its verdict – delivered less than an hour after beginning its deliberations - the jury rejected.

The appeal

By this appeal, the appellant complains that the jury’s verdict was perverse and not open on the evidence. She complains also that the judge should not have left contributory negligence to the jury — a complaint which could only be relevant if the jury’s adverse verdict was successfully impugned and if it was determined that the employer was in fact in breach of the common law duty which it owed her.

Of prime importance to the appeal, however, are grounds which contend that the judge wrongly ruled that a cause of action for breach of statutory duty which the appellant advanced was unavailable. That claim was pleaded as follows:

Further and in the alternative, the plaintiff’s injuries were caused by reason of the breach by the defendant of its duties under the Occupational Health and Safety Regulations 2007.
PARTICULARS OF BREACH
Without limiting the generality of the foregoing allegations the plaintiff relies further upon breach by the defendant of regulation 3.1.1 requiring hazard identification, regulation 3.1.2 requiring control of the risk, and regulation 3.1.3 requiring review of risk control measures of the Occupational Health and Safety Regulations 2007.

The particular regulations (‘the Regulations’), it is convenient to note, commenced operation on 1 July 2007 – that is, not long before the appellant suffered injury. But there had been predecessor regulations, operating from 1999.

We will later set out the circumstances in which the judge so ruled.[1] But we should immediately note that, as a secondary consequence, the following particular was also excised from the plaintiff’s claim laid in negligence:

The injuries were caused by reason of the negligence of the defendant, its servants and agents
…
(r)failing to comply with the regulations made pursuant to the Occupational Health and Safety Regulations 2004.[2]

[1]As will be seen, the judge made the impugned ruling early on in the trial. Later, he confirmed it. We will refer to his ruling in the singular, except where it is necessary to do otherwise.

[2]Perhaps surprisingly, two other particulars of negligence, lettered (p) and (q), which made use of the term ‘hazardous manual handling’ – a term which was central to the alleged breach of regulations – were not excised. Respondent’s counsel did not press for their excision. In any event, those particulars were not adverted to in the closing address of either counsel.

It is because the ruling affected not only the breach of statutory duty claim, but also the claim laid in negligence, that we have described the challenge to that ruling as being of prime importance to the appeal.

Related to her contention that the judge wrongly removed the breach of statutory duty claim from the jury’s consideration, the appellant submits that the judge twice provided inadequate reasons for his ruling. That submission, if established, might possibly lead to the success of the appeal. But the starting point is clear: was the ruling wrong?

Conclusions summarised

We have had the advantage of reading in draft the reasons for judgment of Digby AJA. His Honour has concluded that the appeal should be allowed, and that the proceeding should be remitted for trial on all issues. We have reached a different conclusion. In our opinion, the appeal should be dismissed. In order to adequately explain that conclusion we will need to cover much of the ground addressed by Digby AJA in his reasons.

Circumstances generally described

Speaking broadly, the circumstances in which the appellant suffered injury were as follows.

On 19 September 2007, as part of her job, the appellant had to remove a number of large sheets to which were attached papier mache displays, from a pin board on a wall of a classroom. The appellant described the sheets as being ‘stock card’, which she said was thicker than ‘copy paper’. Her counsel opened that the sheets were of two sizes, each of which was larger than A3 size, and which comprised a multiple of A3 sheets.[3] The appellant was only 156 cms in height. The pin board could not be accessed from ground level. The employer had provided a two step ladder (‘the steps’) for use when performing this task – one which had to be done periodically, and not only in the particular classroom. The steps were an ‘A’ frame configuration. The top of the ‘A’ frame was 600 mms above floor level. The second - that is, top - step was at 450 mms. In a practical sense, the steps had to be set at right angles to the pin-board. The appellant had to ascend the steps, unpin the displays, and whilst carrying one or more of them, descend the steps backwards. In fact, on the particular occasion, the appellant was carrying more than one display.[4] As she was descending, she held the displays by putting both hands underneath them. She thus had no hand free to steady herself. Because of their size, she also had an impaired view of the steps which she was descending. In the event, she missed her footing and fell, and, in doing so, suffered injury. In performing this task, the appellant worked alone. She thus had no option of, for instance, unpinning the displays and handing them to a co-worker before descending the steps. By contrast, when she was putting the displays up, the children would hand them to her whilst she was on the steps.
[3]The appellant, however, did not give very definite evidence about their size.
[4]In her evidence, she spoke, variously, of carrying ‘a couple on top of each other’; and ‘three to four probably’.

The opening for the appellant, and the appellant’s evidence

In the course of opening the appellant’s case, her counsel identified the appellant’s claims in breach of statutory duty and in negligence. We interpolate to note that neither at trial nor in this Court did the respondent contend that a private right of action did not lie for breach of the Regulations.[5]
[5]Compare the submissions advanced for the respondent in Govic v Boral Australia Gypsum Ltd [2015] VSCA 130, exhaustively considered, and rejected, at [118]-[176].

Counsel tendered the Regulations which he contended were relevant. They related to ‘hazardous manual handling’. He highlighted that part of the definition of the term which refers to ‘manual handling of unstable or unbalanced loads or loads that are difficult to grasp or hold’.

Counsel next referred to a document which he identified as the respondent’s 2005 occupational health and safety policy (‘the 2005 policy’).[6] He also tendered a document described as the respondent’s 2005 staff welfare policy (‘the welfare policy’) and the respondent’s 2011 occupational health and safety policy (‘the 2011 policy’). Those tenders were designed to show, primarily, that the 2005 policy was deficient (and thus in breach of the Regulations) because, by contrast with the 2011 policy, it contained no reference to manual handling;[7] and that the welfare policy said nothing pertinent. As the judge observed, in the course of counsel’s opening, the staff policy related to ‘after hours’ work.
[6]That document appeared in the exhibit list provided to the Court, and the sequence of exhibit letters suggests that it may have been tendered. That this in fact did happen is confirmed by the transcript of discussion between the judge and counsel on 27 August 2014.
[7]Although, so far as it referred to manual handling, the document was substantially incomplete. As to which, see more later.

Counsel also tendered ‘manual handling risk assessments’ numbered 16 and 17, said by the respondent in answers to interrogatories to have been completed at some uncertain time before the appellant’s accident. Counsel’s purpose was to show that the assessments were a completely inadequate response to ‘a readily acknowledged danger in manual handling, such as the [appellant] was performing’.

It is quite clear that counsel’s primary emphasis was upon the breach of statutory duty claim. Only after he had explained that claim in detail did he refer to ‘the other cause of action’ – that is, common law negligence – upon which the appellant relied.

The appellant then gave evidence. She stated, inter alia, that she complied with instructions for use affixed to the steps, that before her accident she had not been given any written warning of the risk of falling from ladders or the like, and that she had not been warned against working alone when using the steps. She said that she was not aware of any instruction about risks associated with manual handling when using the steps. Before the accident occurred, she said, she had no knowledge of the Regulations or of any assessment undertaken pursuant to them. She had not been told that she was using the steps inappropriately, or in a manner not suitable for their design. She had not been given any instruction as to how she should perform the particular task.

The appellant was taken to the 2011 policy. She stated that, before being injured, to her knowledge the school did not have in place any manual handling hazard worksheet. She said that she was unaware of any occasion on which any manual handling risks associated with placing or removing displays had been discussed in any safety context whatever.

The appellant was taken to what was, at that stage, understood to be the 2005 policy. She gave evidence that she was unaware from that document of any occupational health and safety issue directed towards manual handling at the school. She had no knowledge of any document, apart from the 2005 welfare policy, which dealt with issues of working above ground level. She understood that the 2005 welfare policy was concerned with persons ‘staying safe in the school while you were alone’.

The appellant was taken to the document, produced by the respondent, entitled ‘manual handling risk assessment 17’. It identified the task of ‘hanging paper and cardboard displays’ and proposed various risk-reducing courses of action. The gist of the appellant’s evidence was that the things which the document proposed had no sensible application to the job which she was performing when she suffered injury. Her counsel adopted as accurate the judge’s observation, with respect to the document, that: ‘a pro forma, that is what it is’.

In examination in chief, cross-examination and re-examination, the appellant gave evidence pertinent to the handling which she was undertaking when she suffered injury.

In examination in chief, there were these questions and answers:

COUNSEL:Just before I move any further, something I should ask you about these sheets of paper with the papier-mache on them, when you were carrying them, did that require two hands?
APPELLANT:      Yes.
COUNSEL:Why did it require two hands?
APPELLANT:      Because they were quite heavy — because the mache made them heavy, not heavy as in very heavy, but for the cardboard they were on it was heavy, and they sort of buckled in the middle. So if you held them one-handed I wouldn't be able to grasp what I had in my hand.
COUNSEL:And even when you had two hands they buckled in the middle?
APPELLANT:      A little bit, yeah.
COUNSEL:To what extent did the paper move and – I won’t use the word ‘quiver’, but waver, move as you were going down with them?
APPELLANT:      Because I held them underneath and not to the side they did move a little bit. They wouldn’t move too much, but probably enough to concentrate on them as well as then the step.
COUNSEL:Why did you need to concentrate precisely on them?
APPELLANT:      Well, I didn’t want to damage them to start with, yeah.
COUNSEL:Were they sufficiently secure that they could be removed without the risk of wavering or wobbling or losing shape as you brought them down if you didn't do it carefully?
APPELLANT:      Probably not, no, they would have ended up in a mess on the floor.

The appellant explained that she ‘couldn’t literally see down past’ the displays. She said —

I just went cautiously and tried to feel for the ladder, the step as I went. Each time, I didn’t go fast, I was always going slow enough to feel for it but this time I missed.

In cross-examination, the appellant agreed that what she was carrying were -

… small light props and they were made of papier-mache.

