SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0110
| JOHN GOVIC | Appellant |
| v | |
| BORAL AUSTRALIAN GYPSUM LTD | Respondent |
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| JUDGES: | REDLICH, OSBORN and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 March 2015 |
| DATE OF JUDGMENT: | 5 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 130 |
| JUDGMENT APPEALED FROM: | Govic v Boral Australian Gypsum Ltd [2014] VCC 1366 (Judge O’Neill) |
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ACCIDENT COMPENSATION – Appeal – Workplace injury – Whether defendant in breach of duty to take reasonable care to avoid risk of injury.
STATUTORY DUTY – Whether defendant in breach of statutory duty – Whether worker has a private right of action for breach of regulations made under the Occupational Health and Safety Act2004 – Occupational Health and Safety (Manual Handling) Regulations 1999; Occupational Health and Safety Regulations 2007 considered.
EVIDENCE – Relevance of party’s adoption of facts upon which expert opinion based – Facts establishing unsafe system of work – Recent invention – Allegation first raised in closing address – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr V Morfuni QC with Mr S Loftus | Nowicki Carbone Lawyers |
| For the Respondent | Mr M F Wheelahan with Mr S E Gladman | Wisewould Mahony Lawyers |
redlich JA:
OSBORN JA:
KYROU JA:
Mr Govic, the appellant, is a plasterer by trade. Save for a period during which he worked as a supervisor, he was otherwise engaged by Boral Australian Gypsum Ltd (‘Boral’) between 1997 and November 2010 to work as a ‘repair plasterer’. His job was to carry out repairs to plaster work which had been damaged by other trades in the course of construction works and to complete final plaster features such as cornices before painting was undertaken at residential building sites.
In November 2010, he ceased work because of degenerative tendonitis in his left and right Achilles tendons.
He subsequently issued proceedings in the County Court claiming damages for these injuries from his employer. The claim was brought both in negligence and, in the alternative, for breach of statutory duty arising out of occupational health and safety regulations.
The medical evidence was that the appellant was predisposed to degeneration of the tendons in his ankles because he suffered from a congenital bony protrusion at the rear of the heel of each foot, known as Haglund’s deformity.
Activities which involve stretching and stressing of the Achilles tendon were likely to aggravate degeneration in his tendons. Such activities include walking around job sites on rough ground, lifting heavy loads, climbing steps and ladders, and moving the ankle up and down under stress.
During the trial, by way of a primary defence, Boral maintained that the appellant was a contractor and that it did not owe to him the non-delegable duties of care which it would owe to an employee. The trial judge rejected this defence[1] and that conclusion is not the subject of dispute on appeal.
[1]Govic v Boral Australian Gypsum Ltd [2014] VCC 1366 [129] (’Reasons’).
The trial judge nevertheless dismissed the appellant’s claims. He characterised the tasks performed by the appellant as ordinary plasterers’ work. He found that Boral was not put on notice of the appellant’s vulnerability to injury and that it was not negligent in requiring him to undertake the ordinary activities of a plasterer. The judge further found that it was proper to assume (without finally deciding) that the appellant was involved in hazardous manual handling and that, in consequence, Boral was required by relevant regulations to carry out an assessment of any risk of musculoskeletal disorder affecting him as a result of his work. Although no such assessment was carried out, his Honour was not satisfied that this failure was causally connected to the appellant’s injuries.
The trial judge was not satisfied that:
(a) Boral had breached a statutory duty under the Occupational Health and Safety (Manual Handling) Regulations 1999 (‘the 1999 Regulations’) to ensure that the risk of musculoskeletal injury was eliminated or, if that were not possible, reduced so far as practicable; or
(b) Boral had breached a statutory duty under similar provisions in the Occupational Health and Safety Regulations 2007 (‘the 2007 Regulations’).
On appeal, by way of notice of contention, Boral further contends that the 2007 Regulations did not give rise to a statutory duty the breach of which is capable of founding a private right of action by the appellant. The appellant submits in turn, first, that Boral should not be permitted to raise this contention on appeal and, secondly, that in any event it should be rejected.
For the reasons set out below, we have come to the following conclusions:
(c) the trial judge was wrong to characterise the tasks commonly undertaken by the appellant as ordinary plasterers’ work when, at least in part, they included unusual work practices which were plainly potentially hazardous;
(d) his Honour did not squarely address the fundamental issue of the safety of the system of work used by the appellant;
(e) a proper assessment of the risk of foreseeable injury to the appellant would have identified the hazards which ultimately caused the appellant’s injury;
(f) Boral did not take adequate steps to ensure that any risk of musculoskeletal disorder was eliminated or reduced as far as was practicable;
(g) his Honour was wrong to conclude that there had been no breach either of the 1999 or 2007 Regulations;
(h) the 1999 and 2007 Regulations inform the content of the relevant common law duty to provide a safe system of work;
(i) the appellant was injured as a result of Boral’s breach of statutory duty pursuant to the 1999 and 2007 Regulations;
(j) the appellant was injured as a result of Boral’s breach of the non-delegable duty of care it owed to him as an employee;
(k) breach of both the 1999 and 2007 Regulations gives rise to a private right of action;
(l) the appellant was guilty of contributory negligence.
The nature of the appeal
This is an appeal by way of rehearing. The Court must form its own view of the facts while recognising the advantages enjoyed by the trial judge in assessing the oral evidence which he heard.
It is open to the appellant to challenge both the trial judge’s conclusions with respect to specific issues of fact and/or the overall characterisation of facts by reference to relevant duties of care.
A central issue in this appeal is the reasonableness of the system of work which the appellant utilised and the measures adopted by Boral to avoid the risk of injury.
In Warren v Coombes, Gibbs ACJ, Jacobs and Murphy JJ put this way the fundamental principles governing an appeal by way of rehearing in cases such as the present:
The duty of the appellate court is to decide the case — the facts as well as the law — for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. The only arguments that can be advanced in favour of the view that an appellate court should defer to the decision of the trial judge on such a question are that opinions on these matters very frequently differ, and that it is in the public interest that there should be finality in litigation. The fact that judges differ often and markedly as to what would in particular circumstances be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result in the attainment of justice in individual cases. The interest of the community in the speedy termination of litigation might, no doubt, be an argument in favour of the complete abolition of appeals, although that would be far too high a price to pay merely for finality. However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it.[2]
[2](1979) 142 CLR 531, 552-3 (emphasis added).
For the reasons explained below, we have ultimately concluded that we are in as good a position as the trial judge to decide whether the system of work utilised by the appellant was reasonably safe. In our view, it was not and the facts do give rise to an inference that the respondent was negligent.
Duty of care
In McLean v Tedman, Mason, Wilson, Brennan and Dawson JJ said:
The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer.[3] And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.[4]
[3]See John Fleming, Law of Torts, (Lawbook, 6th ed, 1983), 480-481.
[4]McLean v Tedman (1984) 155 CLR 306, 313.
The employer’s duties are non-delegable. In Kondis v State Transport Authority, Mason J stated:
The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters. … In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work.[5]
[5](1984) 154 CLR 672, 687-8.
The duty of care that an employer owes to an employee may vary according to the particular susceptibility of an employee to injury. If the employer knows that the employee has a predisposition to injury then the employer must take special precautions to avoid that injury.[6]
[6]Paris v Stepney Borough Council (1951) AC 367.
Nevertheless, the onus of proof with respect to an absence of reasonable care on the part of the employer remains on the plaintiff worker. As Windeyer J put it 50 years ago:
For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment. To quote a sentence from one of the cases to which counsel referred, ‘What is “a proper system of work” is a matter for evidence, not for law books’.[7]
[7]Vozza v Tooth & Co Ltd (1964) 112 CLR 316, 319, quoting Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743, 760 (Lord Denning).
If a worker establishes a breach of the employer’s duty of care caused him or her injury then the employer must take the worker as it finds him or her.[8] As Windeyer J said in Purkess v Crittenden:
[The plaintiff’s] infirmities before the accident may have made its consequences more serious for her than they would have been for a person in good health. But that does not reduce the damages for which the defendant is liable.[9]
[8]Watts v Rake (1960) 108 CLR 158, 160 (Dixon CJ), 164 (Menzies J).
[9](1965) 114 CLR 164, 171-2.
Where, as in the present case, the degenerative condition of the appellant’s heels would ultimately have affected him anyway, the defendant would be liable for the acceleration of that condition if brought about by the defendant’s wrongful acts.[10]
[10]Watts v Rake (1960) 108 CLR 158; Zumeris v Testa [1972] VR 839.
Breach of regulations intended to set safety standards may evidence a want of reasonable care.[11]
[11]Sutherland Shire Council v Heyman (1985) 157 CLR 424, 439, 443-5 (Gibbs CJ).
In addition to alleging a breach of Boral’s duty at common law, the appellant also alleged breaches of statutory duties owed to him pursuant to the 1999 and 2007 Regulations. The trial judge summarised the relevant Regulations as follows:
The 1999 Regulations
The plaintiff alleges Boral was in breach of Regulations 7, 12, 13, 14 and 15 of the 1999 Regulations. ‘Hazardous manual handling’ is defined in Regulation 13, relevantly, to mean:
(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;
(v) …
(b) … .
…
Regulation 13 requires an employer to identify any task involving hazardous manual handling.
Regulation 14 provides an employer must assess any such task to determine whether there is a risk of musculoskeletal disorder occurring as a result of the performance of that task. That assessment should take into account:
(a) postures adopted;
(b) movements undertaken;
(c) forces exerted;
(d) …
(e) the duration and frequency of the task.
Regulation 15 provides an employer must ensure that any risk of musculoskeletal disorder is eliminated or reduced as far as practicable.
The 2007 Regulations
The plaintiff alleges Boral was in breach of the 2007 Regulations, in particular, Regulation[s] 3.1.1, 3.1.2 and 3.1.3. The 2007 Regulations have the same definition of hazardous manual handling as the 1999 Regulations.
Regulation 3.1.1 requires an employer to identify any task which involves hazardous manual handling.
Regulation 3.1.2 requires an employer to ensure the risk of a musculoskeletal disorder associated with the hazardous manual handling task is eliminated as far as is reasonably practicable or reduce that risk so far as is reasonably practicable.
Regulation 3.1.3 requires an employer to review any measures taken to control risks.[12]
[12]Reasons [161], [163]-[169].
Both sets of Regulations may be regarded as informing the relevant duty of care at common law by requiring risk identification with respect to any tasks involving hazardous manual handling and by requiring the employer to ensure that the risk of musculoskeletal disorder associated with those tasks be eliminated as far as practicable.
The appellant also claims that breach of the 1999 and 2007 Regulations gave rise to a private right of action for breach of statutory duty. Boral accepts that if a breach of such a duty is established under the 1999 Regulations it may give rise to an actionable claim, but contends that a private right of action for breach of statutory duty does not arise under the 2007 Regulations.
The facts
It is necessary to set out the facts in greater detail before turning to the principal issues in the case.
The appellant is a 40 year old man who worked for Boral between 1997 and November 2010 (although he concedes that only his employment duties after 20 October 1999 can be considered in this proceeding).[13]
[13]Ibid [112], [151].
Between 2001 and 2003, for a period of about 18 months, he was employed as a supervisor by Boral but he returned to work as a plasterer in 2003 because he found supervising duties stressful.
Boral then engaged the appellant as a subcontractor. The appellant was retained on a continuing basis to carry out repair plaster work at residential building projects. In effect, he finished the plaster work to a standard ready for painting. He generally worked five days a week commencing at 7:00 am and working until 3:00 pm or sometimes later.
Until 2004 or 2005, the appellant principally used a plasterers’ trowel to effect plaster repair. Subsequently, he carried out more general repair and finishing work such as fixing cornices.
