He v Prime Assets Pty Ltd (Ruling)

[2022] VCC 1344

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case CI-21-00764

Jie Ying He	Plaintiff
v
Prime Assets Pty Ltd	Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2022
DATE OF RULING:	22 August 2022
CASE MAY BE CITED AS:	He v Prime Assets Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1344

RULING
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Subject:Hazardous Manual Handling  

Catchwords:   Whether application of regulations properly to be left to jury on the plaintiff’s alternative and unexplained basis for her actions in the event jury rejects the plaintiff’s evidence that she was instructed to engage in a hazardous manual task by her supervisor.

Legislation Cited:                Occupational Health & Safety Regulations 2017

Cases Cited:Deal v Father Pius Kodakkathanath (2016) 258 CLR 281; SMYBB Pty Ltd (t/as Best Bottlers Pty Ltd) v Young [2022] VSCA 115; Young v SMYBB Pty Ltd (t/as Best Bottlers Pty Ltd) [2021] VSC 445.

Ruling:Regulations excluded from being put to jury on an alternative and unexplained and speculative evidentiary basis.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Stanley with  Ms A Smietanka	Zaparas Lawyers
For the Defendant	Mr A Moulds QC with Mr L Howe	Wisewould Mahony

HIS HONOUR:

1.On 16 August 2022 during the conduct of the trial of this action by a jury of six, and after the plaintiff’s evidence and cross examination had concluded, a question was raised in the absence of the jury by leading counsel for the plaintiff, Mr Stanley. He sought a direction that the application of the regulations governing hazardous manual handling in the workplace should be permitted to be put before the jury on a basis that Mr. Stanley described as a possible alternative factual claim in negligence against the defendant to explain the plaintiff’s fall from a chair whilst attempting to clean the top of a wardrobe on 7 January 2018 and whilst employed by the defendant as a room attendant at the Mercure Hotel.

2.After hearing submissions by Mr. Stanley and by Mr. Moulds QC on behalf of the defendant in opposition to the application, I rejected the plaintiff’s application. I ruled that although whether a breach of the regulations was open to be put to the jury on the basis of the plaintiff’s evidence that she was instructed by her supervisor to clean the top of the wardrobe with a wet rag, it was not open to put to the jury the question of if there was a breach of regulations based on an alternative account of the plaintiff’s evidence, the effect of which appeared to be that the plaintiff may have misunderstood the instruction given to her by her supervisor or that having correctly understood what she had been told to do, she did something different from the task that her employer required her to perform which was to use a feather duster to dust the top edge of the wardrobe in room 1048.

3.I ruled that I would permit Mr. Stanley to put to the jury in final address for a determination by them as a question of fact, an argument that if they rejected the plaintiff’s evidence that she was told by her supervisor to clean the top of the wardrobe in room 1048 with a wet rag but that she did so, for example, on a misunderstanding of what she had been told and used a chair from which she fell, a jury could consider the question whether a duty of care resided with the defendant to guard against such a risk and if the same was foreseeable in the sense that it was not fanciful or farfetched so that the defendant might be thought required to have made provision to guard against the same, for example, by prohibiting the standing on furniture by cleaners for any cleaning task. However, I ruled that this could only put to the jury on the basis of a common law obligation of a duty of care on the part of the employer to reduce the risk of injury in the workplace and not through the prism of the application of hazardous manual handling regulations.

4.I told the parties that in order to not delay the trial of the matter I would issue a written ruling elaborating on the brief oral decision I expressed in Court.

5.Some exposition of the facts is required. The plaintiff was a cleaner employed at a Mercure badged hotel operated by the defendant. On 7 January 2018 she says she was engaged in cleaning rooms. It is common ground that the plaintiff along with other cleaners or room attendants had been instructed to dust the top edge of wardrobes and in order to facilitate this task they were provided with an extendable feather duster.

6.The plaintiff told the jury that one of her cleaning tasks was to dust the top edge of wardrobes. She said she had used the feather duster to undertake this task prior to the date of injury. She said she was able to perform this task from ground level. She said she had not encountered any difficulty in dusting the edge of wardrobes and in fact she said she had dusted the top edge of the wardrobe in room 1048 the very morning of her injury.

7.The plaintiff told the jury that she was engaged in the cleaning of another room when she was approached in an aggressive manner by her supervisor who proceeded to accuse her of not having dusted the wardrobe in room 1048 and not having cleaned the bathroom floor and shower screen of that room well enough.

8.The plaintiff’s evidence to the jury was that she told the supervisor that she had dusted the wardrobe with the feather duster. Her supervisor retorted by telling the plaintiff that she had not, and that she had run her finger over the edge of the wardrobe, and found dust. It was the common evidence of the plaintiff and of the supervisor who testified on behalf of the defendant that the plaintiff was told to perfect these tasks. There the commonality of evidence ends.