It further emerged in cross-examination that the appellant had so described the displays in an answer to interrogatory. She had said:

So far as I can recall, I was removing a number of small, light props which formed part of the Hungry Caterpillar and were made of paper and papier-mache. They had been affixed to the display board by pin and were of various shapes and dimensions but not heavy or awkward for me to carry as such.

In her evidence, she adopted the correctness of that answer.

Then, in re-examination, there were these questions and answers:

COUNSEL:Just in relation to that matter of the small, light props, was there any difficulty in terms of the weight of these papier-mache implements and paper implements that affected your ability to step down backwards going down the steps?
APPELLANT:      They weren’t exactly heavy, but just the fact that they’re there and you had to be careful.
COUNSEL:Was there any other problem, their fragility, mobility, anything like that, which made the task difficult?
APPELLANT:      They did move a little bit because of the way I was carrying them, they did.
HIS HONOUR:    I thought you said because of their nature and we’re only talking about card-width paper. Even with papier-mache, you’re holding it like that so they wouldn’t all collapse?
APPELLANT:      No, I was holding it like that, actually (demonstrating).
HIS HONOUR:    That is what I’m saying, so they wouldn’t collapse?
APPELLANT:       That’s right.
HIS HONOUR:    Because they’re so fragile, really, I imagine?
APPELLANT:      Yeah.
COUNSEL:What I’m asking you about is despite the lightness, which made it not difficult to hold three or four of them, what was the extent to which they were moving or able to move as you went down the ladder?
APPELLANT     If you can imagine scrunched-up pieces of paper and then another flat piece of paper on top, the scrunched-up paper is only just joined to the cardboard, so it does move on its own anyway, so then when you put something else on top of it, it’s then got the tendency to move.
HIS HONOUR:    You mean on top of it, you packed them together?
APPELLANT       Yeah, I had three or four on top.
HIS HONOUR:    I see what you mean.

The Occupational Health and Safety Act and the Regulations

We should next set out relevant provisions of the Occupational Health and Safety Act 2004, and of the Regulations. The former bear upon construction of the pertinent regulations.

Section 2 of the Act relevantly provides:

2Objects
(1)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; and
…
(d)to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards—

having regard to the principles of health and safety protection set out in section 4.
(2)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 then provides:

4The principles of health and safety protection
(1)The importance of health and safety 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 to risks to health or safety are responsible for eliminating or reducing 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.
(4)Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.
(5)Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues.

Finally, we should mention s 20:

20The concept of ensuring health and safety
…
(2)To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a)the likelihood of the hazard or risk concerned eventuating;
(b)the degree of harm that would result if the hazard or risk eventuated;
(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d)the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e)the cost of eliminating or reducing the hazard or risk.

We turn next to the Regulations. The appellant, by paragraph 5 of her statement of claim, particularly relied upon the applicability and the breach of regulations 3.1.1, 3.1.2 and 3.1.3. Each of them casts an obligation upon an employer where there is ‘hazardous manual handling’. That expression is defined by regulation 1.1.5. Breach of any of those regulations, provided that it is a cause of injury to an employee, may found a private right of action for breach of statutory duty.[8]
[8]As we have earlier noted, it was not contended to the contrary by the respondent either at trial or on the appeal.

The objectives of the Regulations are in point. They inform the construction of the regulations upon which the appellant relied. This is what is said by Regulation 1.1.1:

The objectives of these Regulations are—
(a)to further the objects of the Occupational Health and Safety Act 2004 by—
(i)providing for health and safety in relation to workplaces and hazards, activities and things at workplaces; and
…
(v) providing procedures for the resolution of health and safety issues at workplaces; and
…

Regulation 1.1.5 defines ‘hazardous manual handling’, ‘manual handling’ and ‘musculoskeletal disorder’:

hazardous manual handling means—
(a)       manual handling having any of the following characteristics—
(i)        repetitive or sustained application of force;
(ii)       repetitive or sustained awkward posture;
(iii)      repetitive or sustained movement;
(iv)application of high force being an activity involving a single or repetitive use of force that it would be reasonable to expect that a person in the workforce may have difficulty undertaking;
Example
The force required to lift or otherwise handle heavy weights, to push or pull objects that are hard to move, to operate tools that require the use of 2 hands to exert sufficient force but that are designed for one hand or to operate tools that require squeezing of grips that are wide apart.

(v) exposure to sustained vibration;

(b) manual handling of live persons or animals;
(c)manual handling of unstable or unbalanced loads or loads that are difficult to grasp or hold;

…
manual handling means any activity requiring the use of force exerted by a person to lift, lower, push, pull, carry or otherwise move, hold or restrain any object;
…
musculoskeletal disorder means an injury, illness or disease that arises in whole or in part from manual handling in the workplace, whether occurring suddenly or over a prolonged period of time, but does not include an injury, illness or disease that is caused by crushing, entrapment or cut resulting primarily from the mechanical operation of plant.[9]

[9]In what follows we will not use quotation marks when mentioning any of those three expressions.

Regulation 3.1.1 requires an employer, so far as is reasonably practicable, to identify any task undertaken, or to be undertaken, by an employee ‘involving hazardous manual handling’.

Regulation 3.1.2 requires an employer to ensure that the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee is eliminated so far as is reasonably practicable; or, if the risk cannot be eliminated, then reduced as far as is reasonably practicable, by -
(a) altering—
(i)the workplace layout; or
(ii)the workplace environment, including heat, cold and vibration, where the task involving manual handling is undertaken; or
(iii)the systems of work used to undertake the task; or
(b)changing the objects used in the task involving manual handling; or
(c)using mechanical aids; or
(d)any combination of paragraphs (a) to (c).
If it is not reasonably practicable for an employer to reduce the risk of a musculoskeletal disorder associated with a hazardous manual handling task in any of those ways, the employer is authorised to control that risk by the use of information, instruction or training.

Regulation 3.1.3 requires review, and if necessary revision, of any measures which have been implemented to control risks in relation to musculoskeletal disorders.

Much of the appellant’s evidence, as will now be appreciated, addressed what were alleged on her behalf to be breaches of the Regulations; and addressed the issue of causation related to the alleged breaches of regulations. But because, as we have already noted, the judge ruled that the breach of statutory duty claim should be removed from the jury’s consideration, the appellant’s evidence focussed upon a case which she was not permitted to advance. That is so although some of that evidence was relevant to her claim at common law. In the event, the jury was never called upon to decide, on an assumption that the particular Regulations did apply, whether the employer breached them; and whether, if so, any breach was causative of her injuries.

The circumstances and timing of the ruling

Paragraph 5 of the statement of claim, in substance, alleged each of duty, breach and causation.

Paragraph 5 of the defence was a simple denial of all of the appellant’s allegations.

Before the appellant’s counsel opened, the respondent’s counsel informed the judge that he would be submitting ‘in due course’ that ‘the Regulations sought to be relied upon do not apply as a matter of law here’. The judge queried ‘shouldn’t that take place beforehand?’.

Counsel replied ‘Your Honour, that’s after the evidence is considered’.

The judge then observed ‘so what you are saying is it will run, but you’re ultimately going to be putting that it won’t go to the jury?’.

Nothing more happened about this matter until, in the course of the appellant’s evidence-in-chief, when taking an objection, the respondent’s counsel submitted, with respect to the Regulations, that ‘there is going to be some major debate whether they even apply in this case’.

The next event was that, in a break very shortly before cross-examination of the appellant was concluded, her counsel told the judge that the respondent’s side had just provided him with a copy of the 2005 policy which included references to manual handling. Counsel stated that he suspected that it ‘might be an insoluble issue’ having regard to the way in which the appellant’s case had been run. He said that he ‘would have run the case completely differently’. But he made no application, as he might have done, that the jury be discharged.

The judge appeared to have been unsympathetic to the position stated by appellant’s counsel. He said that the appellant’s case could ‘be easily amended and altered and changed’.

The matter was, in the event, left unresolved that day. Cross-examination of the appellant was completed and she was re-examined, without any mention being made of this newly produced document.

There was, however, some discussion between the judge and counsel before the Court adjourned that day with respect to the Regulations. Appellant’s counsel agreed with the judge that the ‘real issue’ was what was meant by paragraph (c) of the definition of hazardous manual handling. Counsel said that it was ‘not a question of weight in this case’. Respondent’s counsel submitted that both the definition of manual handling and the definition of hazardous manual handling were relevant. He submitted that this was not a case of manual handling at all. Then there was a short discussion about cases in which, where the Regulations were doubtfully engaged, judges had left the matter for consideration by the jury, reserving leave for the defendant to move non obstante veridicto.

There the matter stood until the following day, when respondent’s counsel confirmed at the outset that the recently produced document was a full version of the 2005 policy. He stated also the various risk assessments which appeared in the document had in fact been completed.[10]
[10]Later, Ms Morrison, a witness called for the respondent, gave evidence to that effect. But no completed document ever went into evidence.

Before the matter went any further, the judge said that -

It seems to me the simple answer is I make a decision on the question of hazardous task and we mightn’t have any problem, depending on what that decision is, which I probably should have made anyway. There is no more evidence to be given in regard to the circumstances, is there?[11]

[11]Our emphasis.

When appellant’s counsel submitted that the newly produced document made a ‘massive difference’, the judge said:

But this is all irrelevant, unless this is a hazardous task, I might say.
…
So the point is if you don't get up on that, all this is totally irrelevant.

Appellant’s counsel apparently agreed with the second of these observations.

Appellant’s counsel then reiterated his submission that it was impossible to deal with the new situation. But he also submitted that the problem could be dealt with by the application of s 56(1) and (2) of the Civil Procedure Act 2010. The judge should not permit the respondent to rely upon the document.

His Honour was very critical of the appellant’s lawyer for not recognizing that the document produced by the respondent in response to an earlier request for the 2005 policy had been, obviously, nothing of the sort.