A supervisor would meet the appellant at a particular job or fax details of a job to him and provide him with a list of the plastering work which had to be undertaken at a particular site. He had to work to a timeframe in that his work had to be completed to enable other trades to get their work done.
The appellant used his own tools including hammers, a panel lifter, an electric sander and trowels. If he did not have a necessary tool, Boral would obtain what was required from another tradesman. Plasterboard, plaster and cornices were principally purchased from Boral. The ladders and benches he used were his own but Boral sometimes provided scaffold.
The work was heavy work. The trial judge noted the following elements by way of summary of the appellant’s work:
His work duties included climbing up and down ladders and onto scaffolding, mixing cement and carrying heavy materials, including 20-kilogram bags of cement, and installing the plaster. Generally, he would put the plaster on the back of a plasterboard or cornice, and then take it up onto the ladders and scaffold. He would sometimes carry plaster sheets of 4.2 metres by himself, or drag them into the relevant area. The sheets were very heavy, weighing something between 10 and 20 kilograms.[14]
[14]Ibid [12].
The appellant’s evidence was that his feet or heels were affected by going up and down ladders and steps, overstretching, carrying heavy equipment, walking over rough and uneven terrain, and working by himself without assistance.
Amongst other things, in the course of his evidence, the appellant described the way he used plasterers’ stools which he referred to as ‘benches’:
Just indicate to his Honour, if you had to, let’s say, replace a cornice what steps would you take in order to do that work?---Okay. If I had to replace a length of cornice and if the room was four metres long, for example, I would have to set up my scaffold along that wall, climb up on top, break the other cornice off with minimal damage, replace that cornice, cut a new length of cornice and then to put it up, because I can only span so wide, I would place a nail in the corner. I would measure down the profile for the cornice that needed to be put up, then I would put a nail in the corner - or two. I would glue the cornice up, take a few steps back, get a bit of motion so I could get on top of my benches and then I would place the corner of the cornice up against the nail and with the other hand, try and hold the cornice because it would bow and the[n] shuffle across and put that cornice up and put a nail and to tack it and then work my way back down to the start.
When you say you had to get a bit of motion, what did that entail?---That means I couldn’t walk from one ladder on to my scaffold properly because of the weight, because of the height difference, so I would have to take a few steps back, get almost like a bit of a run up so I could get a bit of motion to spring off and land up on my benches.
You were jumping on to the bench?---Yes, that’s correct.
How often would you need to do that manoeuvre?---Every time I was putting cornice up.
It may be observed, as counsel for Boral submitted on appeal, that this evidence was ‘imprecise’. It did not adequately describe the nature and dimensions of the appellant’s ‘benches’ or quantify in satisfactory terms the number of times he might ‘spring’ onto the benches on an ordinary working day. It did not recount the stress upon his legs which he subjectively experienced in doing this. This said, taking a running jump onto a work bench whilst carrying a load was on its face an unusual working practice.
The appellant also gave evidence of heavy lifting in the course of his job, first of bags of cornice cement of about 20 kilograms in weight and secondly, of sheets of plaster:
If you had to affix plaster to a wall, what process did you use then?---Depending on the size of the wall. The majority of the time the sheets were either delivered inside the house or they were in the garage and I would carry up to a 4.2 metre sheet by myself. If I couldn’t carry it, I would drag it through the house to the area where it needed to be and I would glue up the studs, I would measure the sheet, go outside, cut the sheet, go back inside, glue up the studs on the wall and then I would take the sheet inside and I would fix it to the wall with either screws or nails.
What sort of weight did these plaster sheets - - -?---They are very heavy. They could be anywhere between 10 kilos to 15-20 kilos, depending on the size and I would carry those - the big sheets, I would carry those, spread my arms - I would place the sheet on my foot and then I would put one hand underneath, lift it up and then I would carry the sheet on both hands like that and my back would arch and I would waddle through the house because the builder required that if there was a wall, that there was a big enough sheet, that they didn’t want any joins and that's what Boral promised.
On the face of it, this evidence also begged the question of whether lifting sheets of plaster which were both awkward and heavy for the purpose of ‘waddling’ with them into residential premises constituted a safe work practice.
The appellant himself gave evidence that he believed he worked safely. However, the relevant question was whether in fact, when viewed objectively, the system of work was safe.
The appellant’s evidence was materially amplified by Mr Bill Contoyannis, a forensic engineer, who gave evidence as an expert with respect to the safety of the work practices in issue. Mr Contoyannis described the equipment the appellant used which included a Bailey two or three step ladder and plasterers’ stools of a type shown in photographs he produced.
As can be seen in the photograph below, as Mr Contoyannis said, the plasterers’ stool was ‘actually more like a plank on legs.’
Mr Contoyannis said he was told that the appellant was also supplied with a ‘Step Up’ stool by Boral which the appellant did not feel was suitable for his use. A photograph was also produced of this type of stool.
Mr Contoyannis was unable to say whether this stool was in fact stable but expressed the view that, in his experience, stools of this type were not particularly stable and were not suitable for use when fixing cornices.
Mr Contoyannis described the appellant’s use of plasterers’ stools as follows:
In relation to the plasterer’s stools, did he give you any instructions as to the frequency with which he used them?---Yes, he did. He said that he would go up and down the plasterer’s stools between 50 and 100 times.
Did he tell you what height they were?---Yes. He said they were set to about 600 millimetres which is consistent with the catalogue items that were provided during the interview.
Did he tell you how he got up on them?---Yes. He said he would typically step straight up on them and step straight off them as well.
Did he tell you whether he would do that, irrespective of what he was carrying?---Yes, that’s right. As he worked, basically.
He further said:
… one of the difficulties is stepping up on to a 600 millimetre high plasterers’ stool, is that the muscles and therefore tendons of the lower limb are put at a biomechanical disadvantage so that’s part of that anthropometric analysis there. My opinion in stepping down off a 600 millimetre [stool] is it’s not - whilst we might say he is stepping down, the reality is that's a jump down, again because of anthropometry. That is not a controlled step because it’s too large so he is jumping down again often carrying either tools or a plasterer’s hawk, et cetera. So my opinion is they are not good practices or good work perhaps in terms of putting potentially large loads and forces through the body.
In further elaboration, he said:
In relation to [the appellant] having told you that he would jump up and down the plasterers’ stool, did you form any opinion as to the force that would have impacted on to his lower limbs, both going up and going down?---Yes, I had. The biomechanical disadvantage note aside, when you jump you can generate very, very large impact forces. They are often measured in terms of the percentage of the body weight and I have indicated there that even a small jump can have an impact force of between 200 and 500 per cent of your body weight as an impact force through your body. Again, the anatomy of the body is to mitigate that or try and stop that impact force as much as possible, usually through the quads and the calves. So the Achilles tendons are again invoked.
Ultimately, Mr Contoyannis expressed the opinion that the appellant performed a range of manual handling tasks which were difficult and awkward. He said the carrying of plaster, weighing up to 20 kilograms, increased the load on the Achilles area and, in particular, did so when the appellant climbed onto plasterers’ stools and step ladders. Climbing onto stools when carrying loads would have created large forces in the legs. Moving from a step ladder to a plasterers’ stool would have been unsafe. The appellant told Mr Contoyannis that he would have stepped up onto a plasterers’ stool 50 to 70 times a day and then down again, sometimes jumping. This would have put very high forces on his lower limbs. A combination of repetitive or sustained postures, movements and forces carried out over a long duration constituted a risk of musculoskeletal disorder. Mr Contoyannis said that he considered that the appellant was placed at risk of injury, in that an unsafe level of mechanical stress was applied to the appellant’s lower limbs because of the frequent lifting, stepping up and jumping down tasks. He said that footwear may have contributed to the risk, but that he was unable to say to what degree.
In turn, Mr Contoyannis said that the risk of musculoskeletal injury to the appellant could have been addressed by a risk assessment and the provision of manual handling training. He said the appellant could also have been supplied with better equipment and more assistance.
In cross-examination, counsel for Boral established, amongst other things, that the plasterers’ stools were not designed to be stood on, that they were not provided by Boral, that the appellant was provided with a ‘Step Up’ stool by Boral and that the appellant did not use the stool provided. Mr Contoyannis confirmed that the appellant had said that he stepped up and down onto the plasterers’ stool about 50 times a day. Counsel for Boral then put squarely to Mr Contoyannis that the procedure which the appellant adopted was dangerous:
Then he said to you in July of this year that he would jump up on to the plasterer’s stools sometimes - no, jump off them, paragraph 4.19?---Yes, jump straight off them.
That’s a dangerous thing to do, isn’t it?---I agree with you, that’s not an ideal thing to do.
Not only that, it’s risky?---It’s risky, exactly right.
Because you can hurt yourself?---Yes.
And you can jar your feet?---Yes.
That would be even more so if you weren’t wearing proper shoes, safety shoes?---Quite probable.
Mr Contoyannis described jumping onto stools and stretching overhead to reach while holding loads as the two tasks the appellant undertook which were of greatest concern in terms of stress on the Achilles tendons.
At the conclusion of cross-examination, Mr Contoyannis agreed that ‘a competent plasterer should not use a trestle as the appellant did to climb up on’ and that a competent plasterer should not jump down off such a trestle.
It was not in issue on the appeal that this cross-examination was intended to support Boral’s primary defence that the appellant was a subcontractor who had failed to take adequate care for his own safety in the selection of the equipment he utilised for the job and the work practices he adopted. It was a necessary assumption of this cross-examination that such practices might be regarded as causing or contributing to the appellant’s injury. The evidence adduced in cross-examination of Mr Contoyannis potentially opened the way for a submission that, insofar as the appellant placed more than ordinary stress on his legs, he did so as the result of inappropriate practices he adopted as a subcontractor. Nevertheless, the conclusion that the practices of stepping or jumping up onto and off plasterers’ stools which the appellant adopted were risky and dangerous and not something a competent plasterer would adopt was inherently problematic for Boral if its primary defence was rejected.
In addition to the evidence from Mr Contoyannis, the appellant called evidence from Mr Otis Wang, an orthopaedic surgeon specialising in foot and ankle surgery. He first saw the appellant on 22 October 2010. He diagnosed the appellant as suffering from Haglund’s deformity. Activities which involved the stretching of the Achilles tendons were likely to aggravate the condition, including walking around a job site, jumping, lifting heavier loads, climbing and moving the ankles up and down.[15] Mr Wang said that the type of work performed by the plaintiff contributed more to his condition than his general activities of daily living. Mr Wang treated the appellant’s condition surgically.
[15]Reasons [72] – in evidence Mr Wang said:
What other activities aggravate the tendon or you would have expected to aggravate the tendon in this man before he had his operation?---Look, I am not a biomechanics expert but - however, logically increased load, increased activity, jumping, lifting heavier loads, hyperdorsiflexion which is moving the ankle up and down. They would be the ones that would put the tendon at stretch and therefore to more at risk of degeneration.
Further medical evidence was called from Dr Lynden Best, the appellant’s general practitioner, who said, amongst other things, that factors contributing to the appellant’s injury were the use of ladders, the requirement to support his weight through his feet when doing so, and the taking of bounding steps or jumping off a ladder. He said in evidence in chief:
[The appellant] gave evidence that carrying objects in his hands he would take a bit of a run to get up to what he called a plasterer’s stool. Would that contribute to the development of his condition?---The extra load and a couple of bounding steps would put added pressure on the Achilles.
What about jumping off a ladder?---The nature of landing and the stretch and the force that would occur through the ankle as his lower limbs absorbed the weight and forces on landing would also likely contribute to extra stress on the Achilles tendons.