9.The plaintiff said the supervisor instructed her to return to the room and to use a wet rag to clean the top of the wardrobe. The supervisor expressly denied that she gave the plaintiff such a direction but only that she told her to go back to the room and to dust the top edge with the duster and to attend to the other identified cleaning deficiencies of the bathroom floor and the shower screen.

10.The plaintiff told the jury that in order to perform the direction she had been given by her supervisor, and whilst alone in room 1048, she got a piece of wet rag and used a plastic moulded chair that was provided as part of the furniture of the room to stand on so as to reach the top flat surface of the 2 metre high wardrobe.  Whilst doing so the chair became unstable and the plaintiff fell and injured her shoulder and neck. She said her concertation was distracted by the upset she was suffering as a result of the criticisms levelled at her cleaning by the supervisor. 

11.The account given by the plaintiff to the jury, and in fact, the only account she relied on before the jury, would invite a consideration by a jury properly instructed not only of negligence at law but a breach of the manual handling regulations contained in the Occupational Health & Safety Regulations 2017. The evidentiary account provided by the plaintiff to the jury was that of the provision to her of an instruction by her employer through the auspices of the supervisor to do that which potentially exposed her to a risk of musculoskeletal injury. Furthermore, the plaintiff was not provided a safe method to reach to clean the top of the wardrobe with a wet rag and neither had the defendant identified such a task as a hazardous manual handling task or provided any means to enable the plaintiff to do such a task safely or by minimizing the risk of injury. Consequently, if the jury accepted the plaintiff’s evidence of what she was told by her supervisor, they might conclude that the plaintiff was left to improvise as best she could by utilising a chair on which to stand. So much is straightforward.

12.However, Mr. Stanley argued that in the event the jury did not accept the plaintiff’s account of the conversation with her supervisor but that the jury preferred  the evidence of the supervisor that she told the plaintiff to go back and dust the top edge of the wardrobe but that the plaintiff did otherwise and undertook a different task of cleaning as opposed to the task of dusting, nonetheless, on this alternative or “fallback position”, the jury should also be allowed to consider the question of a breach by the defendant of the hazardous manual handling regulations. 

13.In support of his submission Mr. Stanley sought to gain support from the decision in Deal v Father Pius Kodakkathanath[1] (‘Deal’). There the Court of Appeal had addressed the 2007 Occupational Health and Safety Regulations which for the purposes of this ruling are materially the same as the 2017 regulations. By a majority the Court of Appeal held that the phrase “associated with” in the context in which it appeared in reg 3.1.2 requires a causal connection with the generic nature of the particular hazardous manual handling task as opposed to a causal connection with the several ways in which a generic task might possibly be performed.

[1] (2016) 258 CLR 281.

14.In Deal there were several issues that were not in dispute. These included that the injury suffered by the appellant was an injury that arose in whole or in part from manual handling in the workplace (other than an injury, illness or disease that was caused by crushing, entrapment or cut resulting primarily from the mechanical operation of plant), and was, therefore, a “musculoskeletal disorder” within the meaning of reg 1.1.5. It was also not in dispute that the task comprised of removing the displays from the pin-board with the use of the stepladder by the appellant was an activity which required the use of force exerted by a person to lift, lower, push, pull, carry or otherwise move, hold or restrain any object, and was, therefore, a “manual handling” task within the meaning of reg 1.1.5. It was also not in dispute, that the task of removing the displays from the pin-board with the use of the stepladder involved the manual handling of unstable or unbalanced loads, that were difficult to grasp or hold, and that it was, therefore, a “hazardous manual handling” task within the meaning of the regulation.

15.The High Court, on appeal from the Court of Appeal, identified the matters that required determination, the first of which was whether the risk of a musculoskeletal disorder of the kind suffered by the appellant can properly be conceived of as a risk “associated with” the hazardous manual handling tasks comprised of removing the displays from the pin board with the use of the stepladder. If so, the second issue was whether a jury could have inferred, as a matter of objective fact, that it was reasonably practicable to identify the risk and take steps to eliminate or reduce it as required by regulations.

16.The High Court said that a number of considerations point in favour of the conclusion that “associated with” is used in the sense of combined in terms of classification rather than combined in terms of circumstances, with the result that the risks of musculoskeletal disorder to which the regulation is directed are confined to risks of musculoskeletal disorder that arise from, and thus are caused by, something which is intrinsic to the hazardous manual handling task.