His Honour also demurred to the appellant’s submission that he should exclude the document under s 56 of the Civil Procedure Act, saying this:

Why should I do that at this stage? It seems to me what I should do is simply determine the issue as to whether any of this material is relevant so that the potential, assuming you had some validity in what you’re putting to me and assuming I accepted it, the potential proceeding of a trial without the appropriate materials that were relevant at the time, which would be in fact a false situation before a jury, why should I not rule on the question of manual handling and that may well determine the issue?

Appellant’s counsel immediately agreed in that course. In this Court, he said that he did so because a great deal of evidence had already been adduced, and he believed his client’s position to be ‘impregnable’.

The judge then addressed respondent’s counsel as follows:

Before I proceed to determine [the Appellant’s] submission that the case proceed on the basis that you not be able to utilise this document so that the case as presented by him can be presented as he’s opened, I have suggested to [Appellant’s Counsel] that what I should do is determine the first issue, that is, whether the regulations themselves are applicable, thereby rendering any such decision — determining one way or another whether I’d have to make the decision. If I determine that it is a hazardous manual task, then I will have to come back to the decision.

Respondent’s counsel agreed in that course.

Both counsel then made submissions as to the meaning to be given to the relevant regulations.

The submissions for the appellant were in substance as follows:

(1)The Regulations were not to be narrowly interpreted.
(2)Manual handling did not require the use of great force. It could encompass the application of even minimal force.
(3)The load which the appellant was carrying was unstable, unbalanced and difficult to grasp or hold.
(4)The respondent had admitted, by manual handling risk assessment 17, that manual handling relevantly included the handling of paper and cardboard displays.
(5)An integral part of the handling task was that it was being performed on the steps.

Counsel for the respondent submitted that:

(1)The task being performed by the appellant was not manual handling as defined. There was no application of force at all.
(2)If there was any manual handling, it had nothing to do with the appellant having suffered injury.
(3)Any manual handling was completely separate from the appellant being in transit at the time of suffering injury.
(4)In any event, the task which the appellant was performing did not fall within paragraph (c) of the definition of hazardous manual handling.

In that last connection, counsel adverted to the appellant’s acceptance that she had been handling ‘small, light props’ when she suffered injury.

It can be seen from the sequence of events which we described that -

(1) The question of the applicability of the Regulations only came to be argued when it was because the judge perceived that resolution of that question might obviate the need to resolve the appellant’s submission that the respondent should not be permitted to rely upon the newly produced full version of the 2005 policy.
(2)Both counsel agreed in the course which the judge proposed; although neither of them submitted that resolution of the question would resolve the appellant’s objection to the receipt of the document.
(3)The judge never received an answer to his question, italicised in the passage cited at [48] above, whether there was any more evidence to be called ‘in regard to the circumstances’ of the incident.
(4)Respondent’s counsel disputed that there had been manual handling at all, that any manual handling was hazardous manual handling, and that any hazardous manual handling had been a cause of the appellant’s injuries.

The ruling

The judge stated at the outset of his ruling that it:

Relate[d] to the pleadings.

His Honour then said:

Against my usual practice, and in particular in a criminal trial, given that this was a civil trial, it was determined to await the outcome of the evidence before the matter would be determined and, indeed, as I think all parties and myself understood, that would have been at the end of the defendant’s case, if any.

The judge acknowledged the event - that is, the belated production of the document - which had spawned his suggestion that ‘the question of law’ be determined at that stage in the trial.

His Honour then identified the issue for his decision as follows:

The issue raised here is whether, on the facts as now disclosed before this jury, there is a claim in law for breach of statutory duty.

Having identified the Regulations upon which the appellant relied, and pointed out that each ‘encompass[ed] what is identified as hazardous manual handling’ his Honour continued:

The first determination, therefore, is to determine whether the activity being performed by the plaintiff comes under the definition of manual handling identified in Regulation 1.1.5, being
Manual handling means any activity requiring the use of force exerted by a person to lift, lower, push, pull, carry or otherwise move, hold or restrain any object.

The judge accepted, next, that the Regulations were not to be given a narrow interpretation. He referred in that connection to the decision of Kaye J (as his Honour then was) in Surmon v Herald & Weekly Times.[12]
[12][2011] VSC 628.

The judge then turned to the evidence, saying this:

There is no doubt, on the evidence, that the work being performed in this case by Ms Deal is characterised as particularly light. She was removing what she describes as “props” from a display board at the back of the classroom. Those props were particularly light. They are demonstrably light from the fact that they were comprised of papier-mache stuck to pieces of not A3 paper, but the next size up, being card-size paper.
In cross-examination, to which she agreed, she described the props, similar to the manner in which she had answered her interrogatories, that they were small, light props that were not awkward or heavy for her to carry. There was no issue, as she said in evidence, with her getting to these props in position on the board. They were located, once she got on to the ladder, at a little over shoulder height.
Insofar as the accident report tendered yesterday, Exhibit M, the plaintiff described, when being asked to identify the reason for the accident and the manner in which the accident occurred, that the accident had occurred when she had slipped on a step. Clearly, her intent was not to damage these items – or props as they are called. She said in evidence that in fact at the fact at the time of the accident she was carrying three or four props, that she was holding them, in the sense of having her hands under those three or four props, and she was stepping down the steps when she missed the step, or her foot failed to catch the bottom step, and she was injured thereafter.

The judge gave consideration whether, in the circumstances, manual handling ‘would involve the task of utilisation of the ladder’. He concluded that he should approach the matter that way:

However, it seems to me in the manner in which one is required to interpret this legislation, as I have already indicated, the whole of the activity, that is the unpinning of the props, the movement of the props from the board and the lowering of the props down on to the ground to be stored, I find to be properly defined as being any activity, and the force involved in lowering that by way of her holding the three items, all of such activity, albeit being performed on a ladder, should be classified to come within the meaning of manual handling.

Then his Honour turned to the question of hazardous manual handling. He dealt with that issue as follows:

I find in the circumstances of this case, that all of the definitions contained in parts (a) and (b) thereof would be inapplicable to this case. The particular definition opened to the jury, and which [plaintiff’s counsel] has indicated in his particular submission as to this ruling, relied upon by the plaintiff is that as set out in part (c), being the “manual handling of unstable or unbalanced loads or loads that are difficult to grasp or hold”.
Upon the evidence, as I perceive it, the plaintiff, as a matter of law, could not put this case to the jury. There was, I find, albeit manual handling occurring throughout, from the time the props were taken from the pin-board to the time of the accident, no circumstances where it could be said that such load was an unstable or an unbalanced load or a load that was difficult to grasp or hold. I find, upon the evidence of the plaintiff, she had no difficulty, nor was there any restriction in her ability to lower that load, nor was such in any way a difficulty for her.

His Honour then referred in a conglomerate way to an aspect of causation and to hazardous manual handling, saying this:

The particular accident came about because, given the way that she held the load, her vision was impaired. As a result, she failed to make the appropriate step and that is the reason why this accident occurred. There is, I find, no circumstance whereby the definition of hazardous manual handling can be met in this case, that is, in my finding, there was no manual handling of an unstable or unbalanced load or a load which was difficult to grasp, that being the only definition applicable in this case. The pleading, as a matter of law, obviously cannot be put to the jury, and I so find.

Finally, his Honour concluded his ruling with the following observation, which was wide of the mark:

That obviously overcomes the issue as to the discovery and therefore there is no reason why we cannot proceed.

The aftermath of the ruling

The judge having delivered his ruling, appellant’s counsel submitted that this did not resolve ‘the issue of non-discovery’.

Counsel pressed on, submitting that the appellant’s case in negligence was that the respondent had no safe system of work at a relevant time. The 2005 policy, he submitted, went directly to the appellant’s allegation that the respondent did not have any system of work to deal with the risk faced by his client.

The judge’s response was that the document was a ‘motherhood statement, it says nothing’.

Asked by the judge what the respondent might seek to make of the document, respondent’s counsel replied “I wasn’t going to refer to the document at all”. He repeated that statement shortly afterwards.

It was then agreed, in discussion between the judge and appellant’s counsel, that his Honour would tell the jury that he had determined as a matter of law that the Regulations had no application in the circumstances of the case; and that a 2005 document had come to light which had not been seen by the appellant’s representatives until that time, which he had ruled could be used in the context of the case thereafter.

The judge so informed the jury.

Notwithstanding that respondent’s counsel had twice stated that he did not intend to refer to the 2005 policy in its complete form, appellant’s counsel recalled his client and took her to it in further examination-in-chief. Then he tendered the document. The appellant said that she had never seen the document, and that the contents and methodology of hazard identification had never been explained to her.

Pausing for a few moments to review the situation as it then stood, there is no doubt in our minds that in a number of respects this trial had followed an unsatisfactory course, and one which was unfavourable for the appellant. Whatever be the explanation, the full version of the 2005 policy was not in counsel’s hands when he opened and when he took the appellant through her evidence. Then the document was produced and, we emphasise, with the concurrence of both counsel, the judge immediately ruled upon the question whether the claim for breach of statutory duty would lie. His Honour did so – with the concurrence of counsel and thus without objection - before all the evidence to be called for the appellant had been adduced, and without getting an answer to his question whether all the evidence pertaining to the circumstances of the incident had been led. The ruling appears to have been made on the misconceived premise that it would resolve the appellant’s submission that the document should not be admitted into evidence.

In any event, the case having been opened in the way it was, and evidence having been led from the appellant consistently with an emphasis on the breach of statutory duty claim, the jury was now told that this cause of action had no application.