The appellant’s evidence in chief as to his practice of springing onto benches was also put to Dr Best and he agreed that this would cause stress to the ankles.
Evidence was also called from Dr Jade Harries, an osteopath, who said that she first saw the appellant in June 2008. She said that at that time the appellant had very swollen Achilles tendons and sore calves.
Looked at in the broad, there was compelling evidence that the work undertaken by the appellant materially aggravated the degenerative condition of his ankle tendons.
On the other hand, it was apparent that the appellant was unusually vulnerable to this aggravation because of his pre-existing condition.
Boral called evidence from Mr Phillip Henderson, a contracts manager; Mr Travis Blake, a project co-ordinator; Mr Colin Pavitt, a project co-ordinator; and Mr Adam O’Neill, a maintenance contractor, as to Boral’s dealings with the appellant, including the lack of any ongoing complaint to Boral about the condition of his heels.
There was a particular dispute as to whether the appellant had told Mr Henderson and Mr Blake that he had ongoing problems with respect to his feet in June 2010. The appellant claimed that he had. Ultimately, the trial judge preferred the evidence of Mr Henderson and Mr Blake.
Boral’s case as to the unsafe nature of the practice of jumping onto and off plasterers’ stools was further confirmed in the evidence it called from Mr Henderson. He said that he had worked as a plasterer for 8 to 10 years. In cross-examination, he said that during this period he would stand up on plasterers’ stools of the sort shown in Mr Contoyannis’s photos. He would not regard standing on such stools as unsafe if he observed the practice during a safety audit. He had never used ‘step ups’. In re-examination, he was specifically asked about jumping:
From your experience, is it safe to jump the distance from them on to the ground on a regular basis?---I wouldn't have thought so.
Did you ever jump up on to them?---No. I always stepped up.
Why is that?---You haven't got as much control if you are jumping.
This evidence reinforced the proposition that jumping onto and off plasterers’ stools was plainly hazardous.
The way the parties joined issue
By an amended statement of claim filed during the course of the hearing, the appellant relied upon particulars of negligence which alleged first, that Boral required or allowed the appellant to do tasks which included the following:
·lift and carry sheets of plaster which were awkward and weighed approximately 20 kilograms;
·repeatedly climb on plasterers’ stools while carrying heavy or awkward loads; and
·jump while carrying a load.
It was further alleged that Boral failed to properly instruct the appellant, prescribe and/or enforce a safe system of work, provide a comprehensive training program, provide proper safety equipment, provide the appellant with any or adequate assistance, alternate the appellant’s work duties after it knew he had suffered the onset of symptoms, and comply with relevant provisions of the 1999 and 2007 Regulations.
By its defence, Boral inter alia:
·denied that it employed the appellant, and said that at all material times the appellant was a subcontractor plasterer pursuant to a subcontract agreement;
·denied each and every allegation of negligence and statutory breach;
·alleged that if the appellant suffered injury, such injury was caused by the appellant’s breach of the subcontract agreement; and
·alleged that if the appellant was employed by Boral and suffered injury as a result of its negligence, the appellant was guilty of contributory negligence.
A consequence of Boral’s alternative defences was that, in part, it sought at trial to demonstrate that the appellant adopted work practices which he should not have adopted as a subcontractor and, alternatively, that he adopted work practices which demonstrated contributory negligence.
The judge’s reasoning with respect to negligence
The trial judge dismissed the appellant’s case insofar as it was premised upon the proposition that Boral was given notice of his ongoing vulnerability to injury to his heels. The critical findings were highlighted by counsel for Boral as follows:
The trial judge made the following factual findings –
(a)the appellant was an experienced and competent plasterer, who performed ‘regular, unexceptional duties’ of the kind ordinarily expected of plasterers;[16]
[16]Reasons [145], [153], [157].
(b)the appellant suffered from a degenerative condition affecting his Achilles tendons called insertional Achilles tendinopathy, which had been aggravated by his work duties;[17]
[17]Ibid [146], [149]–[150], [158].
(c)the appellant was predisposed to suffer from that condition because of his Haglund’s deformity, a congenital bony prominence on each heel;[18]
[18]Ibid [148], [150].
(d)the appellant made no complaint to the respondent about any problems with his feet until May 2010, and he made no further complaint until November 2010 when he ceased working for the respondent;[19]
[19]Ibid [112], [143], [151].
(e) at a ‘spot audit’ conducted by the respondent on 4 May 2010 –
(i)the appellant told Mr Henderson that he was not allowed to wear steel-capped safety boots, that he had a medical certificate to that effect, and that the problem was the steel-capped part of the boot itself rather than the heel; and
(ii)Mr Henderson asked the appellant to provide him with a copy of the medical certificate so that it could be placed on file;[20]
(f)the appellant never provided a medical certificate to the respondent;[21]
(g)on 5 May 2010, Mr Henderson saw the appellant wearing steel-capped safety boots, presumably a new pair and the appellant said he was going to try them out. On this occasion the appellant also did a ‘jig’, which indicated that all was relatively well with his feet;[22]
(h)the respondent did not know of the appellant’s condition;[23] and
(i)in all these circumstances, there was nothing to put the respondent on notice that the appellant’s work duties were likely to cause injury to him.[24]
[20]Ibid [139]–[143], [177].
[21]Ibid [143], [152].
[22]Ibid [89], [140], [143].
[23]Ibid [158].
[24]Ibid.
We accept that the trial judge was entitled to make the findings upon which the respondent relies and that because he enjoyed the advantage of seeing the critical witnesses give oral evidence, we should not interfere with those findings. Ultimately, his Honour had to decide whether he preferred the evidence of Mr Henderson to that of the appellant in relation to the history of complaints. His Honour was in a better position than we are to make this particular judgment.
The more fundamental question is, however, whether his Honour’s findings justified rejection of the appellant’s underlying case as to an unsafe system of work irrespective of whether the appellant gave notice of his special vulnerability.
The trial judge reasoned with respect to negligence as follows. First, the trial judge accurately stated the nature of Boral’s duty of care.[25]
[25]Ibid [144].
Next, his Honour identified the need to assess the tasks the appellant was required to perform and the nature of the injury he suffered.
The trial judge noted that the appellant was an experienced and competent plasterer who well knew how to perform the duties he was allocated. He then summarised those duties.[26]
[26]Ibid [145].
Next, his Honour summarised the evidence Mr Wang had given to the effect that repetitive action could accelerate the deterioration of the degenerative condition of the appellant’s tendons.
The trial judge said that he was satisfied that Boral was only on notice of problems with the appellant’s heels from May 2010 and that it was not unreasonable for Boral to take no particular ongoing steps in response to this notice because it appeared that the appellant was addressing the problem with new boots.
The trial judge then characterised the duties described in evidence by the appellant as follows:
The evidence of the plaintiff as to the duties he undertook in the course of his employment were regular, unexceptional duties that plasterers would be expected to undertake in the course of their average working day. On occasions I accept the plaintiff had to lift relatively heavy loads, at times work in awkward positions, and regularly walk up and down ladders, and the like, which caused flexion of the Achilles tendon.[27]
[27]Ibid [153].
The proposition that the jobs the appellant was required to undertake were ordinary plasterers’ jobs does not address the separate question of whether the methods he regularly used in performing those jobs were a reasonably safe and acceptable way of performing those jobs. This distinction is critical in the present case.
The judge went on to note that the evidence of Mr Contoyannis went beyond that of the appellant; significantly, it described the frequency with which the appellant would jump onto and off the stools, the height of the stools, and the large impact forces this activity generated. This was undoubtedly correct but the evidence of Mr Contoyannis was not only given without objection, but as we have said, was relied upon in cross-examination. Furthermore, by reason of s 60(1) of the Evidence Act 2008, the hearsay rule contained in s 59 of that Act did not apply to evidence of statements made by the appellant to the expert witness. Those statements were in turn evidence of the underlying facts. The statements were relevant for the non-hearsay purpose of establishing the factual basis of the expert’s opinion but might also be used to prove the facts contained in them unless a direction were made under s 136 limiting the use of the evidence. In Quick v Stoland, Branson J noted:
In cases in which there is a genuine dispute as to the relevants facts, it might be expected that a court would ordinarily limit the operation of s 60 of the Act by exercising the power vested in it by s 136 of the Act.[28]
[28](1998) 87 FCR 371, 378.
It was no part of Boral’s case that the factual assumptions underlying the expert opinion had not been established. As counsel for Boral conceded on appeal, no application was made to limit the way in which the evidence of prior statements by the appellant to Mr Contoyannis could be used. On the contrary, they were adopted as part of its defence. It follows that the fact that the evidence of Mr Contoyannis amplified that of the appellant as to the underlying facts provided no basis for its rejection.
The trial judge went on to note, however, that an affidavit filed by the appellant in support of his serious injury application and a letter to his solicitors containing instructions relating to his workplace duties, gave varying and more limited descriptions of his duties than those given to Mr Contoyannis. Once again, this was undoubtedly correct but, for reasons already given and those we shall explain below, the appellant’s prior statements were not relied upon or referred to by Boral during the course of the evidence and assumed no significance.
The trial judge then stated:
While this list of duties could not, given the context of the letter, be said to be the precise duties which the plaintiff regarded as causing or aggravating his heel problems, nonetheless, given this document, his affidavit and the history to Mr Wang as to the lack of any correlation between his work duties and his heel problems, leaves the distinct impression the plaintiff was casting about attempting to find work tasks which could support his WorkCover claim.[29]
[29]Reasons [156].
His Honour’s conclusion falls short of explicitly rejecting the accuracy either of the evidence of the appellant or of Mr Contoyannis as to the nature of the tasks undertaken by the appellant. It seems rather to be directed to the weight of that evidence and the issue of causation. The fact that an injured worker gives the distinct impression of ‘casting about attempting to find work tasks’ which could support his claim does not relieve a judge from evaluating the probative effect of the evidence he gives after having ‘cast about’. It cannot be assumed that an injured worker will be a good historian or that he will realise the true significance of elements of his history when first giving instructions. Moreover, as we have said, the ultimate accuracy of the evidence adduced by the appellant and other witnesses as to the tasks he undertook was not challenged in the course of the evidence called on his behalf. We also add for completeness that even if his Honour’s reasons are to be understood as implying an adverse credit finding against the appellant, this Court must still examine the evidence for itself.[30] We shall return in due course to the way in which the issue of recent invention addressed by his Honour ultimately arose.
[30]Jew v Holloway [2013] VSCA 260 [33]-[34] (Redlich, Coghlan JJA and T Forrest AJA).
The trial judge then concluded:
While the measures referred to by Mr Contoyannis may have been available, in my view, there was nothing to alert Boral that the failure to take such steps carried the risk of injury to the plaintiff. As stated, all of the tasks performed by the plaintiff were the tasks normally expected of plasterers carrying out their duties.[31]
[31]Reasons [157] (emphasis added).
This conclusion, expressed as it was by reference to the notion of ‘normal tasks’, was critical to the judge’s decision. For reasons which we shall shortly explain, we do not accept that this was an accurate characterisation. Whilst it is true that the jobs the appellant was requested to do were ordinary plasterers’ jobs, the evidence did not show that the practices he had adopted were normal practices, nor that they were reasonably safe.
His Honour went on to say that he was not satisfied that there was anything unreasonable about the conduct of Boral in requiring the appellant to carry out his duties in the manner in which he did.
