Haidari v VWA & Ors (Ruling)

[2024] VCC 661

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-20-04597

MOHAMMAD QASIM HAIDARI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	First Defendant
and
SHANGRI-LA CONSTRUCTION PTY LTD	Second Defendant
and
MAX LUCAS DEVELOPMENT AND CONSTRUCTION PTY LTD	Third Defendant

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JUDGE:	HER HONOUR JUDGE CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2024
DATE OF RULING:	30 April 2024
CASE MAY BE CITED AS:	Haidari v VWA & Ors (Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VCC 661

RULING
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Subject:CIVIL PROCEDURE – ACCIDENT COMPENSATION 

Catchwords:              Pleadings – application for leave to amend pleading to include breach of manual handling regulations – whether plaintiff’s task constitutes hazardous manual handling

Legislation Cited:      Occupational Health and Safety Regulations 2007

Cases Cited:Deal v Kodakkathanath (2016) 258 CLR 281

Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436
Warren Meade v Nillumbik Australia Pty Ltd [2018] VSC 328

Ruling:  Plaintiff’s application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Richards with I Murphy	Zaparas Lawyers
For the First Defendant	D McWilliams with J Zhu	IDP Lawyers
For the Second Defendant	J Angenent	Moray & Agnew
For the Third Defendant	No appearance	-

HER HONOUR:

1Prior to the commencement of the trial, the plaintiff’s counsel sought leave to amend the regulations upon which the plaintiff relied in his claim for breach of statutory duty.

2The plaintiff had pleaded that the employer and the second defendant had breached their duties owed under the Occupational Health and Safety Regulations 2007 (“the Regulations”) and in particular:

(a)   Regulation 3.4.6 – Failing to identify all hazards to health and safety associated with work in a confined space; and

(b)   Regulation 3.4.6 – Failing to ensure that any risk associated with work in a confined space is eliminated or reduced so far as is reasonably practicable.

3The plaintiff sought to remove references to those regulations and to instead plead breaches of the manual handling regulations at Part 3.1 of the Regulations.

Background

4The plaintiff was engaged by his employer to work as a plasterer on a construction site.  The second defendant was the occupier and head builder.

5The construction site was a multi-apartment development. The plaintiff pleaded that he was required to transfer plasterboard sheets from one room to another by walking through an opening in an unfinished wall.

6The plaintiff pleaded that a crossbeam in the unfinished wall presented a hazard.  Further, the state of the premises was cluttered with building material and equipment.   There were wires running across the floor.

7The plaintiff pleaded that the failure to ensure the opening in the wall was free of wire and tripping hazards, or low hanging hazards such as the crossbeam, presented a heightened risk of injury to the plaintiff.

8The plaintiff is about 182cm tall.[1]  This meant that each time he had to navigate the gap, he had to duck his head. He was wearing a hard hat which increased his height by a small amount.

[1]Transcript (“T”) 125, Line (“L”) 14

9He removed a number of sheets of plasterboard through the gap with a colleague, Zahim, returning to the apartment each time through the same gap to get the next piece of plasterboard.

10Zahim was then called away to other tasks.  The plaintiff continued to remove plasterboard on his own.  On one of these occasions, as he was going through the gap, he struck his head forcefully on the overhead beam.  He felt an immediate pain in his neck and down his right arm.

11At the time he struck his head he was returning to the apartment to collect more plasterboard.  He was not carrying any plasterboard at the time.

12The plaintiff says that he was engaged in manual handling at the time he struck his head.

13The plaintiff says that, in assessing whether the task involved hazardous manual handling it is necessary to look at the entirety of the task.  The task involved not just picking up the plasterboard, measuring it up, cutting it, transferring it out of the apartment and affixing it to walls.  It also involved navigating through the gap in the wall on the “return journey” to pick up the next piece of plasterboard.

14The hazardous manual handling aspect of the task cannot be isolated from the return journey aspect of the task.

15The defendants did not dispute that carrying the plasterboard did, or at least might, constitute hazardous manual handling.  However the defendant says that, at the time the plaintiff was injured, he was not engaged in a hazardous manual handling task.  He was returning, empty-handed, through the gap to the apartment.

16He was not engaged in any manual handling. 

17The defendants submit that the task undertaken at the time of the incident must be assessed as to whether it involved manual handling that meets any of the criteria for hazardous manual handling. 

Was the task hazardous manual handling

18Hazardous manual handling is defined as:

(a)    manual handling having any of the following characteristics—

(i)repetitive or sustained application of force;

(ii)repetitive or sustained awkward posture;

(iii)repetitive or sustained movement;

(iv)application of high force being an activity involving a single or repetitive use of force that it would be reasonable to expect that a person in the workforce may have difficulty undertaking;

(v)exposure to sustained vibration;

(b)   manual handling of live persons or animals;

(c)   manual handling of unstable or unbalanced loads or loads that are difficult to grasp or hold.[2]

[2]Occupational Health and Safety Regulations 2007, r1.1.5

19In Lindsay-Field v Three Chimneys Farm Pty Ltd (“Lindsay-Field”),[3] the plaintiff was kicked in the head by a mare shortly after the mare had delivered a foal. The plaintiff had not had time to move the mare into the foaling yard which would have been usual practice.  After the mare foaled, the plaintiff walked the mare and the foal over to the foaling yard and tied up the mare using a piece of baling twine.

[3][2010] VSC 436 (‘Lindsay-Field’)

20J Forrest J found that the plaintiff was kicked by the mare when she was in the process of endeavouring to tie up the afterbirth.  She was in close proximity to the hindquarters of the mare, having walked down the nearside.