Despite this concatenation of circumstances unfavourable to the appellant’s case, her counsel did not seek that the jury be discharged. Rather, despite the fact that respondent’s counsel had twice distinctly stated that he would not be referring to the document, appellant’s counsel recalled his client so that he could put it to her. It appears that he wanted to be able to go to the jury on the basis that the document was ‘all motherhood’, and that it revealed that the respondent did not have a system of work for discovering and acting upon risks of injury.

A party is ordinarily bound by the way in which his or her case is conducted. The course which counsel followed involved the making of deliberate forensic choices. No complaint was made on appeal that the choices which counsel made produced an unfair trial, or were productive of a miscarriage of justice.

The further evidence

The appellant called a forensic consulting engineer, Bill Contoyannis. He made the points, inter alia, that - (1) the way in which the appellant performed the job meant that she did not have a hand free for stabilisation; (2) the items which she was carrying obscured her vision; (3) the job could have been done more safely had she had an assistant; and (4), there had been a want of training as to the risks created by the job – it being the fact that small ladders are productive of many accidents.

The respondent called Ms Sally Ann Morrison, a teacher at the school from 1999, and the occupational health and safety officer both before and at the time of the appellant’s accident.

She described how, before purchase of the steps, teachers had used chairs and tables to access the pin boards. A former Worksafe officer had recommended acquisition of the steps, and she had bought them out of school funds. They were still in use at time of trial. There had been no prior or subsequent accidents involving their use. Nor had there been any prior or subsequent complaints about their suitability. She had not investigated how teachers took art work down. She had not assessed that task. ‘Perhaps’, a teacher undertaking a task needed a steadying hand. When she bought the steps, she did not take into account the possibility that a teacher using them would have no free hand.

Ms Morrison also gave evidence with respect to attachment 7 to the 2005 policy and to the 2011 policy. That attachment was headed ‘Manual Handling – Hazard Identification Worksheet. One of the tasks identified was ‘Placing and removing displays from pinboards’. Provision was made in the document for identifying the hazard by reference to the definition of hazardous manual handling. In the tendered document, the part or parts of the definition, if any, which were relevant to the particular task were not identified by ticks. Ms Morrison said that attachment 7 was in that form when she downloaded the 2005 policy from a Catholic Education website. She said that there had been an assessment of the hazards at the school at some point. She also said, as we understand her evidence, that the document had been completed by the necessary ticking, and a copy given to every teacher; but she could not say that the 2005 document had been completed before the appellant suffered injury. The tendered document, she said, was a blank backup copy.[13]
[13]This evidence pertained to the 2011 policy. But it would seem to have applied equally to the 2005 policy which was put into evidence.

The ruling confirmed

After all the evidence had been adduced appellant’s counsel sought to re-visit the ruling. That course was open despite the forensic choices which counsel had earlier made.

Counsel submitted that the ruling had been ‘really determined too early and in particular before we had the evidence of Mr Contoyannis’.

Counsel submitted, in effect, that the load had been unstable or unbalanced, this meaning that the appellant had to use both hands to hold it, and thus that she did not have a hand free to steady herself.

The judge’s response was to say that there had been nothing unbalanced about the load in itself:

It wasn’t the load that unbalanced her, the problem that caused this accident was the fact that she didn’t see the step.

Counsel’s response was that –

because she didn’t have a free hand that… was what brought her down, that was the problem.

and

if she had had that free hand she wouldn’t have been able to hold the load the way she was holding it at the time she was descending.

Counsel submitted that the appellant’s primary argument at the outset had been that the load was inherently unstable or unbalanced because it was paper and quite moveable. But now there was a further aspect of the matter - that is, that the load was, as the judge put it, ‘difficult to grasp or hold in one hand’.

His Honour did not call upon counsel for the respondent. He said, simply:

Yes, I am not prepared to alter the ruling on that basis. It seems to me that the ruling is still appropriate.

Was the ruling correct? Conclusions

The nature of the judge’s task

Despite his Honour’s observation that it was against his usual practice to await the evidence before ruling upon a question of law — in this instance, ‘as to the applicability of the regulations relied upon’ — there is no doubt that he was not dealing with an application under rules of court to strike out the relevant parts of the statement of claim as not disclosing a cause of action. Nor was he dealing with an application by the respondent under s 61 of the Civil Procedure Act 2010 for summary judgment on the ground that part of the appellant’s claim had no real prospect of success. It is crystal clear from the observation of respondent’s counsel, noted at [40] above, that what his Honour was called upon to decide was the correctness or otherwise of a submission for the respondent that the evidence adduced did not permit a conclusion that the appellant had suffered injury in breach of the regulations.

In deciding whether that submission should be accepted or rejected, the judge had particular functions. The question whether the regulations imposed a duty upon the respondent to do or not do various things depended in the first place upon the true meaning of the Regulations upon which the appellant relied. The question: what was that true meaning — was one for the judge to decide. His task was informed by the approach which should be taken to the construction of legislation of this kind.[14] Most particularly, the judge had to construe the meaning to be given to the phrase ‘the risk of a musculoskeletal disorder associated with a hazardous manual handling task’. Within that phrase lay the concepts of manual handling, hazardous manual handling, musculoskeletal disorder, and the meaning of the expression ‘associated with’.
[14]As to which see, for instance, Surmon v Herald & Weekly Times [2011] VSC 628 [106] and the cases cited at fn 7.

Once he had completed that task, the judge’s function was at an end unless he was able to conclude that the evidence, viewed most favourably from the appellant’s standpoint, could not sustain a conclusion that the Regulations upon which the appellant relied were engaged. Unless the judge so concluded, it was for the jury to decide whether, on the evidence, the particular Regulations were engaged; and, if so, whether the appellant had proved breach and causation.

Two points should be made. First, to state the division of functions as we have done is conceptually correct, but is somewhat misleading. That is because, as this case illustrates, the issues with respect to construction were highlighted by the circumstances revealed by the evidence.

Second, in deciding whether to withdraw the particular cause of action from the jury’s consideration, the applicable test was that discussed by the members of the High Court in Naxakis v Western General Hospital.[15] That test is one to be applied, at least most often, at the conclusion of the evidence.
[15](1999) 1 97 CLR 269 (“Naxakis”).

In Naxakis, their Honours did not express the relevant test in exactly the same language, but the gist of their judgments is clear enough.

Gaudron J said this:

16It is well settled that, where there is a jury, the case must be left to them “[i]f there is evidence upon which [they] could reasonably find for the plaintiff”, or, as was said by Hayne JA in the Court of Appeal, the case can be taken away only if “there was no evidence on which the jury could properly conclude that the plaintiff had made out his case.” That does not mean that the case must be left to the jury if the evidence is “so negligible in character as to amount only to a scintilla”. However, if there is evidence on which a jury could find for the plaintiff, it does not matter that there is contradictory evidence or, even, as was said by Harper J at first instance, “that the overwhelming body of evidence points to the [contrary]”.
17Moreover, when considering whether there is some evidence upon which a jury could find for a plaintiff, it is important to bear in mind that the jury may properly accept parts of a witness's evidence and reject. Thus, for example, a jury may believe what is said by a witness in examination in chief and reject apparent modifications or qualifications elicited in cross-examination.[16]

[16]Ibid, 274-275 [16]-[17] (citations omitted).

McHugh J said that:

39Whether a defendant has been negligent is a question of fact, proof of which lies on the plaintiff. In a trial by jury that question is decided by the jury. But, before the trial judge can leave the question to the jury, the judge must be satisfied that the plaintiff has tendered evidence which, if believed, could induce a reasonable person to conclude that the defendant was guilty of the negligence alleged. At one stage in the development of the common law, an issue of fact would be left to the jury to determine where there was some evidence - even “a scintilla of evidence” - in support of the fact. That doctrine applied to issues of negligence as well as to other issues of fact. By the middle of the last century, however, it had become settled doctrine that a “scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendant, clearly would not justify the judge in leaving the case to the jury: there must be evidence upon which they might reasonably and properly conclude that there was negligence. So, when the defendant asks the judge to take away an issue of negligence from the jury on the ground that there is no evidence of negligence, the question is, as Willes J said in a non-negligence context, “not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.”
40When the defendant submits that there is no evidence to go to the jury, he or she raises a question of law for the judge to decide. The question for the judge is not whether a verdict for the plaintiff would be unreasonable or perverse but whether the plaintiff has adduced evidence which, if uncontradicted, would justify and sustain a verdict in his or her favour. An appellate court may later be able to set aside the verdict on the ground that it is unreasonable or against the weight of the evidence. But the function of the trial judge is more circumscribed.
41In determining whether there is evidence upon which the jury could properly find for the plaintiff, the trial judge must consider those parts of the evidence which, if accepted, could reasonably establish negligence - whether directly or inferentially. If such evidence has been tendered, it matters not that other evidence has been tendered that may contradict it even if the contradictory evidence comes from a witness, part of whose evidence is relied on to prove the negligence. It has long been established that a plaintiff is entitled to ask the jury to accept part - even a small part - of the evidence of a witness and to reject the rest of the witness's evidence. In Richards v Morgan, Cockburn CJ said “that the party ... calling the witness ... may do so not only without the intention of abiding by all the witness may say, but with the deliberate intention of calling on the Court or jury to disbelieve so much of the evidence as makes against him.” Moreover, it makes no difference whether “the evidence as makes against him” emerges in evidence-in-chief or in cross-examination. It is for the jury to determine what evidence is worthy of belief. Consequently, a plaintiff may have a case to go to the jury even though the evidence of each witness as a whole does not support the plaintiff's case and may even deny it.
42Furthermore, evidence given by a witness including the plaintiff in support of the claim of negligence will ordinarily have to be taken into account on a no case submission even if that evidence may appear to be contradicted or qualified, as a result of cross-examination. A jury which has heard and watched the witness give evidence may regard such apparent contradictions or qualifications as not having the weight that they might appear to have from a mere perusal of the transcript. The fact that the defendant has proved that the plaintiff has made out-of-court statements inconsistent with his or her claim does not entitle the defendant to a verdict. Similarly, the effect of apparent concessions or qualifications by the plaintiff or other witnesses under cross-examination are matters for the jury to evaluate. The jury might reasonably conclude, for example, that the “contradictions” or “qualifications” were the result of confusion, or of the domination of the witness by counsel for the defendant, or of an attempt to assist the defendant, rather than a true concession or admission. Unless in cross-examination, the plaintiff or other witness withdraws his or her evidence supporting a conclusion of negligence, the trial judge will ordinarily have to regard that evidence as uncontradicted in determining whether there is a case to go to the jury. As Dixon J pointed out in Hocking v Bell:
“There is no question in a trial that is regarded as so clearly within the exclusive province of the jury to decide as the reliance to be placed upon the evidence of a witness whom they have seen and heard. The fact must therefore be faced, that however little faith we as judges may have in all this, yet before the defendant can be entitled as a matter of law to a verdict he must so utterly destroy the plaintiff's narrative as to place it outside the competence of a jury to give any credence to the material parts of it, a thing which in my experience I have never seen done with reference to direct oral testimony given upon a civil issue.”