His Honour reasoned as follows:
I am not satisfied that there was anything unreasonable about the conduct of Boral in requiring the plaintiff to carry out the duties in the manner he did. The touchstone of the duty is reasonableness, not a standard of perfection. Had the plaintiff suffered an injury to his lumbar spine caused by repetitively lifting heavy articles, and there was a causal connection between that lifting and injury, then it would be clear an employer would be in breach of its duty to provide a safe workplace. But in the present case, the circumstances are decidedly different. The plaintiff suffered from a degenerative condition in his heels which was aggravated by the workplace activities. There was really nothing to suggest to Boral that any of those activities was likely to result in injury to the plaintiff, even notwithstanding the plaintiff complained to Mr Henderson on 4 May 2010. Boral did not know of the plaintiff’s condition which made him susceptible to such an injury, nor that his duties may aggravate the condition. Had it known, then it may have been negligent in allowing him to perform duties which were likely to stretch the Achilles tendon. But it had no such knowledge. The only knowledge came when the plaintiff complained on 4 May 2010 to Mr Henderson that he was unable to wear work boots and had a medical certificate. That was different from knowing the plaintiff had a condition that was likely to be aggravated by work duties, in particular, those which resulted in the stretching of his Achilles tendons. Further, the problem appeared to have ameliorated a day or two later when the plaintiff said he was trying a new set of boots and did not produce the medical certificate, which had been requested.[32]
[32]Ibid [158] (emphasis added).
In addition to the characterisation of the appellant’s tasks as normal tasks undertaken by plasterers, there are other problems with this reasoning. In particular, there was a fundamental issue as to whether there was anything in the activities the appellant routinely undertook which should have suggested to Boral that the activities were likely to result in injury.
The characterisation of the appellant’s tasks and practices
It is obviously true that there were aspects of the tasks the appellant undertook which were entirely normal incidents of plasterers’ work and could not be regarded as other than reasonable work practices. These included things such as walking on uneven ground, using appropriate tools such as trowels and ladders, working in part above his head, and engaging in some incidental moderately heavy lifting. On the other hand, in our view, there were at least two practices which the appellant adopted on a recurrent basis which could not readily be so regarded. These were, first, the practice of jumping up onto a work bench to do work such as fixing cornices and, secondly, the practice of walking large awkward plaster sheets into residential building workplaces on his own.
The job of fixing cornices may have been ordinary plasterers’ work but if evidence called by the appellant was accepted, the way the appellant routinely went about this work did not utilise safe equipment, was inherently hazardous and was not competent practice. Indeed, the case advanced in oral evidence by Boral positively propounded these conclusions.
It follows that it was critical to decide whether or not the appellant did in fact regularly adopt those work practices.
In final address, counsel for Boral changed tack from the position that he had adopted in the course of the oral evidence. He no longer sought to rely on the history taken by Mr Contoyannis as true and as evidence of an unsafe system of work attributable to the appellant. He now submitted that the ‘jumping up and down’ was recent invention. To make good that allegation, he sought leave to tender a prior affidavit made by the appellant describing his work practices which did not mention the jumping activity. Somewhat surprisingly given that the statement had not been put to the appellant in cross-examination, no objection was taken to the course of tendering the evidence during closing address. Objection might also have been taken pursuant to s 135 of the Evidence Act 2008 on the basis that to admit the evidence in final address was unfair. Alternatively, application could have been made under s 136 to prevent its use in a way that was unfairly prejudicial to the appellant. The appellant was not after all given any opportunity to address the document and explain its contents. Nevertheless, neither of these courses was taken.
Counsel for Boral then submitted that the ‘allegation of jumping’ first appeared in the written statement of Mr Contoyannis made in June 2014 (recording statements by the appellant):
Now we have got the jumping included and that makes its appearance for the first time ever in the statement of Mr Contoyannis which is in July of this year that he jumped up and down.
Counsel concluded this submission:
So we say this jumping is a new allegation and your Honour should take it very, very carefully. We say the rest of the work is normal work that a plasterer would do and the injuries the plaintiff suffered are explicable by his deformity and degenerative condition.
Significantly when regard is had to the judge’s ultimate reasoning, it should be noted that this submission implicitly conceded that ‘jumping’ was not normal work.
On appeal, counsel for Boral sought to distinguish between the evidence of springing up onto the benches, which formed part of the appellant’s evidence at trial, and the evidence of jumping down. We do not accept this distinction. The course of the evidence as a whole including the cross-examination of the appellant’s witnesses made clear that the use of the stools involved both jumping or stepping up and down. The submission in final address about the ‘first time ever’ was a submission about jumping ‘up and down’.
We are also unpersuaded that the evidence should be rejected as constituting recent invention.
At worst, the prior statements of the appellant upon which Boral relied in final address were no more than deficient in aspects of relevant details. Moreover, in our view, they were of little weight as a basis for rejecting the appellant’s case because no challenge was made to the accuracy of the evidence upon which the appellant relied in the course of the appellant’s case. Moreover, as was said in R v Morrow:
Ordinarily, a failure to put to the witness the substance of the evidence which is called in contradiction of the witness or to otherwise impugn the witness, will bear upon the weight to be attached to such evidence or the inferences that flow therefrom.[33]
[33](2009) 26 VR 526, 542-3 [60].
The relevant principle was stated by Newton J in Bulstrode v Trimble:
In its second aspect the rule in Browne v Dunn is, in my opinion, as I earlier said, a rule relating to weight or cogency of evidence.[34] In this aspect the rule says no more than that if a witness is not cross-examined upon a particular matter, upon which he has given evidence, then that circumstance will often be very good reason for accepting the witness’s evidence upon that matter. If I may say so, this is little more than common sense. I have used the word ‘often’ advisedly, because if a witness’s evidence upon a particular matter appeared in his evidence-in-chief to be incredible or unconvincing, or if it was contradicted by other evidence which appeared worthy of credence, the fact that the witness had not been cross-examined would, or might be of little importance in deciding whether to accept his evidence. [35]
[34]Compare R v Jawke [1957] 2 SALR 187, 190.
[35][1970] VR 840, 848 (citation in original); see also, Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 [14] (Redlich JA and Beach AJA); R v Morrow (2009) 26 VR 526, 542-3 [60] (Nettle, Redlich JJA and Lasry AJA).
In the present case, it cannot be said that the evidence adduced on behalf of the appellant as to the use of plasterers’ stools was incredible or unconvincing, nor was it directly contradicted. Indeed, it was not put in issue until final address.
In the present case, the appellant’s own evidence of the practice of springing onto the plasterers’ stool was not the subject of any challenge in cross-examination. Moreover, that course was adopted knowing that the appellant’s own evidence as to this procedure would be further elaborated in the evidence of Mr Contoyannis (his expert report having been received by Boral prior to the hearing). In turn, no challenge was made to the relevance of the evidence of Mr Contoyannis pursuant to ss 56 or 135 of the Evidence Act 2008. It was not submitted that, insofar as that evidence assumed facts beyond those established by direct as distinct from hearsay evidence, it should not be admitted either as irrelevant or, alternatively, as being of such low probative value that it should be excluded. Nor, most significantly, was application made to limit the use of that evidence pursuant to s 136. In particular, no application was made pursuant to s 136 to limit the use of Mr Contoyannis’s hearsay evidence, otherwise admissible under s 60(1), of instructions from the appellant so that these were not received as evidence of underlying facts. In these circumstances, the weight of the evidence overwhelmingly favoured its acceptance.
The trial judge did not directly resolve these issues but ultimately subsumed the evidence of jumping into the overall characterisation of the appellant’s activities as normal plasterers’ work as we have already indicated. We do not agree that the evidence can be explained away in this fashion.
Moreover, even if his Honour’s reasons are to be read as impliedly rejecting the evidence relating to the use of the plasterers’ stools for reasons of credit based on recent invention, that does not preclude challenge to such a rejection upon an appeal by way of rehearing. The relevant principles were stated in Jew v Holloway:
Credibility findings in the reasons of the primary judge will not insulate those reasons from proper analysis. A finding by the judge at first instance, substantially influenced by an opinion concerning the credibility of witnesses, will not relieve this court of its statutory appellate duty to decide the case for itself by way of rehearing, while recognizing the advantage enjoyed by the judge who conducted the trial. Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy, that in addition to incontrovertible facts or uncontested testimony, facts which fall short of being ‘incontrovertible’, may support an appellate conclusion that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ or that the trial judge has ‘failed to use or has palpably misused his advantage’ so as to demonstrate that the trial judge's conclusions are erroneous. Observations to similar effect were also made by Kirby J in Earthline, and repeated in CSR Ltd v Della Maddalena. Where the conclusion of the primary judge depends on inferences drawn from evidence that is unchallenged, unanswered or is ostensibly reliable, or facts that have been found but can equally be re-determined by the appellate court, without relevant disadvantage, the appellate court must not then shrink from giving effect to its own conclusion. Even where credibility findings represent an apparent obstacle to appellate intervention, the finding may be so much contrary to compelling inferences of the case that it justifies and authorises appellate interference in the conclusions reached by the trial judge. The observations of Kirby J in Earthline, that credibility findings that left untouched other evidence which required separate evaluation and which may render the judge’s conclusion improbable or contrary to compelling inferences, have been applied to justify an appellate review of the evidence itself and the drawing of its own conclusions.
Credibility findings have not impeded appellate intervention where there has been an inadequate analysis of important evidence in the reasons for decision. They will not relieve the trial judge of the obligation to subject all the evidence to rational analysis including countervailing factors and to draw whatever inferences were capable of arising having regard to all the evidence and in a manner which exposed the reasoning process. Conclusions as to credibility cannot be a substitute for an exposition of the judge’s process of reasoning. Hayne J observed in Waterways Authority v Fitzgibbon that a trial judge‘s findings will be defective unless the obligation of evaluating all of the evidence bearing upon the relevant issue of fact, has been discharged. Where the trial judge’s reasons are significantly inadequate, because they do not make reference to all of the important evidence or explain how the facts which may stand in the way of conclusions have been evaluated, findings as to credibility will not then be conclusive of the proper outcome of the trial. [36]
[36]Jew v Holloway [2013] VSCA 260 [33]-[34] (Redlich, Coghlan JJA and T Forrest AJA) (citations omitted).
In the present case, the judge’s reasons do not explain how the absence of any challenges to and the adoption of the evidence of the appellant as to his use of plasterers’ stools, either as given in chief by him or as elaborated by Mr Contoyannis, could properly be overcome. Nor does the judge make any explicit findings as to which aspects of the evidence (if any) should be rejected as untruthful or unreliable, or give satisfactory reasons for such findings. In the circumstances, the unchallenged evidence called on behalf of the appellant which was relied upon by Boral during the course of the evidence should be accepted.
Boral was under a non-delegable obligation to provide the appellant with a safe system of work. It could not discharge that obligation by leaving it to the appellant to choose and provide his own equipment and choose the quickest method to fix cornices available to him irrespective of safety risk. The work practice adopted with respect to plasterers’ stools carried with it an obviously foreseeable risk of potential injury to the legs including the heels.
This risk had been squarely identified by Boral’s counsel in cross-examination and in effect was adopted as an element of Boral’s case. The unchallenged opinion of Mr Contoyannis permitted no other view than that the practice of jumping up onto and off a plasterers’ stool exposed the appellant to an appreciable risk of ongoing injury even if his special vulnerability was unknown.
Moreover, there was no real dispute that the risk in issue could have been obviated by requiring and facilitating other safe work practices.
It follows that Boral breached its duty of care by allowing the appellant to adopt the work practices which he did.
This conclusion is reinforced by the 1999 and 2007 Regulations which required employers to adopt ongoing measures to identify risks of musculoskeletal injury and, in response to the identification of such risks, take reasonably practicable steps to alleviate the risks. In the present case, as we have said, the work practices adopted gave rise to a foreseeable risk of musculoskeletal injury to the legs including the heels. The risk was not identified and the risk could have been avoided by the use of better equipment.
