John Mark Schembri v State of Victoria (Department of Human Services Victoria)
[2020] VSCA 145
•4 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0100
| JOHN MARK SCHEMBRI | Applicant |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES VICTORIA) (ABN 93 785 850 801) | Respondent |
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| JUDGES: | BEACH, HARGRAVE and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 April 2020 |
| DATE OF JUDGMENT: | 4 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 145 |
| JUDGMENT APPEALED FROM: | Schembri v State of Victoria (Department of Human Services Victoria) (ABN 93 785 850 801) (Supreme Court of Victoria, Digby J, 19 August 2019) |
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TORTS – Negligence – Workplace injury – Injury to left knee – Jury verdict – No negligence by respondent causing injury, loss and damage to applicant – Whether jury verdict against weight of evidence – Open to jury to find no negligence; alternatively, any negligence not a cause of injury – Leave to appeal refused.
ACCIDENT COMPENSATION – Statutory duty – Whether breach of statutory duty by respondent causing injury, loss and damage to applicant – Open to jury to find no breach of statutory duty; alternatively, any breach of statutory duty not a cause of injury – Leave to appeal refused – Occupational Health and Safety Regulations 2007, regs 2.1.2, 3.1.1, 3.1.2, 3.1.3.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr B E Walters QC with Mr K D Mueller | Saines Lucas Solicitors |
| For the Respondent | Mr S A O'Meara QC with Mr S E Gladman | Injury Disputes Practice Lawyers |
BEACH JA
HARGRAVE JA
T FORREST JA:
Introduction
The applicant was a youth justice worker at the Malmsbury Youth Justice Centre in central Victoria (‘Malmsbury’). On 21 May 2013 in the Ulabara Unit of Malmsbury (‘Ulabara’), the officer in charge, Tenille Thomas, directed the applicant to escort a client,[1] TVD, to his room. This was in response to a ‘Code Black’ emergency in Ulabara. The applicant alleged that while he and a co-worker, Jonathan Donald, attempted to comply with Ms Thomas’ direction, TVD kicked out and injured the applicant’s left knee, assertedly rupturing the applicant’s anterior cruciate ligament (‘ACL’). The applicant sued the respondent — which conducts Malmsbury and employed Ms Thomas — for damages, alleging liability both in negligence and for breach of statutory duty.
[1]Inmates at this youth custodial facility are called ‘clients’.
After a 15-day trial, the jury found for the respondent on the question of liability. The trial judge put three questions to the jury:
·Question 1: Was there negligence on the part of the defendant, its servants or agents that was a cause of injury, loss or damage to the plaintiff? (‘Q1’)
Answer: No.
·Question 2: Was there a breach of statutory duty by the defendant, its servants or agents that was a cause of injury, loss or damage to the plaintiff? (‘Q2’)
Answer: No.
·The third question, concerning damages, obviously remained unanswered.
The judge gave judgment for the respondent and ordered that the applicant pay the respondent’s costs.
The applicant now seeks leave to appeal against the judgment. The grounds of appeal are:
1.The verdict of the jury that there was no negligence by the Respondent, its servants or agents that was a cause of injury, loss and damage to the applicant/appellant was against the evidence and the weight of the evidence.
2.The verdict of the jury that there was no breach of statutory duty by the Respondent, its servants or agents that was a cause of injury, loss and damage to the applicant/appellant was against the evidence and the weight of the evidence.
It will be immediately apparent that the applicant takes no issue with his Honour’s comprehensive charge to the jury, nor does he take issue with any rulings made during the running of the trial. The grounds of appeal simply alleged that the jury’s answers to Q1 and Q2 were against the weight of the evidence.
Legal principles
In Calin v Greater Union Organisation Pty Ltd,[2] Mason CJ, Deane, Toohey and McHugh JJ said:
The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.[3]
[2]Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 (‘Calin’).
[3]Ibid 41.