43Moreover, it is for the jury to determine not only what evidence they accept but also what inferences should be drawn from the evidence that they accept.
…
45Once the evidence in support of the plaintiff's case is isolated in accordance with these principles, the question for the judge is whether, directly or inferentially, that evidence might satisfy a reasonable jury that, on the balance of probabilities, the defendant was negligent. In considering that question, the judge is bound to bear in mind that a conclusion may be reasonable although other reasonable persons may draw an opposite or inconsistent conclusion from the same body of evidence. In Bradshaw v McEwans Pty Ltd, this Court pointed out that when a question arises as to whether there is evidence of negligence to go to a jury:
“All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.”

Unless the jury cannot reasonably say that one conclusion is more probable than the opposite conclusion, it is for them to say which is the more probable.[17]

[17]Ibid, 281-285 [39]-[43], [45] (citations omitted).

Kirby J referred to the ‘proper attitude of modesty and respect for the jury’s province’ which a judge must bear in mind[18] and stated that:

65… Wherever the judge becomes diverted into an expression of his or her own opinion on the facts; or a decision as to what the jury should find; or the balancing exercise which strictly lies within the province of the jury, error will have occurred which requires appellate correction.
…
67Where inferences may reasonably be drawn within the experience properly attributed to a jury of lay people, it must be assumed for the present purpose that the jury would draw the inferences available in a way favourable to the plaintiff. Although it is sometimes said by judges that the evidence proved is equally consistent with the presence and absence of negligence, experienced judges, with much knowledge of jury trial, have observed that it is “a very exceptional case” in which a judge, upon that ground, would direct a verdict for the defendant and deprive the plaintiff of the jury's verdict.
68If from these authorities the bias of the common law appears to be strongly in favour of receiving the verdict of the jury, this should cause neither surprise nor offence. Centuries of experience before this present age taught the general wisdom and reasonableness of the verdicts of civil juries. In respect of the perverse verdict considered to be against the evidence and the weight of the evidence, or for a verdict alleged to rest on an absence of evidence, or on mere speculation, conjecture or inadmissible hypothesis, appellate relief is now available in the appropriate case. But only in a clear case should the judge assume the responsibility of depriving all parties of the jury's verdict and directing or entering judgment in favour of one party.[19]

[18]Ibid, 293 [65].

[19]Ibid 293-294 [65], [67]-[68] (citations omitted)

Callinan J was opposed to the introduction of reasonableness into the test.[20] But his Honour’s approach did not reflect, as we perceive it, the majority opinion. In the present case, we add, it would not lead to any different outcome.
[20]Ibid 310-311 [122]-[123]

Prematurity

The judge’s ruling was premature. The evidence was not at an end. Indeed, the appellant’s case was far from completion when the ruling was made. Even assuming that there was to be no further firsthand account of the incident, that was far from saying, when the ruling was made, that there would not or might not be evidence touching upon the possible application of the Regulations.

It is true, on the other hand, that counsel for both parties agreed to the ruling being made when it was. So the judge is not to be criticised for embarking upon the task. But in our view it was necessary for his Honour to be especially careful before ruling at that stage that the breach of statutory duty case should be withdrawn from the jury’s consideration. Moreover, it was surely necessary for his Honour to carefully consider whether he should revisit and alter his ruling after further evidence had been adduced, at which point he was requested by appellant’s counsel to do so.

The fact that the ruling was delivered prematurely, when only part of the evidence in the case had been adduced, does not mean of itself that the ruling was erroneous. Neither can it be said from the mere fact that the judge peremptorily adhered to his ruling when all the evidence had been adduced, that the ruling thereby confirmed was wrong. In all, what occurred was irregular, but the ruling was not necessarily erroneous.

Beneficial construction

No complaint is, or could be, made that the judge erred in concluding that the Regulations were to be given a beneficial operation.

Manual handling

The respondent contended at trial that what the applicant was doing when she suffered injury did not constitute manual handling. The judge held to the contrary. In doing so, his Honour concluded, as we understand it, that the term manual handling should be construed to embrace the entire activity in which the appellant was engaged proximately to the time at which she suffered injury. That is, the activity involved, inter alia, lifting and carrying the displays down the steps, such activity involving ‘use of force’ sufficient to satisfy the definition of the term manual handling. His Honour so concluded although, as he put it, ‘[t]here is no doubt, on the evidence, that the work being performed by [the appellant] is characterised as particularly light’.

Understandably, the appellant did not challenge that part of the judge’s ruling in this Court, whilst the submissions for the respondent focused upon, and sought to support, the judge’s conclusion that the appellant was not engaging in hazardous manual handling at the relevant time. Even so, counsel for the respondent did submit that the activity in which the appellant was engaging was not manual handling at all.

Later in these reasons, we conclude that there was evidence upon which the jury could have found that the appellant was engaging in manual handling. Thus, whatever be the test which the judge applied, his ruling was correct in the result on that point.

Hazardous manual handling.

We have noted his Honour’s conclusions with respect to hazardous manual handling at [70] to [71] above.

In this Court, counsel for the appellant submitted that the judge misdirected himself. He had made his own findings of fact. He had not performed the task mandated by Naxakis. There was evidence of hazardous manual handling falling within paragraph (c) of the definition of that term.

Counsel for the respondent submitted, to the contrary, that the judge had applied the correct test. His Honour had identified the question as being whether there was a claim in law for breach of statutory duty and had stated that the appellant, on the evidence, ‘as a matter of law could not put the case for breach of statutory duty to the jury’. He had stated that there were ‘no circumstances where it could be said that the load was unstable’. In all, his Honour had correctly considered ‘whether the evidence could in law support a finding of breach of duty’.

It is unclear whether the judge applied the correct test in determining whether there was evidence capable of supporting a finding that the appellant was engaged in hazardous manual handling at the time when she sustained injury. In his Honour’s ruling, there is no reference to the Naxakis–mandated test. True it is that his Honour twice referred to the plaintiff being unable, ‘as a matter of law’ to put her case to the jury upon the evidence as he perceived it to be. But at several points also his Honour appeared to make positive findings that the appellant had not been engaged in a relevant activity when she sustained injury. It may be, by his findings, that his Honour was intending to do no more in each instance than make a finding on application of the Naxakis test. But that is not obvious.

If the judge did apply the correct test, we think it is very clear that he erred in concluding that, when she sustained injury, there was ‘no evidence’ (as explained in Naxakis) upon which the jury could reasonably find that the plaintiff was engaging in hazardous manual handling at the critical time. Upon an assumption that the pertinent Regulations had application in this case, and assuming that what the appellant was then doing involved manual handling, there was evidence that it involved handling an unstable load and, possibly, one that was difficult to hold. In that connection, it was immaterial that the load was unquestionably light. The plaintiff’s evidence noted at [20] and [24] above admitted of that conclusion. This was so despite the cross-examination and the answer to interrogatory noted at [22]-[23] above.

In this Court, appellant’s counsel submitted that there was other evidence which enabled a conclusion by the jury that the task which the appellant was performing involved hazardous manual handling. He referred to attachment 7 to the 2005 policy, the evidence pertaining to which was given by Ms Morrison as noted at [87] above. He referred also to manual handling risk assessment 17. There was, we consider, some force to counsel’s submission that these documents were some evidence of a relevant admission by the respondent.

Thus, if the only question was whether 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) of the definition of hazardous manual handling, we consider that the judge erred in his ruling.

But there was a deeper question involved: that is, whether upon their proper construction the Regulations upon which the appellant relied had any application in the particular circumstances. That was a question of statutory construction, even though its resolution could not be divorced from the circumstances in which the appellant suffered injury. The question fell within the judge’s domain: see [96] above. The fact that the judge did not distinctly address it does not preclude this Court from doing so. If the Regulations upon which the appellant relied had no application, then the judge’s error would be immaterial because the ruling itself would be correct.

Construction of the Regulations

Digby AJA has set out, in his reasons, in some detail, considerations which bear upon the task of statutory construction. We refer to and respectfully accept the thrust of what his Honour has said in that connection with respect to a forward-looking approach,[21] what is meant by ‘reasonably practicable’,[22] reasonable foreseeability,[23] breach irrespective of accident or injury,[24] factual causation[25] and legal causation.[26]
[21]Digby AJA reasons [289] to [291].
[22]Digby AJA, [295]–[305].
[23]Digby AJA, [306]-[313].
[24]Digby AJA, [314]-[322].
[25]Digby AJA, [325]-[333].
[26]Digby AJA, [334]-[341].