In turn, we accept that the use of plasterers’ stools to step up and down as described was a probable cause of ongoing injury to the appellant. It fell squarely within the types of stress identified by the medical witnesses as significant. It was, in turn, identified by Mr Contoyannis as one of the two work practices most likely to cause stress to the tendons of the heel (the other being the related practice of stretching up from the stool to plaster overhead).
The practice was self-evidently more stressful to the legs and feet than the other work the appellant did. Six hundred millimetres is a very high step. Stress on springing up onto the plasterers’ stool whilst carrying any sort of tools, cornice or plaster was inevitable. Stress on stepping or jumping down from it was also inevitable.
On appeal, counsel for Boral submitted that stress from jumping could not be disaggregated from the other stresses suffered by the appellant when working and hence it could not be shown that jumping was a cause of the appellant’s injuries. We do not accept this to be so. The evidence as a whole demonstrated that it is probable that ongoing inappropriate use of the plasterers’ stools contributed to the appellant’s injuries.
Conversely, we accept that the extent of the awkward heavy lifting of plaster sheets was not properly quantified. There was no detailed evidence of the frequency with which this lifting was undertaken or satisfactory evidence of the distances typically traversed. The assessment of such matters must be fact specific.[37]
[37]Cf Waugh v Kippen (1986) 160 CLR 156, 168 (Gibbs CJ, Mason, Wilson and Dawson JJ).
Furthermore, the carrying of sheets of plaster was not independently identified by Mr Contoyannis as one of the two activities most likely to place unacceptable stress on the appellant’s heels. Moreover, unlike the jumping activity, Boral did not suggest as part of its own case that carrying heavy plaster sheets was hazardous. When the evidence as to lifting of plaster sheets is considered in the context of the case as a whole, a general risk of potential injury to the legs from that activity was established, but a causal link between that activity and the appellant’s injuries was not properly proven.
Occupational Health and Safety Regulations
The same reasoning as supports a finding of breach of duty of care supports the conclusion that Boral breached both the 1999 Regulations and the 2007 Regulations. Put shortly, if it is accepted that the appellant’s use of the plasterers’ stools for work was risky and dangerous, then Boral was required to assess the consequent risk.
Further, the lifting of plaster sheets in the manner described in evidence also constituted hazardous manual handling and required risk assessment.
Boral did not take all practicable or reasonably practicable means to avoid musculoskeletal injury in consequence of the work practices in issue.
The evidence was that Boral carried out three safety audits of the appellant’s work practices during the period of his employment but those audits did not identify the work practices in issue.
The evidence plainly established that the use of plasterers’ stools was a cause of the degeneration of the appellant’s tendons. It also established that the lifting of plaster sheets was a potential cause of harm to the appellant’s legs. Nevertheless, we accept that the evidence as a whole did not adequately demonstrate that the lifting of plaster sheets was a probable cause of the appellant’s injuries.
Breach of statutory duty
By its notice of contention, Boral sought to uphold the trial judge’s decision that it was not liable to the appellant for any breach of regs 3.1.1, 3.1.2 or 3.1.3 of the 2007 Regulations. The ground upon which Boral relied was that a breach of these regulations did not confer upon the appellant a private right of action for breach of statutory duty. Although this ground was not relied upon by Boral at trial, it submitted that it was appropriate for this Court to deal with the ground because it raised a pure question of law. As we have already stated, Boral accepted that a breach of the 1999 Regulations conferred a private right of action.
The appellant objected to Boral’s notice of contention on the basis that it did not raise a pure question of law. He also submitted that if Boral had argued at trial that a breach of regs 3.1.1, 3.1.2 or 3.1.3 of the 2007 Regulations did not confer a private right of action, he would have conducted his case differently. In particular, the appellant submitted that he would have adduced additional evidence about the causal link between Boral’s alleged breach of the 1999 Regulations and his injury and would have sought to distinguish between the effects of breaches of those regulations and the effects of breaches of regs 3.1.1, 3.1.2 or 3.1.3 of the 2007 Regulations.
Ordinarily, a party will not be permitted to raise on appeal an issue which was not pursued by that party at first instance unless it raises a pure question of law (such as the construction of a statute or some other instrument) or a question that arises out of facts which are not in dispute.[38] Leave to raise a new argument on appeal usually will not be granted if evidence could have been given (including by way of cross-examination) which possibly could have prevented the argument from succeeding at trial.[39]
[38]Water Board v Moustakas (1988) 180 CLR 491, 497; Devon v Capital Finance Australia Ltd [2014] VSCA 73 [76] (‘Devon’); Boz One Pty Ltd v McLellan [2015] VSCA 68 [143] (‘Boz One’).
[39]Coulton v Holcombe (1986) 162 CLR 1, 7–8; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 461 [51]; Devon [2014] VSCA 73 [75]; Boz One [2015] VSCA 68 [143].
We have already concluded that the evidence established that Boral breached the relevant provisions of both the 1999 Regulations and the 2007 Regulations and that those breaches were a cause of the appellant’s injuries. Accordingly, he will not be prejudiced if we determine whether, as a matter of law, a breach of regs 3.1.1, 3.1.2 or 3.1.3 of the 2007 Regulations confers a private right of action.
Principles for determining when a breach of a statute confers a private right of action
In O’Connor v S P Bray Ltd,[40] Dixon J stated that, where a statute prescribed a course of conduct in the interests of the safety of members of the public or a class of them and did no more than penalise a breach of its provisions, the question of whether a private right of action arose from that statute must be determined as a matter of construction.[41] However, he was cognisant that interpretation of such a statute would rarely yield a necessary implication positively giving a civil remedy.[42] After referring to a number of authorities, he held that a provision prescribing a specific precaution for the safety of others in a matter where the person required to take the precaution was also required to exercise due care under the general law of negligence would give rise to a private right of action unless a contrary legislative intention appeared.[43] This contrary legislative intention was to be discerned from the nature of the provision or the scope of the statute in which the provision appeared.[44]
The reasons of Dixon J were cited in Sovar v Henry Lane Pty Ltd[45] by Kitto J, with whom Owen J agreed, as authority for the proposition that there was a presumption that a statute conferred a private right of action upon a complainant where it provided against personal injury and the relationship existing between the person enjoined and the person protected gave rise to a duty at common law for the former to take precautions for the safety of the latter.[46] However, Kitto J held that it was important to recognise that the question of whether a statute conferred a private right of action upon a complainant was one of statutory interpretation.[47] He relevantly stated:
The intention that such a private right shall exist is not … conjured up by judges to give effect to their own ideas of policy and then ‘imputed’ to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation.[48]
The reasons of Kitto J have been subsequently cited with approval in a number of High Court authorities, including Byrne v Australian Airlines Ltd,[49] Slivak v Lurgi (Australia) Pty Ltd[50] and Andar Transport Pty Ltd v Brambles Ltd.[51] In Byrne, the plurality (Brennan CJ, Dawson and Toohey JJ) expressed the principle as follows:
A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute … One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right. Thus … legislation designed to protect the health and safety of employees in the workplace [has] been held to impose duties the breach of which gives rise to a right to sue for damages.[52]
[49](1995) 185 CLR 410, 424, 460–1 (‘Byrne’).
[50](2001) 205 CLR 304, 316 [28].
[51](2004) 217 CLR 424, 443 [42].
[52]Byrne (1995) 185 CLR 410, 424 (citations omitted).
Kitto J’s reasons in Sovar accord with the current approach to determining the purpose of a statute favoured by the High Court. In Lacey v A-G (Qld),[53] the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) stated that statutory purpose may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The majority relevantly stated that the statutory purpose did not exist outside the statute and instead resided in its text and structure, albeit that it could be identified by reference to common law and statutory rules of construction.[54]
[53](2011) 242 CLR 573 (‘Lacey’).
[54]Lacey (2011) 242 CLR 573, 592 [44]. See also Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 311-12 [92]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46-7 [47]; Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39].
The principles discussed at [122] to [125] above apply not only to duties imposed by Acts of Parliament but also to duties imposed by regulations.[55]
[55]Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36, 49–50, 53, 55–6.
Relevant statutory provisions
Section 35(a) of the Interpretation of Legislation Act 1984 provides:
35 Principles of and aids to interpretation
In the interpretation of a provision of an Act or subordinate instrument—
(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object. …
Section 35(a) of the Interpretation of Legislation Act 1984 contemplates a limited choice between ‘a construction that would promote the purpose or object [of the Act]’ and one ‘that would not promote that purpose or object’.[56] It is distinguishable from, for example, s 14A(1) of the Acts Interpretation Act 1954 (Qld),[57] which requires preference to be given to that interpretation which will best achieve the purpose of the Act.[58]
[56]Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, 262 (‘Chugg’); Lacey (2011) 242 CLR 573, 593 [46].
[57]See also s 15AA of the Acts Interpretation Act 1901 (Cth).
[58]Lacey (2011) 242 CLR 573, 593 [46]; Chugg (1990) 170 CLR 249, 262.
Section 36(3A) of the Interpretation of Legislation Act 1984 provides that a note at the foot of a provision in an Act or subordinate instrument forms part of the Act or subordinate instrument.
The Occupational Health and Safety Act 2004 (‘2004 Act’) commenced on 1 July 2005. Section 2 of the 2004 Act relevantly sets out its objects in the following terms:
2 Objects
(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
…
having regard to the principles of health and safety protection set out in section 4.
Sections 20, 21 and 34 appear respectively under div 1, div 2 and div 6 of pt 3 of the 2004 Act. Part 3 of the Act is titled ‘General Duties Relating to Health and Safety’. Division 1 of pt 3 is titled ‘The Concept of Ensuring Health and Safety’, div 2 is titled ‘Main Duties of Employers’ and div 6 is titled ‘Other Matters’. Sections 20, 21 and 34 relevantly provide:
20 The concept of ensuring health and safety
(1)To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a) to eliminate risks to health and safety so far as is reasonably practicable; and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
…
21 Duties of employers to employees
(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
…
(4) An offence against subsection (1) is an indictable offence.
Note
However, the offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009).
…
34 Civil liability not affected by this Part
Nothing in this Part is to be construed as—
(a) conferring a right of action in civil proceedings in respect of a contravention of a provision of this Part; or
(b) conferring a defence to an action in civil proceedings or otherwise affecting a right of action in civil proceedings; or
(c) affecting the extent (if any) to which a right of action arises, or civil proceedings may be taken, with respect to breaches of duties or obligations imposed by the regulations.
Sections 152 and 158 appear under pt 13 of the 2004 Act, which is titled ‘Other Matters’. Those sections relevantly provide:
152 Effect of compliance with regulations or compliance codes
If—
(a) the regulations or a compliance code make provision for or with respect to a duty or obligation imposed by this Act or the regulations; and
(b) a person complies with the regulations or compliance code to the extent that it makes that provision—
the person is, for the purposes of this Act and the regulations, taken to have complied with this Act or the regulations in relation to that duty or obligation.
…
158 Regulations
(1) The Governor in Council may make regulations for or with respect to the following—
(a) the way in which duties or obligations imposed by this Act or the regulations are performed;
(b)regulating or prohibiting specified activities or a specified class of activities—
(i) at workplaces or a specified class of workplaces; or
(ii) by a specified class of persons on whom duties or obligations are imposed by this Act—
to eliminate or reduce risks to health or safety;
…
(p) prescribing a penalty for any contravention of the regulations not exceeding—
(i) 100 penalty units for a natural person; and
(ii) 500 penalty units for a body corporate, or 5 times the penalty prescribed for such a contravention by a natural person, whichever is the lesser.