17.The Court held that the natural and ordinary implication of the text of the regulation is that it is confined to risks which arise from or, in other words, are caused by one or more of those hazardous manual handling task force factors.

18.I am satisfied that Deal is of little utility in the circumstances of the proceeding. In Deal the question that was taken away by the trial judge from the jury and which the High Court determined ought to have stayed with the jury was whether it was reasonably practicable for the respondent to identify the task of removing displays from the pin board with a stepladder from which the appellant was engaged when she fell and was injured as involving hazardous manual handling and that being an objective question of fact, it was a matter for the jury to decide. In the trial of this proceeding, it is no part of the plaintiff’s argument that she was engaged in the task of dusting the edge of a wardrobe with a feather duster when she fell from a chair. It was not part of the plaintiff’s argument that the defendant was required to identify the task of dusting the top edge of the wardrobe for dust with a feather duster as involving hazardous manual handling. The plaintiff was not injured performing that task. Putting aside the alleged direction given by the plaintiff’s supervisor, it was no part of the plaintiff’s evidence before the jury that the task of dusting the top edge of the wardrobe involved anything other than the use of the feather duster to clean the top edge of the wardrobe lightly and that this was something which she could easily attend to and had done so before including on the morning of 7 January 2018 and from ground level. The plaintiff’s evidence was that she had performed this task since the requirement to do was introduced. The plaintiff said she did so and without incident on 7 January 2018. This would have remained the modus operandi until, according to the plaintiff, her supervisor directed her to engage in a different authorised task to clean the flat top surface of the wardrobe with a wet rag.

19.I do not accept the submission made by Mr. Stanley that this is an example where an authorised task i.e. cleaning the top edge of a wardrobe by the application of an extendable feather duster along the edge of the same from ground level should be regarded as a generic task that is capable of being carried out in more than one way, such as by using a wet rag and chair although not to dust the top edge of the wardrobe, but to clean the top surface of it. If this was so, then the task that the employer required the cleaner to perform, which was dusting the top edge of wardrobe would not need to be performed but instead another task the employer did not request and yet was performed would impose  the obligation on the employee to identify and assess the risk of a musculoskeletal disorder in the undertaking of an unauthorised task. Of course, as reinforced in Deal, the law recognises an employer’s responsibility so far as is reasonably practicable is to identify the risks potentially associated with each way a task may be undertaken, and so far, as is reasonably practicable, to guard against those risks by implementing systems calculated to constrain the employee to carrying out the task in the safest way. However, on the basis of jury preferring the supervisor’s evidence, the plaintiff was not injured in the course of dusting the top edge of the wardrobe in one or other possible ways but she was injured in performing a different task to dusting which was cleaning the flat surface of the top of the wardrobe with a wet rag. It was not an associated task to dusting and it was not an authorised task.

20.On the alterative evidentiary analysis that Mr Stanley advanced, I do not accept that the defendant employer was charged with an obligation to identify the task of dusting the edge of the wardrobe with a feather duster as a potentially hazardous manual handling task giving rise to a risk of a musculoskeletal disorder because the plaintiff did a different task the doing of which carried with it a risk of musculoskeletal damage.

21.Deal has been considered in SMYBB Pty Ltd (t/as Best Bottlers Pty Ltd) v Young.[2] The reasoning of the Court of Appeal reinforces my decision that Deal does not apply in this case. The Court of Appeal identified the following passage from the reasons of decision of the trial judge in which her Honour had said:

“Where a personal right to damages for injury for breach of a regulation exists, as here, damages are recoverable if breach of the relevant regulation [is] demonstrated and the injury that occurs is one within the definition of a musculoskeletal disorder. In a claim of this nature, it is not a necessary element of the cause of action that a plaintiff also demonstrate that, had the employer complied with its obligation, some other system of work or equipment would have been identified and the risk of injury lessened.”[3]

[2] [2022] VSCA 115 (‘SMYBB’).

[3]        Young v SMYBB Pty Ltd (t/as Best Bottlers Pty Ltd) [2021] VSC 445, [88].

22.Before the Court of Appeal, the respondent accepted that the trial judge had erred on this aspect. As the Court of Appeal put it, the respondent “accepts that it is necessary for him to establish that the breach of statutory duty upon which he relies caused the injury, and that this is not demonstrated by identifying a breach of the regulations and satisfying the definition of ‘musculoskeletal disorder’, without more.”[4]

[4]        SMYBB [2022] VSCA 115, [20].

23.Mr. Stanley’s application is rejected. The regulations may not be put to the jury on an alternative basis in the event they reject the plaintiff’s evidence that she was directed by her supervisor to perform cleaning the top of the wardrobe with a wet rag.

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