Against that background, the starting point is the definition of manual handling. The definition speaks of an activity requiring ‘use of force’ when handling an object. Thus the activity is not one simply involving the handling of an object. That would give the expression ‘use of force’ no work to do. On the other hand, ‘use of force’ may be contrasted with the concepts of ‘repetitive or sustained application of force’ and ‘application of high force’ which are part of the definition of hazardous manual handling.

What, then, is comprehended by the expression ‘use of force’? We would accept that its meaning is effected by the entire context in which an activity is undertaken. A job may be more physically demanding if undertaken in one work context rather than in another context. A job performed in the open, on a flat surface, may be contrasted with the same job performed in a cramped environment, or perhaps on a ladder or steps (a point properly emphasised by appellant’s counsel in his submissions in this Court). But none of this gainsays that the definition of manual handling requires ‘use of force’.

The Court was referred to observations by Kaye J in Surmon v Herald & Weekly Times[27] and by J Forrest J in Lindsay-Field v Three Chimneys Farm Pty Ltd.[28]In each instance, the observations were strictly obiter dicta, because their Honours had already found for the plaintiff by reason of breach of the employer’s common law duty of care. What can be said is that, in Surmon, Kaye J was prepared to accept that the repetitive performance of tasks, all but two of which were quite light, in each instance constituted manual handling, though not hazardous manual handling.[29] Again, in Lindsay-Field, J Forrest J concluded, if the plaintiff’s activity should be broadly considered so as to encompass the tying-up of a mare’s afterbirth (which was in prospect when the plaintiff was kicked by the mare and suffered injury), that he was ‘not satisfied that any true application of force was likely to be involved in this exercise’, for which reason it would not fall within the definition of manual handling.[30]
[27][2011] VSC 628 (‘Surmon’).
[28][2010] VSC 436 (‘Lindsay-Field’).
[29]Surmon [106].
[30]Lindsay-Field [103].

In this Court, respondent’s counsel submitted that the force referred to in the definition must be ‘real force’.

Use of the adjectives ‘true’ and ‘real’ to explain what is comprehended by the expression ‘use of force’ in the definition emphasises, we think, the fact that the expression must be given application. But those adjectives do not carry the matter very far. In all, everything will depend upon the circumstances (or anticipated circumstances) of the handling of an object. There will need to be an evaluation in every instance whether the expression ‘use of force’ is satisfied.[31]
[31]Or, on a no case submission, whether it would be reasonably open to the trier of fact, on the evidence, to find that the activities involved the use of force.

In the present case, essentially for the reasons given by the judge, we consider that there was evidence upon which the jury could reasonably conclude that the appellant was engaged in manual handling when she sustained injury.

That takes us to the definition of hazardous manual handling, because each of the Regulations upon which the appellant relied make use of that term.

The definition of hazardous manual handling itself contains no reference to the risk of associated musculoskeletal disorder. That is so although at least most of the subparagraphs of the definition seem to imply the likely existence of such a risk (for example, manual handling involving ‘repetitive or sustained application of force’, ‘repetitive or sustained awkward posture’, ‘repetitive or sustained movement’ and ‘application of high force’).

Likewise, regulation 3.1.1. simply obliges an employer to identify, so far as reasonably practicable, tasks undertaken or to be undertaken ‘involving hazardous manual handling’.

To the contrary, regulations 3.1.2. and 3.1.3. impose duties of control and review where there is ‘the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee’ (Regulation 3.1.2.(1)(2)(3)) and ‘risks in relation to musculoskeletal disorders’ (Regulation 3.1.3.(1)).

It may next be observed that paragraph (a) of the definition of hazardous manual handling focuses almost exclusively on repetitive or sustained manual handling. By contrast, in our opinion, paragraphs (b) and (c) of the definition admit of singular activity. They do so despite the use of the plural, which is explicable because the identification of hazardous manual handling in prospect may well involve a task of the kind contemplated by paragraph (b) or (c) which is undertaken or to be undertaken on multiple occasions. In that connection, Regulation 3.1.1.(2) is in point.

So it should be accepted, we think, that hazardous manual handling, for the purposes of paragraph (c) of the definition, can be constituted by a single episode of manual handling of an unstable or unbalanced load or one that is difficult to grasp or hold; and that for an episode to fall within the purview of paragraph (c), it is not necessary that the activity carry with it the risk of associated musculoskeletal injury.

If one were to stop there, upon the conclusion which we have reached that there was evidence fit to go to the jury that the load being carried by the appellant was unstable or unbalanced (or, possibly, difficult to grasp or hold), it could be said that Regulation 3.1.1 was potentially engaged. We say ‘potentially’, because it would still be necessary to consider whether there was evidence which could satisfy the ‘so far as is reasonably practicable’ requirement; and because, in any event, a causation issue would arise. Further, identification of hazardous manual handling is in substance only the precursor to the obligations which are imposed by Regulations 3.1.2 and 3.1.3.

We turn to those two regulations, and particularly to the concept of ‘the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee’.

We have set out the definition of musculoskeletal disorder at [31] above. It is in the same language as was used by the predecessor regulations. The scope of the disorders comprehended by the definition is, construing the definition beneficially as it should be, quite wide. It is evidently not limited to overuse injuries.[32] So much is clear from the inclusion in the definition of the word ‘injury’ and the words ‘occurring suddenly’. It is also evident from the specific exclusion of certain traumatic injuries which, inferentially, would otherwise fall within the definition.
[32]Such as carpal tunnel syndrome, tendo-thoracic outlet syndrome, and the like.

We would accept, then, that the sustaining by an employee of traumatic injury – for instance, to a knee, as occurred in this instance - could, as a matter of fact, fall within the definition of musculoskeletal disorder.

But the question which then arises is what is comprehended, in Regulation 3.1.2, by ‘the risk of a musculoskeletal injury associated with a hazardous manual handling task’?

We do not accept that it is enough to show that an appellant in fact suffered a musculoskeletal injury whilst performing a hazardous manual handling task. We consider that, if such a connection was sufficient, the expression ‘associated with’ would not be given due regard.

It is an expression which is found, but left undefined, at least in legislation relating to - (1) accident compensation, (2) competition and consumer law, (3) corporations law, (4) criminal law, (5) customs law, (6) family law, (7) insurance law, (8) motor and traffic law, (9) occupational health and safety law and (10) planning and wills. It appears to be characteristic that the expression takes colour from its context.

In Burton’s Legal Thesaurus, the word ‘associated’ is said to carry the meanings, inter alia, of: allied, closely allied, closely related, connected, coupled, joined, linked, related and united.[33]
[33]William C Burton, Burton’s Legal Thesaurus (McGraw Hill, 4^th ed, 2007).

In Kia Australia Limited v The Chief Executive Officer of Customs,[34] Finkelstein J had to consider the meaning which should be given to the expression in a section of the Customs Act 1901 (Cth) which was concerned to ensure that customs duty should not be minimised. The provision referred to the situation in which a purchaser’s agent ‘is not also the agent of the vendor or otherwise associated with the vendor except as agent of the purchaser’. His Honour said this:
[34](1998) 86 FCR 473.

I can now turn to the meaning of the word ‘associated’. To arrive at a meaning that requires a choice between several ordinary meanings it is appropriate to adopt that meaning which better carries out the objects of the Act: Armstrong v Clark [1957] 2 QB 391. It is also necessary to avoid irrational and illogical consequences: R v Skeen & Freeman (1859) 169 ER 1182.[35]
[35]Ibid, 480.

and

…the association must be something more than a mere “connection” between the agent and the vendor or supplier. It also suggests that an agent to whom a commission is paid will relevantly be “associated with” the vendor or supplier if the agent and the vendor or supplier are acting together or have some common purpose in relation to the goods referred to … or the services referred to… [36]

and

… to give the word “associated” a meaning that would have the effect that a mere holding of shares by the agent in the vendor would constitute an association is to give the word a meaning that will produce unreasonable results. Why should it be supposed that the Parliament intended that any connection between the agent and the vendor however remote, should affect the character of the commission that is paid to the agent?[37]

[36]Ibid.

[37]Ibid.

Of course, his Honour’s analysis had regard to the particular circumstances of the legislation under consideration. But in our opinion the approach which he took to construing the legislation is of general application (except where the expression is given a special meaning) and is pertinent in the present connection.

We have kept to the forefront in our considerations the fact that the Act and the Regulations are concerned with workplace safety, and in that connection with the identification and elimination or alleviation of risks to health arising from workplace activities. But it is in our opinion consistent with that purpose that the Regulations should be construed to require a close connection between the activity and the anticipated risk of harm. 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 because an employee sustained injury in a manner tenuously connected with a workplace activity.

One can easily perceive the prospect of an employee sustaining injury which has intimate connection with the kinds of activity described in paragraph (a) of the definition of hazardous manual handling. Likewise, it is easy to contemplate — see paragraph (b) of the definition — that an abattoir worker handling a live beast or a nurse looking after a patient might suffer injury intimately related to the performance of that work activity. As to paragraph (c), handling an unstable load might readily be perceived to carry the risk of strain being suddenly and unexpectedly placed on some part of an employee’s body. These are but instances where the conception of the risk of injury ‘associated with’ the work activity could be seen to sensibly operate, and be such as to require identification and the taking of remedial action. Moreover, viewed prospectively, an employer could and should readily identify the task to be performed as one involving hazardous manual handling; and, because it would evidently carry a risk of associated injury, take steps to eliminate or alleviate that risk.

But why it should be regarded as reasonably practicable for an employer considering the generic task of removing light displays from pin boards using steps of the kind used by the appellant to conclude that the task would, or even might, involve hazardous manual handling? Even if awkwardness in handling such displays might somehow be conjectured, why would an employer reasonably postulate that the task would fall within paragraph (c) of the relevant definition? The circumstances in which the appellant suffered injury really illustrate the point. Assuming that the task nominally fell within paragraph (c) of the definition, it appears to have done so because the appellant chose to handle multiple displays at the one time, which meant holding them horizontally.