The 2007 Regulations commenced on 1 July 2007. Regulations 3.1.1, 3.1.2 and 3.1.3 were made under s 158 of the 2004 Act. Regulation 1.1.1(a) sets out the following relevant objectives of the 2007 Regulations:
1.1.1 Objectives
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
…
(vii)providing for other matters that are required or permitted by the Act or that are necessary to give effect to the Act.
Regulation 1.1.5 defines an ‘Act compliance provision’ as a provision of the kind referred to in reg 1.1.7. Regulation 1.1.7 provides:
1.1.7 Act compliance notes
If a note at the foot of a provision of these Regulations states ‘Act compliance’ followed by a reference to a section number, the regulation provision sets out the way in which a person's duty or obligation under that section of the Act is to be performed in relation to the matters and to the extent set out in the regulation provision.
Note
A failure to comply with a duty or obligation under a section of the Act referred to in an ‘Act compliance’ note is an offence to which a penalty applies.
Regulations 3.1.1, 3.1.2 and 3.1.3 appear under pt 3.1 of ch 3 of the 2007 Regulations. Chapter 3 is titled ‘Physical Hazards’ and pt 3.1 is titled ‘Manual Handling’. Although the trial judge’s summary of regs 3.1.1, 3.1.2 and 3.1.3 has already been set out at [23] above, in order to analyse Boral’s submissions, it is necessary to set out those regulations in more detail. Those regulations relevantly provide:
3.1.1 Hazard identification
(1) An employer must, so far as is reasonably practicable, identify any task undertaken, or to be undertaken, by an employee involving hazardous manual handling.
Notes
1 Act compliance—section 21 (see regulation 1.1.7).
2 Hazardous manual handling is defined in regulation 1.1.5).[59]
[59]We will not set out the definition of ‘hazardous manual handling’ because Boral has not submitted that the appellant’s work did not involve such handling.
…
3.1.2 Control of risk
(1) An employer must 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.
Note
Act compliance—section 21 (see regulation 1.1.7).
(2) If it is not reasonably practicable to eliminate the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee, an employer must reduce that risk so 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).
Notes
1 Act compliance—section 21 (see regulation 1.1.7).
…
(3) 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 accordance with subregulation (2), the employer may control that risk by the use of information, instruction or training.
Notes
1 Act compliance—section 21 (see regulation 1.1.7).
2 An employer may only rely solely or primarily on the use of information, instruction or training to control a risk if none of the measures set out in subregulation (2) is reasonably practicable.
(4) Without affecting the generality of subregulations (1), (2) and (3), an employer, when determining any measure to control any risk of musculoskeletal disorder, must address the following factors—
(a) postures; and
(b) movements; and
(c) forces; and
(d) duration and frequency of the task; and
(e) environmental conditions including heat, cold and vibration that act directly on a person undertaking the task.
Notes
1 Act compliance—section 21 (see regulation 1.1.7).
…
3.1.3 Review of risk control measures
(1) An employer must ensure that any measures implemented to control risks in relation to musculoskeletal disorders are reviewed and, if necessary, revised—
(a) before any alteration is made to objects used in a workplace or to systems of work that include a task involving hazardous manual handling, including a change in the place where that task is undertaken; or
(b) before an object is used for another purpose than that for which it was designed if that other purpose may result in an employee carrying out hazardous manual handling; or
(c) if new or additional information about hazardous manual handling being associated with a task becomes available to the employer; or
(d) if an occurrence of a musculoskeletal disorder in a workplace is reported by or on behalf of an employee; or
(e) after any incident occurs to which Part 5 of the Act applies that involves hazardous manual handling; or
(f) if, for any other reason, the risk control measures do not adequately control the risks; or
(g) after receiving a request from a health and safety representative.
Note
Act compliance—section 21 (see regulation 1.1.7).
…
In contrast to regs 3.1.1, 3.1.2 and 3.1.3 of the 2007 Regulations, some regulations do not contain an Act compliance note and thus do not constitute an Act compliance provision. For example, reg 3.5.6(1), which appears under pt 3.5 (titled ‘Plant’) of ch 3, provides:
3.5.6 Operational stop controls and emergency stop devices
(1) If plant is designed to be operated or attended by more than one person and more than one stop control is fitted, the designer of the plant must ensure that the design provides for the multiple stop controls to be of the ‘stop and lock-off’ type so that the plant cannot be restarted after a stop control has been used unless each stop control is reset.
Penalty: 100 penalty units for a natural person;
500 penalty units for a body corporate.
No case has expressly held that a breach of regs 3.1.1, 3.1.2 or 3.1.3 of the 2007 Regulations confers a private right of action. However, some cases have assumed that such a breach did so.[60]
Legislative history
The 2004 Act replaced the Occupational Health and Safety Act 1985 (‘1985 Act’) following a review of the 1985 Act by Mr Chris Maxwell QC (as his Honour then was).[61] The 1985 Act came into operation on 30 July 1985 and was repealed by s 159 of the 2004 Act with effect from 1 July 2005.[62]
[61]Chris Maxwell, State of Victoria, Occupational Health and Safety Act Review (2004).
[62]The 2004 Act contained a transitional provision that provided for the continuing operation of the 1999 Regulations after the commencement of the 2004 Act but prior to the commencement of the 2007 Regulations: see s 172 of the 2004 Act. Section 175(2) of the 2004 Act also provided that s 47 of the 1985 Act, which is described at [141] below, continued to apply to certain regulations made under the 1985 Act, including the 1999 Regulations. Accordingly, penalties continued to apply for contraventions of the 1999 Regulations during the period between the commencement of the 2004 Act and the commencement of the 2007 Regulations.
Section 6 of the 1985 Act set out its objects in the following terms:
6. Objects of Act
The objects of this Act are—
(a) to secure the health, safety and welfare of persons at work;
(b) to protect persons at work against risks to health or safety;
(c) to assist in securing safe and healthy work environments;
(d) to eliminate, at the source, risks to the health, safety and welfare of persons at work; …
Sections 21(1), 27 and 28 of the 1985 Act appeared under pt 3 of the Act, which was titled ‘General Provisions Relating to Occupational Health and Safety’. Those sections relevantly provided:
21. Duties of employers
(1) An employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health.
…
…
27. Compliance with regulations is compliance with Part 3
Where the regulations make provision for or in relation to any duty, obligation, act, matter or thing to which this Part applies, a person who complies with the regulations in relation to that duty, obligation, act, matter or thing shall be deemed to have complied with this Part in relation to that duty, obligation, act matter or thing.
28. Civil liability not affected by Part 3
Nothing in this Part shall be construed as—
(a) conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of this Part;
(b) conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings; or
(c) affecting the extent (if any) to which a right of action arises or civil proceedings may be taken with respect to breaches of duties imposed by the regulations.
Section 47 of the 1985 Act appeared under pt 7 of the Act, which was titled ‘Legal Proceedings’. Section 47(1) relevantly provided:
47. General
(1) Any person who contravenes or fails to comply with any provision of this Act or the regulations shall be guilty of an offence against this Act.
…
(3)An offence against this Act (not being a contravention of or failure to comply with a provision of the regulations) shall be an indictable offence.
Section 59 of the 1985 Act appeared under pt 8 of the Act, which was titled ‘General’. It relevantly provided:
59. Regulations
(1) The Governor in Council may make regulations for or with respect to the safety, health and welfare of persons at workplaces.
(2) Without in any way limiting the generality of subsection (1), regulations may be made for the purposes of that sub-section for or with respect to any of the matters specified in Schedule One.
Schedule One of the 1985 Act included the following matters:
1. Regulating or prohibiting—
…
(c) the carrying on of any process or the carrying out of any operation.
…
46. Providing for contravention of or failure to comply with a provision of a regulation to be an indictable offence or a summary offence.
47.Prescribing penalties for any contravention of or failure to comply with the regulations not exceeding the penalties set out in section 47(2). …
The 1999 Regulations were made under s 59 of the 1985 Act and their objective was ‘to reduce the number and severity of musculoskeletal disorders associated with tasks involving manual handling’.[63] As their name suggests, those regulations dealt specifically with manual handling in the workplace. There were many other regulations that were made under the 1985 Act which dealt with discrete activities in the workplace. As discussed below, after the 2004 Act was enacted, and following a transition period,[64] the provisions of most of the discrete regulations were consolidated into a single set of regulations, namely, the 2007 Regulations. Thus the provisions of the 1999 Regulations were re-made as pt 3.1 of ch 3 of the 2007 Regulations.
[63]1999 Regulations reg 1.
[64]See n 62 above.
At trial, the appellant relied on regs 7, 12, 13, 14 and 15 of the 1999 Regulations. The trial judge’s summary of those regulations is set out at [23] above. For present purposes, it suffices for us to say that those regulations reflected in broad terms the substantive provisions of regs 3.1.1, 3.1.2 and 3.1.3 of the 2007 Regulations. However, the provisions of the 1999 Regulations did not contain an Act compliance note. In accordance with s 47(1) of the 1985 Act, a breach of a provision of the 1999 Regulations constituted an offence against the Act.
Numerous cases in the trial division have held that a breach of the 1999 Regulations conferred a private right of action[65] or have assumed that it did so.[66] Two of those cases cited Dixon J’s reasons in O’Connor in support of this conclusion.[67]
[65]McCallion v U R Machinery Sales Pty Ltd [1999] VSC 543 [23]–[25] (‘McCallion’); Acir v Frosster Pty Ltd [2009] VSC 454 [216]–[227] (‘Acir’); Li v Toyota Motor Corporation Australia Ltd [2010] VSC 458 [57], [70]; Franklin v Kone Elevators Pty Ltd [2011] VSC 108 [120]. McCallion dealt with the Occupational Health and Safety (Manual Handling) Regulations 1988.
[66]See Papadopoulos v MC Labour Hire Services Pty Ltd [No 1] (2009) 184 IR 402, 403 [1]–[5]; Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436 [97]; Johnson v Box Hill Institute of TAFE [2014] VSC 626 [14], [134]–[141], [168]; Pasqualotto v Pasqualotto [2013] VSCA 21; Duma v Mader International Pty Ltd [2013] VSCA 23 [2], [16]–[22], [61]–[67].
[67]McCallion [1999] VSC 543 [25]; Acir [2009] VSC 454 [225].
In Acir,[68] J Forrest J stated that it was the relationship between the employer and employee and the clear Parliamentary intention to promote health and safety that underpinned previous authorities which supported the conferral of a private right of action on injured workers by occupational health and safety statutes.[69] Justice J Forrest relied on s 28(c) of the 1985 Act for the proposition that, although a breach of the general statutory duties imposed under pt 3 of that Act did not confer a civil right of action, the question of whether a breach of a provision of the 1999 Regulations conferred such a right was governed by the principles of statutory interpretation discussed in cases such as O’Connor.[70]
Prior to the 1999 Regulations being replaced by the provisions of pt 3.1 of ch 3 of the 2007 Regulations, Victorian WorkCover Authority (‘VWA’) published a Regulatory Impact Statement (‘RIS’). An Explanatory Memorandum (‘EM’) was also provided to the Governor in Council when the 2007 Regulations were made.
Paragraph 2 of the EM stated that the ‘substance’ of the 1999 Regulations and 12 other regulations ‘form the proposed [2007 Regulations]’. Paragraph 4 of the EM described the effect of the 2007 Regulations as follows:
The effect of the proposed Regulations is to continue an improved occupational health and safety regulatory regime for Victoria, a regime which would otherwise end in accordance with the transitional provisions of the [2004] Act. … The thirteen current disparate [sets] of regulations have been consolidated to reduce duplication, and therefore compliance costs and to bring Victoria’s occupational health and safety regulation in line with national standards.