Calin was a case which was concerned with a jury verdict on liability only and the wording of the test seems to have derived from one of several authorities considered by their Honours. The relevant test, as stated in Metropolitan Railway Co. v Wright,[4] was ‘whether the evidence so preponderates against the verdict as to shew that it was unreasonable and unjust’.[5]
[4]Metropolitan Railway Co v Wright (1886) 11 App Cas 152.
[5]Ibid 155.
Q1 and Q2 each incorporated two areas of contention between the parties. Negligence and causation (Q1), and statutory breach and causation (Q2). In this connection, a jury verdict is inscrutable. It cannot be known what view of the facts was taken by the jury, or by individual members of the jury. All that can be inferred from the jury’s answers is that:
(a) insofar as Q1 is concerned, the jury were not satisfied either of negligence or causation; and
(b) insofar as Q2 is concerned, the jury were not satisfied either of the statutory breach or causation.
Beyond that, the reasoning paths taken by the jury will forever be unknown.
An appellate court must proceed on the basis that the jury took the view of the evidence most favourable to the respondent.[6] The court should also be mindful of the advantages enjoyed by the jury in evaluating the evidence over the course of the trial, and in assessing the reliability and credibility of witnesses.[7]
[6]Australian Iron & Steel Ltd v Greenwood (1962) 107 CLR 308, 311; Fox v Percy (2003) 214 CLR 118, 141 [71]; Fassbender v Bohlmann (t/as Seymour Freight Lines & Caravans) [2010] VSCA 204, [19]; Capers v Victoria [2011] VSCA 97, [35].
[7]Calan (1991) 173 CLR 33, 42.
It follows that before the applicant can succeed, he must establish that the totality of the evidence demonstrates that the jury verdicts were unreasonable and unjust. Put another way, the applicant must demonstrate that no jury, acting reasonably, could have reached the impugned verdicts on the evidence most favourable to the respondent.[8]
The applicant’s case
[8]Ibid. See also John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657.
Ground 1 — Negligence
Although the applicant pleaded a grand total of 46 particulars of negligence, the allegations of negligence largely distilled to the following:
·The failure by the respondent, its servants or agents to supply Ms Thomas with relevant handover briefings, incident reports, Daily Service Advices, and Client Service Plans and recommendations concerning TVD and his violent propensities.
·The failure by the respondent, its servants or agents to supply the applicant with the information, reports, briefings, plans and recommendations referred to in subparagraph (a) above.
·The failure to implement a robust behaviour management plan for TVD after an incident on 18 April 2013.
·The failure to implement or investigate additional training in managing for youth justice staff as recommended in the incident report of 18 April 2013.
·The failure to ensure the Daily Safety Advice was updated for TVD.
·Ms Thomas’ instruction to the applicant to take TVD back to his room, which, in all the circumstances, was unreasonable.
As the applicant’s case developed at trial, the central allegation of negligence concerned Ms Thomas’ direction to the applicant to escort TVD to his room. If the applicant could establish that this direction breached the duty owed by Ms Thomas or the respondent to the applicant to take reasonable care for his safety and welfare in the workplace, then a finding of negligence was inevitable. The other allegations of negligence involved various alleged procedural failures by the respondent. These failures, if proved, informed the question of the reasonableness of the direction. The question of causation, however, remained. Had Ms Thomas been aware of the handover briefings, incident reports, Daily Services Advices, and Client Service Plans and recommendations, would she have acted differently?
Ground 2 — Statutory breach
The applicant alleged that various breaches of the OccupationalHealth and Safety Regulations 2007 (‘OHS Regulations’) were a cause of his knee injury. He alleged that the respondent, through Ms Thomas, required him to engage in ‘hazardous manual handling’ as defined in the OHS Regulations. This was not disputed at trial. The applicant then alleged that the respondent had failed to comply with regs 2.1.2, 3.1.1, 3.1.2 and 3.1.3. We shall set out these regulations later in these reasons. In short, the applicant alleged that the respondent failed to control the hazardous manual handling risk with suitable information, instruction and training; further, that the respondent failed to ensure, so far as was reasonably practicable, that risks arising from the relevant hazardous task were eliminated or reduced.