21His Honour found that at the time Mrs Lindsay-Field was kicked, she was not restraining or applying any physical force to the mare.  She was not engaged in any lifting, pushing or pulling.  She was not holding the mare. 

22His Honour did not accept that this activity was of a type intended to be covered by the Regulations. The objective of the Regulations was directed towards activities and particularly repetitive actions which require the application of force in the course of that particular activity, and thus result in a risk of injury.[4] 

[4]Ibid at page 29, paragraph [104]

23His Honour drew a distinction between the work Mrs Lindsay-Field was engaged in at the time, which was walking down the side and being behind an animal without holding, restraining or otherwise handling the animal, with the work of an abattoir worker or shearer who was involved in actual handling of an animal by pushing, restraining or holding.  His Honour said the latter  would clearly fall within the definition of hazardous manual handling.[5]

[5]Ibid at page 29, paragraph [105]

24On the analysis of J Forrest J, the aspects of the task undertaken must be divided up to delineate what is involved and what is not involved in hazardous manual handling.  Mrs Lindsay-Field would fit within the definition if she was injured in the course of handling the mare.  That might have included walking the mare to the foaling pen.  But walking down the side of the mare to her rump did not fall within the definition, even though she was undertaking this task in the course of a broader task that may have included elements of hazardous manual handling – assisting the mare after delivery of the foal.

25In Deal v Kodakkathanath (“Deal”),[6] Ms Deal, a teacher, was injured when she fell from a step ladder while removing a papier mache display from a class pin-board. At first instance, the trial judge found that the task was incapable of constituting hazardous manual handling within the meaning of the Regulations. The High Court held that the task of taking down the displays involved manual handling of an unstable or unbalanced load which was difficult to grasp or hold. The instability, imbalance or difficulty in grasping the load arguably caused Mrs Deal to miss her step on the ladder, leading to the fall and the subsequent injury.

[6](2016) 258 CLR 281

26The majority held that the Regulation must be confined to “risks of musculoskeletal disorder that are caused by something that is intrinsic to the manual handling task”.[7]

[7]Ibid at page 297, paragraph [40]

27On that analysis, the task met the definition of ‘hazardous manual handling’ because Ms Deal was handling an unbalanced, unstable load or a load that was difficult to grasp or hold, being the papier mache displays she was removing from the pinboard.  The relevant finding by the High Court in Deal was that Ms Deal was handling a load at the time of injury. The load was difficult to grasp, or unstable, which was sufficient to bring it within the Regulations.

28The Court said that an office worker who is repetitively replenishing the paper tray in a photocopier and slips on a greasy floor while holding a ream of paper, was unlikely to be engaging in hazardous manual handling.[8]  The handling task involved (holding the ream of paper) had nothing to do with the fall or the injury that resulted.

[8]Ibid at page 298, paragraph [46]

29In Warren Meade v Nillumbik Australia Pty Ltd,[9] a worker standing on the rim of a large waste bin, preparing himself to stamp down on the waste within the bin when the bin lid fell, causing him, in turn to fall, was not engaged in hazardous manual handling. His Honour Justice T Forrest held that the plaintiff’s activity, while perilous, was not occasioned while undertaking an activity “associated with a hazardous manual handling task”.  At its highest, the worker was positioning himself to undertake that task.  There was no application of force involved and he was not doing any task intrinsic to the application of any future force.[10]

[9][2018] VSC 328

[10]Ibid at paragraph [29]

30On these authorities, the words “associated with a hazardous manual handling task” mean that the manual handling must be intrinsic to the task being undertaken that gave rise to the injury.  In Deal, it was the fact that she was attempting to balance the items removed from the pinboard while descending the ladder that brought, or potentially brought the task within the Regulations. It was at least possible, on the Court’s analysis, that the manual handling task she was undertaking was what caused her to miss her step and fall.

31In contrast, neither Mrs Lindsay-Field or Mr Meade were handling anything at the time of their injuries.  While other aspects of their tasks that day may have fallen within the definition of hazardous manual handling, the Court in both instances separated out the elements of the task to identify whether the injury occurred in association with hazardous manual handling.  In Meade,  the application of force by stamping down the contents of the bin may have constituted hazardous manual handling, but Mr Meade was not engaged in that task at the time of his injury.  The fact that, in order to engage in that task he would necessarily have to position himself on the rim was not sufficient to bring the task within the definition.

32In Lindsay-Field, Mrs Lindsay-Field may have engaged in hazardous manual handling while leading the mare into the holding pen, and it was at least theoretically possible that tying up the afterbirth to the umbilical cord could be hazardous manual handling, although his Honour expressed doubt about that proposition.  However at the time of injury Mrs Linsday-Field was not handling the mare.  The possibility that she was between two tasks that might involve hazardous manual handling was insufficient to constitute hazardous manual handling.

33I am unable to accept, on the analysis provided by these authorities, that the fact Mr Haidari had to undertake the return trip through the gap in the wall, and hit his head on the crossbeam while doing so, was an intrinsic part of his manual handling task.  Carrying the plasterboard may have constituted a hazardous manual handling task, given the dimensions of the board which may have rendered it difficult to grasp or hold, or made it unstable or unbalanced.  However, returning empty-handed to pick up the next load of plasterboard would, at its highest, only amount to Mr Haidari preparing himself to undertake a hazardous manual handling task. 

34There was nothing intrinsic to the task of manual handling that caused the injury.  Rather, Mr Haidari was more like the office worker in the scenario given in Deal, who slips on the greasy floor while carrying a ream of paper.  However in Mr Haidari’s case he was not carrying even the theoretical “ream of paper” at the time of injury. 

35Accordingly, I consider that the proposed amendment has no real prospect of success and the application for leave to amend the pleading is dismissed.