SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0095
| MIHAJLO DUMA | Appellant |
| v | |
| MADER INTERNATIONAL PTY LTD | Respondent |
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| JUDGES | NEAVE and TATE JJA and DAVIES AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 28 September 2012 |
| DATE OF JUDGMENT | 20 February 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 23 |
| JUDGMENT APPEALED FROM | Duma v Mader International (Unreported, County Court of Victoria, Judge Parrish, 10 June 2011) |
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TORTS – Breach of statutory duty – Manual handling – Duty to eliminate or reduce an employee’s risk of incurring a musculoskeletal disorder so far as is practicable – Duty to undertake a risk assessment with respect to tasks involving hazardous manual handling – Causation – Whether verdict that breach of statutory duties did not cause injury open on the evidence – Occupational Health and Safety (Manual Handling) Regulations1999 regulations 13, 14, 15 – Appeal dismissed – Betts v Whittingslowe (1946) 71 CLR 637, Bennett v Minister of Community Welfare (1992) 176 CLR 408, Roads and Traffic Authority v Royal (2008) 245 ALR 653, considered.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr A D B Ingram with Ms M Pilipasidis | Nowicki Carbone & Co |
| For the Respondent | Mr J Ruskin QC with Ms B Y Knoester | Minter Ellison |
NEAVE JA:
I agree with Tate JA that the verdict reached by the jury was reasonably open to it. It follows that the appeal must be dismissed. I wish only to add a brief comment on the issue of causation.
Clearly, the breach of an occupational health and safety regulation, no matter how unrelated to the occurrence of the injury, cannot automatically establish a presumption that the injury was caused by that breach.[1] However, in many circumstances, such a breach will give rise to a strong inference that the breach of statutory duty was a cause, if not necessarily the sole cause, of the injury.[2]
[1]See Tate JA’s reasons at [63].
[2]Betts v Whittingslowe (1946) 71 CLR 637, 649 (Dixon J), 651 (McTiernan J, who expressed the view that the breach established prima facie that the breach was the cause of the injury).
If such inferences could not normally be drawn, even plaintiffs who were injured in the context of egregious breaches of occupational health and safety regulations would be met with the very high burden of establishing the precise aetiology of the injury they suffered. This would create particular difficulties for plaintiffs who, because of psychological trauma suffered as a consequence of the injury, could not recall the precise sequence of events which preceded it. Similar difficulties would be faced by plaintiffs who suffer injury in the context of having performed repetitive tasks over a considerable period, where the employer has not satisfied occupational health and safety requirements designed to avoid the occurrence of such injuries. Too great an insistence on the need to demonstrate the mechanism of the injury to a fine degree would permit defendants to unfairly escape liability for injuries suffered by plaintiffs,…
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- Case
- [2013] VSCA 23
- Decision Date
CaseChat Overview and Summary
The court considered the statutory provisions and the relevant case law. The court noted that the statutory duty was not absolute but required the employer to take reasonable steps to eliminate or reduce the risk of injury so far as is practicable. The court held that the trial judge had erred in finding that the employer had not breached its duty, as there was evidence that the employer was aware of the risk of injury and had not taken reasonable steps to address it. The court also held that the trial judge's conclusion that the employer's breach of duty did not cause the employee's injury was open on the evidence, as there was no medical evidence to establish causation. The appeal was dismissed.
The court made no orders as to costs.
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