The respondent’s case
The respondent denied negligence and contended that Ms Thomas’ direction was, in all the circumstances, a reasonable response to a volatile and potentially dangerous situation. The respondent contended that the applicant had failed to demonstrate that Ms Thomas’ direction was unreasonable, and there was no causal significance to the more technical allegations of negligence to do with documentary failings, as staff all knew of TVD’s violent propensities at any event. The defence to the allegations of statutory breach was similar — there was no causal significance to statutory breaches (if found).
It is necessary to set out a brief summary of the evidence at trial. As the respondent did not admit that the knee injury sustained by the applicant was, in fact, occasioned in the incident of 21 May 2013, it is necessary to set out the medical evidence in addition to evidence that directly concerned the events at Malmsbury.
The applicant’s evidence at trial
The applicant relied on the facts and circumstances below. There was very little objective factual dispute between the parties — this was conceded by the respondent’s senior counsel in his final address.
Background
The applicant injured his left knee playing football when he was about 14 years old and had some cartilage removed. In 2007, he commenced employment as a youth justice worker with Malmsbury.
Ulabara at Malmsbury was a lockdown unit where clients could be locked in their rooms.
The training the applicant undertook in respect of his duties included:
(c) a two-week induction course prior to starting work which involved a lot of policy and procedure training and prevention of violence (‘POV’) training, which involved de-escalation techniques, managing difficult behaviour and how to restrain clients;
(d) a Certificate IV in Juvenile Justice;
(e) about six sessions of additional POV training throughout the six-year period he worked there;
(f) ‘de-escalation’ strategies and the policy for dealing with difficult behaviours; and
(g) Code Black procedures, which included clearing an area.
The applicant had many dealings with TVD prior to the ‘Ulabara incident’, referred to below. At trial, he described TVD’s behaviour as disruptive, abusive and unacceptable, and outlined some of the behaviours TVD displayed, including that ‘he’d threaten to kill you, threaten to rape your children.’ TVD displayed extreme violent and sexualised behaviour. The applicant said in evidence that the best approach with TVD was de-escalation because he was not the type of person who liked being told what to do.
The applicant and other staff had regularly escorted TVD to his room, appointments and medical reviews.
The Ulabara incident
On 21 May 2013, the applicant was working in Ulabara. Prior to that shift, he had not received any instructions in relation to TVD’s recent behaviours.
At around dinnertime, a Code Black was called. WE, another client, was outside in an enclosed courtyard attempting to smash the windows of Ulabara with a volleyball post. The applicant left the kitchen area where he was setting up for dinner and started assisting in escorting clients back to their rooms. The only two clients left were TVD and WE. TVD was inside Ulabara and WE was outside. Although WE was damaging property, he was not posing a risk to the staff or clients, because the windows were well fortified.
The applicant stated that TVD was silent with a glazed look in his eyes, sitting on a table with his back against a wall. The applicant described TVD in evidence as looking like a ‘stunned mullet’. Ms Thomas asked TVD to go back to his room but he did not respond. Ms Thomas then asked the applicant to take TVD back to his room. The applicant asked Ms Thomas three times if he could instead sit with TVD because he knew that TVD was much more responsive when rapport was established rather than being forced. The applicant’s intention was to sit directly next to TVD and talk to him. He said in evidence that if TVD got up, he (the applicant) would probably have tripped him over, and other staff would have helped restrain him and safely take him back to his room.
Ms Thomas denied the applicant’s requests and asked him to escort TVD to his room. The applicant then asked a co-worker, Mr Donald, to assist him. They started escorting TVD back to his room, with each of them holding one of his arms.