The RIS contained the following relevant statements:
For the most part, the proposed Regulations remake the existing Regulations with no substantive policy change. That is, there has been a translation of existing requirements from the existing Regulations to the … proposed Regulations.
…
In developing the proposed … Regulations, [VWA] used the existing Regulations as the minimum scope, and considered:
· existing national commitments (e.g. National Standards, Workplace Relations Ministers’ Council agreements);
· Victorian Government and [VWA] commitments; and
· hazards and issues that have been identified by government, stakeholders or [VWA] through evidence that indicates serious levels of risk from exposure to a hazard or risk, and that regulation is likely to be the most effective means of addressing the issue.
…
The addition of specific OHS regulations to complement legislated general duties can address the uncertainty associated with sole reliance on general duties and shortcomings associated with reliance on market forces and insurance schemes.
…
The … 1985 [Act] was outmoded in two significant ways in relation to penalties:
· the maximum penalties were not high enough to provide the Courts with a penalty regime that could respond to the ‘worst’ offences and provide real deterrence; and
· overall the penalties failed to distinguish between the relative severity of various offences.
The … 2004 [Act] has remedied this by introducing a range of penalty levels. For example, to illustrate the differences:
· failing to produce a document to an inspector carries a maximum penalty for a body corporate of 300 penalty units (currently $32 329); whereas
· the obligation on an employer to provide a working environment that is safe and without risks carries a maximum penalty for a body corporate of 9000 penalty units (currently $966 870).
The proposed ... Regulations must also mirror that differentiation between grave and lesser offences to be consistent with the Act.
In addition, the proposed Regulations set out requirements for how duty holders must carry out their OHS responsibilities under the … 2004 [Act]. In those instances, it would be confusing and inconsistent to have both an Act and a Regulation penalty applicable to the same breach.
For example, while the proposed ... Regulations will mandate proper guarding for machinery, an employer who fails to meet this obligation and causes serious injury to a worker will most often be prosecuted under section 21 of the Act for failing to provide a safe workplace. This carries a maximum penalty of $193 374 for an individual and $966 870 for a company.
Alternately, employers who are found to have ignored their responsibility to notify [VWA] of a change of ownership of a piece of prescribed machinery, will now face penalties specifically tailored to the offence which are noted in the regulation itself.
[VWA] has considered each regulatory provision to determine offences and allocate penalties as appropriate for the type and seriousness of the offence.
…
[M]anual handling remains a major issue in Victorian workplaces. In 2004–05, there were 14 075 manual handling claims, representing 46 per cent of total claims.
…
While there are general legislative duties covering OHS in workplaces, there is a case for more specific duties to be imposed in relation to manual handling. It remains a significant, multi–factorial occupational health risk. Without regulated risk control duties, employers may not consistently put in place the most effective measures to control the risk and protect workers from the risk of developing [musculoskeletal disorders].
Risks associated with manual handling are currently regulated by the [1999 Regulations]. These Regulations are consistent with the intent of the National Standard for Manual Handling and with the risk management provisions of the revised National Standard due for release in late 2006.
…
MAIN CHANGES RESULTING FROM THE REVIEW OF THE MANUAL HANDLING REGULATIONS
No substantive changes are proposed, other than those relating to overarching policies. In particular, the risk assessment duty has been removed and the risk control duty has been amended to include greater specificity of the factors to be controlled.[71]
[71]The Allen Consulting Group, Victorian WorkCover Authority, Regulatory Impact Statement: Proposed Occupational Health and Safety Regulations 2007 and Proposed Equipment (Public Safety) Regulations 2007 (2007), 2, 9, 34, 53–4, 63–5 (citations omitted) (italics in original).
Parties’ submissions on conferral of a private right of action
Relying on the principles summarised at [122] to [126] above, Boral submitted that whether or not a breach of a statutory duty is privately actionable is a question of construction. Boral accepted that, in the case of industrial safety legislation, the legislature would be presumed to have intended to confer a private right of action but this presumption could be rebutted by a contrary legislative intention.
Boral submitted that the relevant provisions of the 2007 Regulations evince such a contrary legislative intention, even though the 1999 Regulations did not do so,[72] because those provisions of the 2007 Regulations are materially different to the 1999 Regulations. According to Boral, such a contrary legislative intention arises in the following way:
[72]See [146] above.
(m) Section 158(1)(a) of the 2004 Act, which has no counterpart in the 1985 Act, provides that the Governor in Council may make regulations with respect to ‘the way in which duties or obligations imposed by [the 2004 Act] … are performed’.
(n) Regulations 3.1.1, 3.1.2 and 3.1.3 of the 2007 Regulations were made pursuant to s 158(1)(a) of the 2004 Act with respect to the way in which duties or obligations imposed by s 21 of the 2004 Act are to be performed, and do not prescribe a separate stand-alone duty.
(o) By virtue of the Act compliance notes in regs 3.1.1, 3.1.2 and 3.1.3 of the 2007 Regulations, those provisions constitute Act compliance provisions. According to reg 1.1.7, those provisions set out the way in which an employer’s duty under s 21 of the 2004 Act is to be performed in relation to the manual handling matters set out in those provisions but do not themselves impose any duties.
(p) It follows that a breach of a duty set out in regs 3.1.1, 3.1.2 or 3.1.3 of the 2007 Regulations constitutes a breach of s 21 of the 2004 Act and is punishable as an offence against the Act rather than as an offence against those regulations.[73] This is confirmed by the note to reg 1.1.7.
(q) As a breach of regs 3.1.1, 3.1.2 or 3.1.3 of the 2007 Regulations constitutes a breach of s 21 of the 2004 Act, s 28(a) has the effect that such a breach does not confer a private right of action.
[73]Boral relied on the fact that, unlike regs 3.1.1, 3.1.2 and 3.1.3, other regulations — such as reg 3.5.6 — prescribe penalties for contraventions of their provisions.
Accordingly, it was submitted that a breach of regs 3.1.1, 3.1.2 or 3.1.3 only constitutes a breach of s 21 of the 2004 Act. Since, pursuant to s 34(a), s 21 does not confer a private right of action in civil proceedings, it was said to follow that regs 3.1.1, 3.1.2 and 3.1.3 do not confer a private right of action on the appellant.
The appellant submitted that, on their proper construction, the 2007 Regulations did not evince a contrary intention for the purpose of rebutting the presumption that a breach of regs 3.1.1, 3.1.2 or 3.1.3 conferred a private right of action. In support of this submission, the appellant relied upon:
(r) the text of the 2007 Regulations, construed in the context of the 2004 Act;
(s) the objects of the 2004 Act and the 2007 Regulations;
(t) the legislative history of regs 3.1.1, 3.1.2 and 3.1.3;
(u) the ‘re-enactment presumption’[74] pursuant to which it was said that the judicial interpretation of the provisions of the 1999 Regulations is presumed to also apply to the equivalent provisions in the 2007 Regulations;
(v) the fact that this Court has proceeded on the basis that a breach of regs 3.1.1, 3.1.2 or 3.1.3 confers a private right of action in the same way as a breach of the 1999 Regulations previously did;[75] and
(w) The fact that, during the transition period from 1 July 2005 until 1 July 2007, the 1999 Regulations operated in conjunction with the 2004 Act.[76]
[74]See Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10 [15]–[16], [27].
[75]See [137] above.
[76]See n 62 above.
In relation to the text of the 2007 Regulations, the appellant submitted that regs 3.1.1, 3.1.2 and 3.1.3 were made pursuant to para (b) of s 158(1) of the 2004 Act or, alternatively, paras (a) and (b). The appellant also contended that the Act compliance note mechanism that is given effect by reg 1.1.7 deals with the manner in which offences are to be prosecuted and the severity of the penalties to be imposed for a breach of a regulation containing such a note and does not affect the question of whether such a breach confers a private right of action.
Decision on conferral of private right of action
In our opinion, a breach of regs 3.1.1, 3.1.2 or 3.1.3 of the 2007 Regulations confers a private right of action upon a worker who is injured as a result of such a breach.
As these regulations are designed to protect the health and safety of employees in the workplace, in accordance with the principles summarised at [122] to [126] above, a presumption arises that a breach of the duties they impose gives rise to a right to sue for damages. That presumption is reinforced by the fact that those duties are in substance the same as the duties previously imposed by the 1999 Regulations, breaches of which for many years have been held to give rise to such a right.[77] The presumption means that this right will subsist unless the 2007 Regulations evince a contrary intention, that is, an intention that a breach of regs 3.1.1, 3.1.2 or 3.1.3 will not give rise to this right. Given the beneficial subject matter and history of these regulations, such a contrary intention must appear with sufficient clarity from the 2004 Act or the 2007 Regulations and is not to be found lightly.
[77]The passage from Kitto J’s judgment in Sovar (1967) 116 CLR 397 which is set out at [123] above makes it clear that the pre-existing state of the law is relevant to the question of construction.
As they deal with the same subject matter, it is not surprising that the presently relevant provisions of the 1985 Act and those of the 2004 Act are strikingly similar. The same applies to the presently relevant provisions of the 1999 Regulations and those of the 2007 Regulations. Thus:
(x) The objects of the 1985 Act are similar to those of the 2004 Act. Likewise, the objects of the 1999 Regulations are similar to those of the 2007 Regulations.
(y) The general duty on employers imposed by s 21 of the 1985 Act is similar to the general duty imposed by s 21 of the 2004 Act. Both Acts provide that a breach of their respective s 21 constitutes a criminal offence[78] but does not give rise to a civil cause of action.[79]
[78]See s 47(1) of the 1985 Act and s 21 of the 2004 Act.
[79]See s 28(a) of the 1985 Act and s 34(a) of the 2004 Act.
(z) Under both statutory regimes, a person who breaches any of the presently relevant regulations made under each Act is guilty of an offence against that Act rather than an offence against the regulations.[80]
[80]See s 47(1) of the 1985 Act and reg 1.1.7 of the 2007 Regulations, read with ss 21 and 158(1)(a) of the 2004 Act. Section 47(2) of the 1985 Act provided that a breach of the regulations made under that Act was not an indictable offence. Section 21(1) of the 2004 Act provides that a breach of that section is an indictable offence.
(aa) Both Acts provide that nothing in them is to be construed as affecting the extent to which a right of action arises with respect to breaches of duties imposed by the regulations made under them.[81] In other words, both Acts recognise that a breach of the regulations made under that Act may confer a private right of action even though a breach of the Act does not.
[81]See s 28(c) of the 1985 Act and 34(c) of the 2004 Act.
(bb) Both Acts state that, if the regulations make provision for a duty imposed by the Act, then compliance with the regulations also constitutes compliance with the Act in relation to that duty.[82]
(cc) The regulation-making powers in s 59 and sch 1 of the 1985 Act are similar to those in s 158 of the 2004 Act.
(dd) The substantive duties imposed on an employer by the 1999 Regulations are, in material respects, the same as those imposed by regs 3.1.1, 3.1.2 and 3.1.3 of the 2007 Regulations.
[82]See s 27 of the 1985 Act and s 152 of the 2004 Act.
In the light of the above similarities, one would expect that a breach of regs 3.1.1, 3.1.2 or 3.1.3 of the 2007 Regulations would give rise to a private right of action in the same way that the authorities have consistently held that a breach of the 1999 Regulations did so. Further, as the long-standing position has been that a breach of manual handling regulations gives rise to a private right of action, one would expect that an intention to alter this position under the 2007 Regulations would be stated expressly in those regulations.
