Duma v Mader International Pty Ltd - [2013] VSCA 23

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,…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2013] VSCA 23
Decision Date: 20 February 2013

CaseChat Overview and Summary

Duma sued Mader International Pty Ltd for breach of statutory duty under the Occupational Health and Safety (Manual Handling) Regulations 1999, alleging that the company failed to eliminate or reduce the risk of his incurring a musculoskeletal disorder and did not undertake a risk assessment for tasks involving hazardous manual handling. The case came before the court on appeal from a decision at first instance which found in favour of the defendant. The primary issue before the court was whether the trial judge was correct to find that the employer had not breached its statutory duty under the regulations. A further issue was whether the trial judge's conclusion that the employer's breach of statutory duty did not cause the employee's injury was open on the evidence.

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.

Orders