The applicant stated that prior to escorting TVD, he did not consider that TVD posed any risk of danger to himself, staff or others. In the process of taking TVD to his room, TVD lashed out. The applicant and Mr Donald tried to take him to the ground and in the process, the applicant was kicked in the left knee. Brendan Bowe, a supervisor at Malmsbury, came to their assistance.
Other incidents
A week later, while supervising a soccer game on 28 May 2013, the applicant was hit in the left knee by a kicked soccer ball (‘the soccer incident’). It irritated his left knee, but he was able to continue performing his work duties.
On 21 June 2013, the applicant slipped on wet grass and experienced pain in his left knee (‘the slipping incident’). The applicant said that the first time he mentioned his left knee to his doctor was on 21 June 2013.
The applicant also gave evidence regarding treatment of his left knee, including:
(h) attendance at his general practitioner on 5 June 2013, 19 June 2013 and 21 June 2013; and
(i) surgery for a ruptured ACL on 14 November 2013.
The applicant did not return to work at Malmsbury following the surgery.
Other witnesses for the applicant
Jonathan Donald
Mr Donald gave evidence at trial that he assisted the applicant in escorting TVD to his room on 21 May 2013. At the time of trial, Mr Donald was employed as a Safety and Emergency Response Team (‘SERT’) manager at Malmsbury.
In relation to process and procedure, Mr Donald gave evidence as follows:
·He recalled undergoing POV training and became a POV trainer himself. He was familiar with de-escalation strategies and response measures, including when the use of force is required.
·The SERT was introduced at Malmsbury in 2014.
·A Code Black does not mean that all clients should be returned to their rooms.
Mr Donald met the applicant in 2011 or 2012. He said that the applicant had been doing ‘a fair bit of concreting’ and ran a small farm, in addition to his work at Malmsbury.
Mr Donald could not recall the incident on 21 May 2013. At trial, he said that WE’s behaviour was the type of behaviour that could incite another inmate. Following the Ulabara incident, he recalled that the applicant walked with a bit of a limp and found it a lot harder to move around.
Mr Donald said that he had many dealings with TVD and described him as a ‘troubled, problematic young man’, whose behaviour was violent, erratic and unexpected. He agreed that TVD was more responsive when rapport was established with him.
Brendan Bowe
At the time of the Ulabara incident and trial, Mr Bowe was employed as a supervisor at Malmsbury.
Mr Bowe could ‘recall a scuffle down a hallway’ in Ulabara on 21 May 2013, and could remember that the applicant and another staff member were being verbally abused by TVD, which resulted in a ‘full fight’. Mr Bowe said he provided immediate assistance to his colleagues.
He had several confrontations with TVD in 2013 and recalled TVD head-butting him once, which resulted in him suffering a split nose. TVD had to be restrained and put in his room on several occasions. His behaviour was unpredictable, volatile and violent.
Dr Bradley Wyer
Dr Wyer was the applicant’s treating general practitioner at Springs Medical in Daylesford. He gave evidence at trial concerning the applicant’s medical history, including his knee injury as a 14 year old, vertigo, left knee injury and post-injury treatment.
Dr Wyer said that the applicant’s consultation on 5 June 2013 was the first time he had seen the applicant. The applicant’s concern at that appointment was in relation to his vertigo.
On 19 June 2013, Dr Wyer consulted the applicant on issues with his middle ear and a recommendation was made for the applicant to see a specialist. During that consultation, the applicant mentioned he was having issues at Malmsbury, including that he was stressed, getting abused, and feeling unsupported and unsure whether he would stay there.
The applicant was seen by another doctor on 21 June 2013. The doctor recorded the following in the notes:
(j) ‘three or four weeks ago, was kneed in the left side of the knee, the lateral side … mild discomfort at the time, only mild discomfort since’;
(k) ‘today he slipped on wet grass at work, apparently midday. Left knee twisted awkwardly but no fall’; and
(l) his history of a left knee injury when he was 14 years of age.