Section 34(a) of the 2004 Act is an example of a provision which expressly rebuts the presumption that a breach of a statutory duty dealing with the safety of workers gives rise to a private right of action. However, that provision only applies to breaches of that Act and does not apply to a breach of the 2007 Regulations. Those regulations do not include an express provision to the effect that a breach of regs 3.1.1, 3.1.2 or 3.1.3 does not confer a private right of action. The critical issue is whether there is anything in the 2004 Act or the 2007 Regulations from which an intention can be inferred that a breach of those regulations does not give rise to a private right of action.
In our opinion, Boral’s analysis, as summarised at [152] above, is flawed for the following reasons.
Boral has erroneously assumed that regs 3.1.1, 3.1.2 and 3.1.3 of the 2007 Regulations have been made exclusively under para (a) of s 158(1) of the 2004 Act rather than under both paras (a) and (b) of that section. As senior counsel for Boral conceded on the appeal, a regulation can be made pursuant to multiple sources of power. There is nothing in paras (a) and (b) of s 158(1) that indicates that they are mutually exclusive sources of power.
Traditionally, workplace safety regulations have been made for the purpose of regulating or prohibiting unsafe activities at workplaces by imposing duties on employers which are aimed at eliminating or reducing risks to the health or safety of workers. Some manual handling activities are known to pose risks to the musculoskeletal health of workers. The purpose for which the 1999 Regulations — and their predecessor regulations, the Occupational Health and Safety (Manual Handling) Regulations 1988 — were made was to eliminate or reduce those risks because they were regarded as unacceptable and in need of regulation. That is also one of the purposes for which regs 3.1.1, 3.1.2 and 3.1.3 of the 2007 Regulations were made. The fact that these regulations have also been made for another purpose — to specify how employers are to perform the duty set out in s 21 of the 2004 Act — does not mean that they have not been made for the traditional purpose. It follows that regs 3.1.1, 3.1.2 and 3.1.3 have been made under both paras (a) and (b) of s 158(1).
As regs 3.1.1, 3.1.2 and 3.1.3 of the 2007 Regulations have been made under both paras (a) and (b) of s 158(1) of the 2004 Act, conduct which constitutes a breach of one of these regulations may have multiple legal consequences.[83] One consequence, which flows from the fact that regs 3.1.1, 3.1.2 and 3.1.3 have been made for the purpose set out in para (a) of s 158(1) of the 2004 Act and from the wording of reg 1.1.7, is that the conduct constitutes an offence against s 21 of the Act. As such, the conduct attracts a criminal penalty but does not give rise to a private right of action.[84] Another consequence, which flows from the fact that regs 3.1.1, 3.1.2 and 3.1.3 have been made for the purpose set out in para (b) of s 158(1), is that the conduct constitutes a breach of those regulations. As the regulations deal with the safety of workers, that breach — whether or not it constitutes an offence against s 21 of the Act — gives rise to a private right of action in accordance with the long-standing presumption that applies to breaches of regulations of that type.[85]
[83]In a typical case where a statute provides only one legal consequence — a criminal penalty — for a breach of an industrial safety obligation, the courts have had no difficulty in finding that a second legal consequence — a private right of action — applied.
[84]See s 34(a) of the 2004 Act.
[85]See s 34(c) of the 2004 Act.
In other words, the purpose reflected in s 158(1)(a) of the 2004 Act is furthered by the criminal law — by a breach of regs 3.1.1, 3.1.2 or 3.1.3 of the 2007 Regulations being treated as offences against s 21 of the Act and attracting the higher penalties for such a breach — whereas the purpose reflected in s 158(1)(b) is furthered by the civil law — by conferring a private right of action on a worker who is injured as a result of a breach of those regulations. This is no different from the position that prevailed under the 1999 Regulations: a breach of these regulations constituted an offence against the Act as well as conferring a private right of action. These dual consequences have never been regarded as being necessarily mutually exclusive and there is no reason to treat them as such for the purposes of regs 3.1.1, 3.1.2 and 3.1.3.
Section 34 of the 2004 Act draws a clear distinction between the consequences of a contravention of a provision of the Act as distinct from a breach of a duty or obligation imposed by the regulations made under that Act. While conduct which constitutes a breach of the Act cannot give rise to a private right of action, conduct which constitutes a breach of a duty or obligation imposed by a regulation may do so depending on the application of the principles set out at [122] to [126] above. Section 34(b) also recognises that criminal and civil liability are not co-extensive, in the sense that conduct which does not attract a criminal penalty because of the applicability of a defence may nevertheless give rise to civil liability.[86]
[86]Sovar (1967) 116 CLR 397.
A failure to comply with regs 3.1.1, 3.1.2 or 3.1.3 of the 2007 Regulations has the character of a breach of a duty or obligation imposed by the relevant regulation for the purposes of s 34(c) of the 2004 Act. There is nothing in reg 1.1.7 that seeks to alter that characterisation. In particular, reg 1.1.7 does not say that a breach of a regulation that contains an Act compliance note constitutes a contravention of the Act or that it does not constitute a breach of the relevant regulation. Accordingly, there is nothing in reg 1.1.7 which precludes s 34(c) from applying to a breach of regs 3.1.1, 3.1.2 or 3.1.3 and from effect being given to the presumption that such a breach gives rise to a private right of action.
The interpretation that we have adopted is in accordance with s 35(a) of the Interpretation of Legislation Act 1984. This is because the interpretation promotes the objective of the 2007 Regulations of providing for the health and safety of workplaces that involve hazardous manual handling by providing a double incentive — criminal and civil liability — for employers to comply with the prescribed safety requirements.
As the principle of legality demonstrates, the courts are vigilant in protecting long-standing legal rights by construing legislation as not having the effect of abrogating those rights unless the legislation evinces an intention to do so either expressly or by necessary implication.[87]
[87]See Lacey (2011) 242 CLR 573, 591–2 [43].
In the present case, the subject matter of regs 3.1.1, 3.1.2 and 3.1.3 of the 2007 Regulations is manual handling procedures that are prescribed to ensure the safety of workers. That subject matter is of a kind that has, over many years, attracted the presumption that a breach gives rise to a private right of action. Neither the 2004 Act nor the 2007 Regulations state expressly or provide by necessary implication that the long-standing right of action is to no longer apply. As we have demonstrated, the 2004 Act and the 2007 Regulations can be construed consistently with the preservation of the long-standing right.
Boral’s contention that the 2007 Regulations contain a contrary intention which has the effect of rebutting the presumption that a breach of regs 3.1.1, 3.1.2 or 3.1.3 gives rise to a private right of action has no support either in the legislative history of the 2007 Regulations or the extrinsic materials relating to those regulations.
The legislative history of the 2007 Regulations bolsters the presumption rather than rebutting it because it does not indicate that there is any rational reason for not preserving what has been a long-standing legal right.
The extrinsic materials indicate that the 1999 Regulations were replaced by pt 3.1 of ch 3 of the 2007 Regulations for reasons of administrative efficiency and that the Act compliance note mechanism which is given effect by reg 1.1.7 was introduced as part of a system that classified offences according to their seriousness. The extrinsic materials recognised the risks associated with manual handling activities and the need to deal with them by imposing specific duties in the 2007 Regulations. There is nothing in those materials to indicate an intention to change the rights previously available to workers who were injured as a result of a breach of a regulation dealing with manual handling. The analysis of the costs and benefits of the 2007 Regulations in the RIS does not include any savings that would arise from a putative removal of a private right of action.
In the final analysis, Boral’s submissions amount to the proposition that s 158(1)(a) of the 2004 Act and reg 1.1.7 of the 2007 Regulations are sufficient to carry the burden of providing a contrary intention so as to displace the presumption that a breach of regs 3.1.1, 3.1.2 or 3.1.3 gives rise to a private right of action. However, when the 2007 Regulations are read as a whole and in the context of the 2004 Act and the legislative history of both the regulations and the Act, it becomes clear that those provisions are simply incapable of carrying that burden. They fall far short of evincing an intention that suffices to displace the presumption. In the light of the abovementioned context and history, one would have expected the Governor in Council to have used unambiguous language in the 2007 Regulations if it had been intended that a breach of regs 3.1.1, 3.1.2 or 3.1.3 would not give rise to a private right of action. Rather than such language being deployed, the wording of the 2007 Regulations is easily capable of enabling the presumption to have effect.
In arriving at the above conclusions, we have not relied on the re-enactment presumption as we do not consider that it has any application to the present case. This is because the case does not involve particular words or phrases in the 1999 Regulations which, following judicial interpretation, have been re-enacted in the 2007 Regulations. Rather, this case concerns whether the relevant provisions of the 2007 Regulations evince an intention to displace the presumption that a breach of those provisions gives rise to a private right of action. The fact that the 1999 Regulations were long-held not to evince such an intention is relevant to that question in the manner that we have described above but not by virtue of the re-enactment presumption.
It follows that Boral’s contention must be rejected.
Contributory negligence
The evidence that makes out the appellant’s case also demonstrates that the work practices adopted by him utilised benches he himself supplied and were plainly risky. Moreover, it is difficult to see how they could have been regularly adopted without some incidental pain in the heel region directly alerting the appellant to the risk in issue. It follows that a significant issue of contributory negligence arises. We accept that scaffold and an alternative form of step stool, the ‘Step Up’, were available. It must have been practicable to fix stable steps to the scaffold in circumstances where the ‘Step Up’ stool did not suffice. In all the circumstances, we would assess contributory negligence at 30 per cent. Despite the appellant’s contributory negligence, Boral must bear the greater share of responsibility. Boral had overarching responsibility for the system of work. It owed the appellant a non-delegable duty of care. Once it is concluded that the appellant was an employee, Boral could not treat the equipment and procedures utilised as a matter for the ‘contractor’. Further, Boral owed a duty under the relevant Regulations to take all reasonably practicable steps to avoid the risk of musculoskeletal injury to the appellant. That duty also could not be properly discharged by relying on the ‘contractor’.
Conclusion
In final address at trial, counsel for Boral put at one point that the complaints made by the appellant were about ladders, over-stretching, dirty sites and mud. It was further submitted that there was nothing particular about the work. The trial judge in effect accepted this submission. In our view, he was wrong to do so and in turn he was wrong to reject the appellant’s case. We would allow the appeal. We would find for the appellant on the claim for breach of duty of care and for breach of statutory duty for the reasons we have given. We would also assess contributory negligence at 30 per cent. We would remit the matter to the County Court for the assessment of quantum.
- - -
- AGLC
- Govic v Boral Australian Gypsum Ltd [2015] VSCA 130
- Case
- [2015] VSCA 130
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the court to determine were whether the defendant breached their duty to take reasonable care to avoid the risk of injury and whether the defendant breached a statutory duty under the Occupational Health and Safety (Manual Handling) Regulations 1999 and the Occupational Health and Safety Regulations 2007. Additionally, the court needed to decide if the plaintiff had a private right of action for breach of these regulations. The court also had to consider the relevance of the defendant's adoption of facts upon which expert opinion was based, particularly regarding the establishment of an unsafe system of work.
The Court of Appeal found that the defendant breached its duty to take reasonable care by failing to implement an effective system of work to prevent the risk of injury. The court concluded that the plaintiff had established that the defendant had an unsafe system of work. The court found that the defendant adopted facts establishing the unsafe system of work, which was relevant in determining the breach of duty. Furthermore, the court held that the plaintiff had a private right of action for the breach of regulations made under the Occupational Health and Safety Act 2004. The court allowed the appeal, finding that the plaintiff was entitled to compensation for the injuries sustained.
The final orders of the court included a determination that the defendant was liable for the plaintiff's injuries and that the plaintiff was entitled to receive compensation for the injuries sustained, including damages for pain and suffering, loss of earnings, and medical expenses. The court also noted that the defendant's adoption of facts related to the unsafe system of work was a significant factor in its decision.
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