I accept the Appellant’s submission that the First Ruling was premature. It was not appropriate or fair to the Appellant to rule on whether, assessed in the manner required by Naxakis v Western General Hospital,[122] the Appellant’s statutory cause of action for breach of the Regulations enjoyed any real prospect of success, at a juncture in the trial at which not all potentially relevant evidence had been adduced. This important interlocutory evaluation should have taken place at a point in the trial when all relevant evidence, pertinent submissions and other material considerations were before the trial judge.
[122](1999) 197 CLR 269, 271-2 [1]-[3] (Gleeson CJ).

Notwithstanding that at the time of the First Ruling the parties agreed to a determination of the Respondent’s application at that stage of the trial, this Court is empowered to, and should, intervene to ensure that proceedings are ultimately conducted in a manner which is just and fair, and the agreement or acquiescence of parties to an inappropriate and unjust procedure which may result in a substantial miscarriage of justice will not preclude appellate intervention.[123]
[123]Supreme Court (General Civil Procedure) Rules 2005 reg 64.36(2)(b); Supreme Court Act 1986 s 10; Green v Emergency Services Telecommunications Authority [2014] VSCA 207 [72]-[73].

Furthermore, for the reasons set out below, I consider that the Appellant has a real prospect of success on her cause of action of breach of statutory duty, assessed at the time of the Second Ruling when all relevant evidence was available.

Accordingly, I do not consider it necessary to decide whether the trial judge’s reasons justifying the First Ruling were inadequate beyond observing that, given such reasons were expressed at a time when they could not have addressed all potentially relevant evidence, such as the then yet to be adduced evidence of the Appellant’s expert Mr Contoyannis, they were necessarily premature and incomplete.

The First Ruling therefore wrongly deprived the Appellant of her rightful opportunity to have the jury consider and decide her cause of action for breach of statutory duty and therefore cannot stand.

In my view in this matter it is appropriate to evaluate whether the Appellant enjoyed a real prospect of success in respect of her cause of action for breach of statutory duty as at the time the learned trial judge made the Second Ruling. Assessment at this point permits this Court to take into account all the evidence potentially relevant to the Appellant’s statutory cause of action, and to do so on the basis most favourable to the Appellant, assuming that all the evidence favouring her is accepted and also assuming that available inferences are drawn most favourably to the Appellant.

Furthermore, I consider that at the time of the Second Ruling, the learned trial judge should also have reconsidered all the evidence potentially relevant to the Appellant’s statutory cause of action. I am persuaded that the learned trial judge did not do so. This is sufficiently apparent from the trial judge’s failure at the time of the Second Ruling to refer in any detail to the evidence potentially relevant to the Appellant’s statutory cause of action which had been adduced subsequent to the First Ruling including, in particular, all the relevant evidence of Mr Contoyannis.

At the time of the Second Ruling, after very short submissions, the trial judge confirmed that he was not prepared to alter his First Ruling on the basis argued by Counsel for the Appellant, namely that the Displays being handled by the Appellant were difficult to grasp or hold in one hand, and had to be held in both hands, resulting in the Appellant not being able to get safely down the ladder.

I consider that full consideration of the evidence before the jury at the time of the Second Ruling would have established that the Appellant’s cause of action for statutory breach should be considered by the jury because the evidence at that point in the trial, considered in the context of the Appellant’s pleaded case and the applicable law, gave rise to a real prospect of ultimate success on that cause of action.

The Appellant’s identifiable prospect of success on the cause of action for breach of statutory duty is based upon:

(s) The objects of the Act and the Regulations which are designed to protect workers from injury and as such should not be given a narrow interpretation.[124]
[124]See [280]-[299] above.

(t) The Appellant’s task of demounting the Displays was arguably a manual handling task in accordance with, or of the type contemplated by, reg 1.1.5, because that activity required the Appellant to lift and lower and carry, move and hold the Displays. The trial judge accepted this proposition.

(u) The whole of the activity of unpinning the Displays, the demounting of the Displays from the pin board and the lowering of the Displays down to the ground utilising the stepladder arguably being a related set of activities constituted manual handling. The trial judge accepted this proposition. The manual handling by the Appellant was also arguably ‘hazardous manual handling’ within the scope of the Regulations because the subject activity was in respect of an unstable and/or unbalanced load and/or a load that was difficult to grasp and/or hold on the bases of the Appellant’s evidence and that of the expert witness Mr Contoyannis.

(v) Evidence of the Appellant included that the Displays were unstable and that the Displays were difficult to grasp and hold, necessitating both hands to ensure that the Displays were not damaged as they were taken down from the classroom pin board and held steady as the Appellant descended the stepladder. The Appellant‘s evidence on this aspect included that when handled the Displays buckled in the middle, and that the Displays could not be effectively grasped with one hand, and that when the Appellant held the Displays while standing on the stepladder, she could not look past the Displays to see the stepladder as she was descending. The evidence of Mr Contoyannis included his evidence that the Displays were unbalanced and were difficult to grasp and hold.

(w) It was open to the jury to find that prior to the Appellant’s Accident and injury, the Respondent had identified the task of hanging paper and cardboard displays in classrooms and hallways, which involved climbing a ladder to hang a light display,[125] as a task which involved ‘handling loads that are unstable, unbalanced or difficult to move’. Conversely, it was also open to the jury to find that, at the time of the Accident, the Respondent had not identified and assessed the relevant risks associated with that task.
[125]Manual Handling Risk Assessment (17), C43.

(x) The Respondent had in its 2005 OH&S Policy identified for assessment, in its Manual Handling – Hazard Identification Worksheet, the task of placing and removing displays from pin boards. In part of that Worksheet were a number of blank boxes to be considered at the time of assessment. One of those blank boxes required the assessment of whether placing and removing displays from pin boards constituted ’handling loads that are unstable unbalanced or difficult to move’.[126] The Respondent’s evidence failed to establish that the Respondent had implemented the 2005 OH&S Policy prior to the date of the Accident on 19 September 2007.
[126]C 79.

(y) Regulation 3.1.1 required the Respondent to identify any task involving hazardous manual handling. It was open on the evidence for the jury to conclude that in breach of the Regulation the Respondent had failed to undertake and complete such identification.[127]
[127]Ibid C79. See also the evidence of Ms Morrison that she was unable to state whether there had been any implementation of the 2005 OH&S Policy (Exhibit O) at or prior to 19 September 2005.

(z) It was open to the jury to find that the Respondent’s pre-accident Manual Handling Risk Assessment (17) made certain Risk Control Recommendations, however, those recommendations did not include ensuring that the task in question was one undertaken with the assistance of another person so that the staff member demounting hanging paper or cardboard displays could hand those objects to the assistant before descending any ladder used in undertaking that task and thereby have their hands free to enable them to make a stable and safe descent of the ladder.

(aa) The evidence of Mr Contoyannis included his opinion that the Respondent’s procedures in relation to the task in question should have included an instruction that where demounting displays required the use of both hands, an assistant should be available to whom the person holding the demounted displays can hand those objects.

(bb) The Appellant’s evidence was that she was not provided with any OH&S policy applicable to the task she was performing when the Accident occurred, nor was she given any warning or instruction in relation to how she should perform the task in question, save that the Appellant complied with the instructions on the stepladder itself.

(cc) Regulation 3.1.2 required the Respondent to reduce the risk of a musculoskeletal disorder associated with a hazardous manual handling task by, insofar as reasonably practicable, changing the relevant systems of work used to undertake that task.

(dd) On the evidence, outlined above, the Respondent’s systems of work used to undertake the relevant task should arguably have been altered to ensure that a person in the Appellant’s position was assisted by another person when demounting displays and before descending the ladder used for that task.

(ee) Arguably, the relevant hazardous manual handling task of demounting cardboard displays included the process of the person involved descending the ladder used to access such displays. That is, the task included the ascent and descent of any required ladder to effect the overall task.

(ff) The musculoskeletal disorder associated with the relevant hazardous manual handling task is one which may arise in whole or in part from manual handling in the workplace, including a disorder which occurs suddenly. Arguably, the Appellant’s injury which resulted from the Accident was one which occurred suddenly as a result of the Appellant’s handling of the manual load.

(gg) The breaches of the Regulations relied on by the Appellant arguably caused or materially contributed to the occurrence of the Accident and the Appellant’s injuries.

I again note that on this appeal the Court is addressing the Appellant’s case below, and its treatment by the trial judge, from an interlocutory perspective. In that context the question is whether or not it was justifiable for the trial judge to conclude that the Appellant’s case alleging breach of statutory duty should be taken from the jury because it had no real prospect of success.

For the reasons set out above I consider that on the evidence adduced at trial by the time of the Second Ruling, the Appellant’s task of demounting the Displays at an elevated height by using a stepladder was a task which arguably involved manual handling of unstable and unbalanced loads which were also difficult to grasp or hold, notwithstanding that they were individually and, when a number were combined, relatively light. That task also arguably involved all associated related activities including ascending and descending the stepladder used to reach the elevated Displays.

Furthermore, I consider that the task in question was arguably a task with associated risk which the Respondent failed to eliminate per sub-reg 3.1.2(1) and/or failed to reduce as far as was reasonably practicable by altering the systems of work used by the relevant staff of the Respondent to undertake the subject task.

Further, the Respondent’s failure to ensure that assistance was provided when the loads were being handled by a person using a ladder arguably gave rise to the Appellant’s risk of a fall when ascending or descending the ladder used.