Mr John O’Brien
Mr O’Brien has been an orthopaedic surgeon for 40 years. He was engaged on behalf of the applicant’s solicitors for the purposes of undertaking a medico legal examination of the applicant. Following that examination, he prepared a medical report dated 3 October 2018.
As to causation of the condition of the applicant’s left knee, Mr O’Brien was of the opinion that the Ulabara incident was the cause of the applicant’s significant knee symptoms, including the ruptured ACL:
·‘The severity of the trauma [from the Ulabara incident] and the subsequent symptoms would indicate that there was severe injury and [he] would, therefore, make the assumption that that was the injury that precipitated the cruciate injury, as well as aggravation to any pre-existing pathology within the knee.’
·‘[In relation to the soccer incident,] the soccer ball would seem to be not of a mechanism that one could suggest caused the cruciate ligament injury … the [slipping incident] would suggest that the knee was partially unstable and that contributed to [him] … probably slipping on an uneven surface.’
·‘The slipping process, again, does not appear to have been of such violence as to have caused a major knee pathology.’
·‘It appeared from what the patient described that the severity of the injury … in June of 2013, was not of such that it would have created a cruciate injury, a cruciate rupture, here.’
Dr Anthony Zalewski
Dr Zalewski was a security consultant who was engaged by the applicant’s lawyers for the purposes of preparing a report. That report was dated 25 September 2018. In summary, his report concluded that ‘the defendant ought to have known the risk of harm including aggression and violence by clients to those present at the centre including staff.’
Dr Zalewski is a director of a company he founded called Global Public Safety, which assists its clients to minimise security and safety risks in their businesses. He had prepared more than 500 expert reports like the one he prepared in this case. He has also been engaged by the Department of Human Services, Juvenile Justice, to develop instructor and participant training materials as to the processes involved in undertaking risk assessments in order to minimise the risk of harm.
Dr Zalewski said that the materials provided to him by the applicant’s solicitors for the purposes of the report ‘do not disclose a formal process for risk assessment and treatment either before or after the incident in 2013 or leading from the incident in minimising the risk of future similar incidents.’ Each client should be assessed in terms of unsafe behaviours. This approach minimises risk of harm to staff and other clients. Dr Zalewski opined that it was highly likely that the situation with TVD would have been avoided if the staff at Malmsbury worked in a formalised system:
[TVD] was known for his aggressive and violent behaviour external to Malmsbury and also to the clients and staff within Malmsbury. Although violence was not a daily occurrence involving him, it was behaviour well known amongst staff, including the plaintiff. In the circumstances, I would expect a specific set of strategies to address this risk. No information has been provided at this time to disclose this approach.
Dr Zalewski gave evidence that the Client Service Plan relating to TVD dated 2 April 2013 should have been available to the supervisors at the time and brought to their attention. Failure to do so increased the risk of harm to staff.
Dr Zalewski said that to de-escalate a situation, it is good practice to use a staff member who has good rapport with that particular client. He opined that Ms Thomas’ direction to the applicant unnecessarily exposed him to risk. The applicant was right to try and speak to TVD in those circumstances, as he may have been able to achieve a peaceful outcome.
Dr Zalewski considered that the training provided to the applicant, including the POV guide, was deficient and inadequate. Had appropriate measures been implemented, including carefully developed response strategies, proper training for staff on physical intervention techniques and better developed training materials, the damage to the applicant ‘more likely than not would have been avoided’.
Mr Paul Plank
Mr Plank was the applicant’s treating orthopaedic surgeon. He has been an orthopaedic surgeon for 15 years. He prepared two reports for the applicant’s solicitors dated 27 June 2016 and 5 August 2016. He gave evidence regarding his treatment of the applicant, including the surgery he performed on 14 November 2013. He also provided his opinion on the relationship between the Ulabara incident and the applicant’s left knee condition.
