Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No 2)

[2012] VSC 562

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 09222

LINDA HUDSPETH	Plaintiff
v
SCHOLASTIC CLEANING AND CONSULTANCY SERVICES PTY LTD & ORS	Defendants

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 NOVEMBER 2012
DATE OF RULING:	20 NOVEMBER 2012
CASE MAY BE CITED AS:	HUDSPETH v SCHOLASTIC CLEANING AND CONSULTANCY SERVICES PTY LTD & ORS (NO 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 562

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Tort – Claim for damages for injury in course of employment – Claim in negligence and breach of statutory duty – Construction of Occupational Health and Safety (Manual Handling) Regulations 1999.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards SC with Mr A Ingram	Clark, Toop & Taylor
For the First Defendant	Mr R Middleton SC with Mr S Martin	Minter Ellison
For the Second Defendant	Mr T Casey QC with Mr D Masel SC	Wotton & Kearney Lawyers
For the Third Defendant	Mr C Madder	Lander & Rogers

HIS HONOUR:

1. In this proceeding the plaintiff claims damages for personal injury arising out of her employment by the first defendant, Scholastic Cleaning, at the time of an incident in April 2005. The plaintiff’s claim is advanced in negligence and in breach of statutory duty. The claim for breach of statutory duty is based on alleged breaches by Scholastic Cleaning of regs 12, 13, 14 and 15 of the Occupational Health and Safety (Manual Handling) Regulations 1999.

1. The plaintiff claims to have suffered a musculoskeletal disorder, as that term is defined in r 5 of the Regulations, aggravation of her lumbar spine and a hip injury, in the course of her employment.  Scholastic Cleaning contends that the particular aspect of the plaintiff’s employment she was performing when she sustained her injury is not a matter of manual handling, as defined by the Regulations.

1. It is convenient to begin with the definitions in the Regulations of ’Manual handling’ which means any activity requiring the use of force exerted by a person to lift, push, pull, carry or otherwise move, hold or restrain any object. As I will explain, it is the word activity that is central to the issue between the plaintiff and the first defendant. ‘Activity’, in its common usage, means the state of action; doing, or can refer to an exercise of energy or force; an active movement or operation. The nature of the activity being engaged in by the plaintiff lies at the crux of this application.

1. When the application was initially made prior to the empanelment of a jury it was agreed that it was preferable that I hear the plaintiff’s evidence about how she was injured before ruling upon the application. That has now occurred. The activity that the court is concerned with is that of mopping a floor.

1. It is plain in my view that the act of mopping a floor involves manual handling. As an activity, it requires a person to use force to manipulate the mop, which is the ‘object’ in the statutory definition. That manipulation can, and usually does, involve lifting, pushing, pulling, carrying, moving or holding the mop, and the evidence of the plaintiff was that she manipulated the mop in this fashion. But Scholastic Cleaning contended that when the plaintiff stepped up to the urinal to put the mop under the tap she had ceased the activity of mopping and was no longer engaged in manual handling.

1. Counsel submitted that the plaintiff slipped when stepping up rather than when she was engaged in the activity of mopping. A distinction was drawn between manipulating the mop, with the mop head on the floor, and washing out the mop head, which was evident in the approach taken by counsel during cross-examination. The distinction is as artificial dissection of the activity. A mop, as a tool for cleaning floors, is usually not used on its own. It can be, but is normally used as it was in this case, with a source of water, commonly a bucket to rinse out the mop and with a mechanism to rid the mop of excess water before the person resumes wiping the floor. That was so in this case. However, the excessive amount of soap made the use of the rollers in the bucket ineffectual. That is why the plaintiff was stepping onto the urinal to use the tap to wash out the mop. The evidence was that she repeated the process of washing out the mop under the tap on about 30 or 40 occasions. Washing out the mop was an essential part of the activity of mopping and, that it was done in this way, shows that stepping up to the tap at the urinal to do so was part of the activity of mopping.

1. The activity of mopping is manual handling as defined by the Regulations. Concentrating solely on the task of moving the mop to the tap, it might still be said that that limited activity involves lifting or carrying or moving or holding an object, namely the mop, and for that reason alone is manual handling. It is inappropriate to break up the activity into constituent parts and content that part of the task involves manual handling and part of it does not.

1. The circumstances in this proceeding can be contrasted with those before the court in Lindsay-Field v Three Chimneys Farm Pty Ltd.[1] That case involved a question of whether the plaintiff, about to engage in the activity of tying up the afterbirth following the birth of a foal, was engaged in an activity that fell within the definition of manual handling. The plaintiff was injured when kicked by the horse. Forrest J was not satisfied that any true application of force was likely to be involved in this activity and that it did not fall within the definition of manual handling. In looking at the relevant activity, Forrest J assumed that her tasks are to be looked at broadly. That is, I think, the correct approach.[2]

   [1][2010] VSC 436 (29 September 2010).

   [2]See also Surmon v Herald & Weekly Times (ruling no 2) [2011] VSC 607 (17 November 2011) at [8].

1. Concluding that the type of activity that he was concerned with in that case was not of a type intended to be covered by the Regulations, Forrest J observed:

The objective of the Regulations, I think, is directed towards activities (and, particularly repetitive actions) which require the application of force in the course of the particular activity (be it lifting, pushing, pulling or holding) and thus result in a risk of injury. 

1. The objective of the Regulations, as stated in r 1, is to reduce the number and severity of musculo-skeletal disorders associated with tasks involving manual handling. The mechanism for sustaining a musculo-skeletal disorder is not confined by the Regulations, which refer to an injury, illness or disease that arises in whole or in part from manual handling in the workplace. Thus, in my view, it matters not that the actual mechanism, by which injury was sustained during the course of manual handling of a manual handling activity, was a slip. This is evident from the language of regulations.[3]

   [3]See, for example, r 14(2) and r 15(2).

1. In my view it is open to the jury to conclude that the risk of injury was occasioned by the stresses or forces, a wide concept, that were involved in the activity of mopping - in the handling of a particular object, the mop - in a system of work for cleaning the floor that involved such manual handling.

1. In the result I am not satisfied that the Regulations are not engaged and I will leave the question of whether there was breach of statutory duty on the part of Scholastic Cleaning to the jury.

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