Accordingly, I consider that, on the evidence before the learned trial judge, an arguable breach of reg 3.1.1 existed. This is because the Respondent’s attempted hazard identification process reflected in its Manual Handling Risk Assessment (17) included an arguable failure to include in the ‘Risk Control Recommendations’ that the person undertaking the Job/Task of hanging paper and cardboard displays must be assisted by another member of staff to whom such displays can be handed when displays are being demounted from a height which requires the use of a suitable ladder. This ‘Risk Control Recommendation’ should arguably have included a recommendation that the staff member demounting the cardboard display with the use of a suitable ladder passes all demounted displays to the person assisting, before descending the ladder.

Accordingly, in my view on the evidence before the trial judge at the time of the Second Ruling, it was arguable that a breach of regs 3.1.1 and 3.1.2(1) and (2)(a)(iii) was made out thereby giving rise to a private cause of action for breach of those regulations.[128]
[128]Govic v Boral Australian Gypsum Ltd [2015] VSCA 130.

Further, in my view it is arguable that the breaches of the Regulations to which I have referred were the cause of, or materially contributed to, the Appellant’s Accident and consequent injury. This is principally because if the Respondent had adequately fulfilled its duty to identify the risk associated with hazardous manual handling tasks of the type involving the use of a ladder to mount and dismount displays on an elevated classroom pin board and had also adequately altered the relevant system of work to eliminate or minimise the risk of injury in relation to that task by recommending and instructing that the person undertaking that task be assisted in doing so, it is arguable that the Appellant’s Accident and resultant injury would not have occurred.

Rulings removing the Appellant’s breach of statutory duty case from the jury

Furthermore, the Appellant’s claim is not stripped of real prospects of success because the Displays which the Appellant was handling were not heavy or awkward for her to carry. This is because the Regulations are arguably engaged by reason of the relevant load being unstable or unbalanced or difficult to grasp in the circumstances, prevailing at the time that load was being handled. In this regard the particular facts in this case are distinguishable for those before this Court in both the Three Chimneys Farm[129] case and the Surmon[130] case, referred to above.
[129][2010] VSC 436.
[130][2011] VSC 628.

Accordingly, the Appellant’s cause of action for breach of statutory duty should, in the particular circumstances of this proceeding, have been allowed to be considered and decided by the jury.

The trial judge’s Second Ruling does not reflect a consideration of all the potentially relevant evidence adduced after the time of the First Ruling, including the expert engineer’s evidence. A component of that experts evidence was that in the circumstances the Appellant should have been instructed to ensure that she was assisted with the load she was handling, if handling the load required both her hands.

The effect of the First Ruling and the Second Ruling

The First and Second Rulings resulted in the jury considering an unfairly limited Appellant’s case. The First Ruling removed the Appellant’s case relying on breaches of statutory duties arising pursuant to the Regulations. The removal of that part of the Appellant’s case at trial also resulted in the removal of the components of the Appellant’s case in negligence which was based on the Respondent failing to comply with the Regulations.[131]
[131]Refer to [189] above.

As a result of the First Ruling and consequent wrongful excision of the Appellant’s cause of action for statutory breach of duty, the trial below proceeded on a basis confined to the Appellant’s claim in negligence, and although not actively pressed, her claim for breach of contract.

It is likely that after the First Ruling, evidence potentially material to the Appellant’s cause of action for breach of statutory duty was not adduced. In such circumstances it would be inappropriate and unjust for this Court to consider the questions of liability, either in relation to the Appellant’s case in breach of statutory duty or the Appellant’s case in negligence, when because of the interlocutory rulings in question the Appellant has been forced to restrict her case at trial. It may be that in the result the Appellant did not put forward additional evidence which was available in respect of the breaches of the Regulations, including as part of the Appellant’s case in negligence. At least a risk of that being the case exists.

Inadequate reasons for the Second Ruling — Ground 5

Because I have concluded that the First Ruling excising the Appellant’s cause of action for statutory breach and the Second Ruling affirming that earlier Ruling were in error and that the whole of the Appellant’s case should be remitted for retrial, I do not consider that it is necessary to deal further with the trial judge’s reasons for the Second Ruling.

Failure to charge the jury as to the Respondent’s breach of the 2005 OH&S Policy — Ground 6

This ground of Appeal alleges error below because the trial judge did not charge in relation to the Respondent’s alleged breach of the 2005 OH&S Policy, even though Ms Morrison of the Respondent did not give evidence as to the implementation of that Policy prior to 19 September 2007.

Given my conclusions in relation to the Appellant’s principal Grounds of Appeal and decision to remit all questions of liability and damage, it is also not necessary to further deal with Ground 6.

Negligence and contributory negligence — Ground 9 and 10

It is convenient to deal together with Grounds 9 and 10 of the Appellant’s Notice of Appeal.

Ground 9 asserts that the trial judge erred in leaving the Respondent’s case of contributory negligence for the consideration of the jury and failed to provide adequate reasons for so doing.

Ground 10 asserts that the verdict of the jury that there was no negligence on the part of the Respondent which was a cause of injury to the Appellant was perverse and not open on the evidence.

As a result I would uphold the Appellant’s appeal in relation to Grounds 1, 3, 4, 5, 7 and 8. Consequently, I consider it would be appropriate to remit all issues in the proceedings for retrial. Accordingly, it is not necessary for me to further consider the Appellant’s Grounds 9 and 10. Questions of contributory negligence and the correctness of the jury’s verdict below would properly be addressed by the remittal of this proceeding to a new trial.

The trial judge’s charge in relation to the drawing of inferences

The Appellant’s Notice of Appeal[132] raised the question of whether the trial judge erred in leaving the case of contributory negligence for the jury’s consideration, in circumstances where the Appellant submits she was left to her own devices to design and implement her own system of work. One of the alleged circumstances relied on by the Appellant in support of her case that she was left to design and implement her own system of work was the inference the Appellant submits should be drawn from the Respondent’s failure to call Mr McGrath, the School Principal.[133]
[132]Appellant’s Notice of Appeal [9].
[133]Ibid [9](f).

The Appellant’s Notice of Appeal[134] also raises the question of whether the jury’s verdict that there was no negligence by the Respondent was perverse and not open. One of the circumstances relied on by the Appellant as establishing that the jury’s verdict of no negligence was perverse is the inference which the Appellant submits should be drawn from the Respondent’s failure to call Mr McGrath.[135]
[134]Ibid [10].
[135]Ibid [10](g).

The trial judge charged the jury in relation to the proper approach to the evidence presented at trial, and in particular what inferences could be drawn from the Respondent’s failure to call Mr McGrath. Part of his Honour’s charge was as follows:

You must not draw an inference as to a fact or inference from facts that is unfavourable to a witness or unfavourable to a proposition, or indeed, in favour of a proposition opposed by one or other of the parties unless it is the only reasonable inference to be drawn on those facts. It is very important for you to remember that. If it is not the only inference, then you cannot draw that inference.

In Chapman v Cole[136] Callaway JA stated:

In a civil trial the question is whether to draw an inference on the balance of probabilities^{- 8}and there need only be circumstances raising a more probable inference in favour of what is alleged; but, before it can be drawn, the inference must be something which follows from given premises as being at least probably true.
…
The test was not whether an inference of malice was ‘the only inference reasonably open’. That is the test in a criminal case. Similarly, the appellant did not have to show that, if the underlying facts were accepted, an inference ‘necessarily’ followed...[137]

[136](2006) 15 VR 150.

[137]Ibid 154 [14]-[16], citing Transport Industries Insurance Company Ltd v Longmuir[1997] 1 VR 125 (‘Longmuir’), 129 (Winneke P); Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5, quoted in Longmuir [1997] 1 VR 125, 141 (Tadgell JA) and Gurnett v Macquarie Stevedoring Company Pty Ltd (1955) 55 SR (NSW) 243, 248 (Street CJ).

The correct articulation of the level of satisfaction required in order to properly draw an inference in the context of a civil trial, including on the part of a jury, is also well flagged at Part 1.7 of the Civil Juries Charge Book.

The above extracted charge given by the trial judge here was one which outlined the test appropriate to the Court drawing inferences in a criminal case, and was not correctly charged to the jury in this civil proceeding.

For the above reasons the trial judge’s above charge to the jury was inappropriate in relation to the circumstances in which the jury was entitled to draw an inference.

However, as a result of my conclusions in relation to the Appellant’s principal Grounds of Appeal, it is unnecessary to further consider the significance and possible consequences of the trial judge’s erroneous charge in relation to the drawing of inferences.

Decision

For the above reasons I would allow the appeal in relation to Grounds 1, 3, 4, 5, 7 and 8 and set aside the trial judge’s Order made 2 September 2014.

I do not consider that it would be appropriate to make the orders sought by the Appellant for this Court to determine whether there was negligence or breach of statutory duty on the part of the Respondent and thereafter determine the Appellant’s damages. Nor do I consider it would be appropriate to accede to the alternative orders sought by the Appellant seeking to have this Court to determine for itself whether there was any negligence or breach of statutory duty by the Respondent and to remit the proceeding for retrial in the County Court on the issue of the Appellant’s entitlement to damages above.

It would, in my view, be inappropriate and unjust for this Court to address either questions of liability on the Appellant’s case as to breaches of statutory duty or negligence, because, as a result of the Appellant’s case based on statutory breach not being able to proceed after day three of the trial below, and because the Appellant’s case in negligence was limited by the removal of the Appellant’s reliance on breaches of the Regulations to support her cause of action in negligence, there is an unacceptable risk that the evidence adduced at trial is incomplete. Further, in such circumstances, where liability is yet to be determined, no assessment of damages is appropriate.

In the circumstances I consider that the proceeding should be remitted for retrial on all issues. In my view this course is just and appropriate because as a result of the error below associated with removing the Appellant’s cause of action for breach of statutory duty and because as a result the Appellant’s case presented to the jury was unfairly and inappropriately confined.

For the reasons I have stated I would allow the appeal and I would make the consequential orders to which I have referred.

[2015] VSCA 191

24 July 2015