Mr Plank said that the applicant had surgery as a child which involved the removal of his lateral meniscus. He treated the applicant in relation to his left knee, including surgery on 14 November 2013, being a left ACL reconstruction. He opined that the Ulabara incident led to a rupture of the ACL in his left knee:
[T]he timeline from my perspective is that the original injury [on 21 May 2013] is what injured the ACL. It then makes the knee unstable, so it’s more likely to twist or buckle, and I did know about the soccer ball into the knee … but then the twisting on the grass — obviously his knee would twist more now that the anterior cruciate ligament isn’t there to hold it stable, and that most likely led to him getting his lateral meniscus — that torn cartilage — torn again.
Mr Plank conceded that it was possible that the rupture of the ACL occurred from the slipping incident on 21 June 2013. The arthritic changes in the lateral joint compartment were longstanding in nature.
Neville Warner and Marjury Schembri
Mr Warner[9] and Ms Schembri[10] both gave evidence at trial that is immaterial to this appeal.
The respondent’s evidence at trial
[9]Mr Warner had worked with the applicant on concreting jobs. He gave evidence about the nature of the concreting jobs he and the applicant undertook, and that there was a ‘massive change’ in the applicant’s demeanour in 2013.
[10]The applicant’s wife of five years.
Tenille Thomas
Ms Thomas was the only witness called by the respondent.
At the time of the incident, Ms Thomas had two roles at Malmsbury — unit coordinator of the Campaspe Unit and acting manager at Malmsbury. She recalled the applicant and was in a position of seniority to him. She recalled WE and TVD, and described the latter as ‘a young man that displayed highly sexualised behaviours, as well as volatile behaviours towards staff and other young men at times’. She also described him as aggressive and unpredictable.
In relation to the Ulabara incident, Ms Thomas gave evidence:
·She had no recollection of the incident insofar as it related to the applicant and TVD. She had some recollection of the incident involving WE.
·To ensure the safety of all staff and clients, locking clients, including TVD, in their rooms would ensure that they reduce the risk of further issues.
·She did not provide the applicant with a handover at 5 pm when she began looking after Malmsbury, as handovers were conducted in the morning.
·A Code Black does not mandate clients be locked in their rooms.
·While she did not remember the incident, she gave evidence that she would have directed that TVD be removed from the common area because she did not know what he was going to do.
As to the system of work regarding Daily Safety Advices, Client Service Plans and the type of information that ought to be included in them, Ms Thomas said she did not recall being provided, or was not provided, with the Client Service Plan, or the incident reports dated 1 April 2013, 18 April 2013 or 12 May 2013 relating to TVD. She agreed that these documents either would or would potentially have assisted her in dealing with TVD on 21 May 2013.
In cross-examination, Ms Thomas was directed to the following materials:
(m) the Client Service Plan for TVD dated 2 April 2013; and
(n) client incident reports for TVD dated 2 April 2013, 18 April 2013 and 12 May 2013.
In re-examination, the following exchange took place:[11]
[11]With our emphasis.
COUNSEL:With [WE] behaving as we’ve heard, what do you say as to whether [TVD] could be left where he was?
MS THOMAS: It wouldn’t be the practice to leave him when all the other clients have gone. If the directive was to remove him — remove all the clients to their rooms, then we would still remove him given the incidents going on outside that we need to manage.
COUNSEL: That being the [WE] incident?
MS THOMAS: [WE]. Sorry. Yes.
COUNSEL:Yes. Having regard to all of these materials that my friend has taken you through, pre-lunch, at some length, and having regard to what has been reported to you as your actions on that day, is there anything that you could say now that you would do differently, putting aside for one moment the SERT … because they weren’t there? But apart from that, is there anything else that you would – would you do anything differently now to what you did then?
MS THOMAS: No. Still do the same. But, again, I don’t remember the incident.
Analysis
Ground 1 — Negligence
In our view, it was open to the jury, on the basis of the evidence that we have outlined, to reason as follows:
·The applicant was an able-bodied, experienced and competent employee.
·TVD’s violent propensities were well known to the staff, including both Ms Thomas and the applicant, despite the fact that they had not been supplied with incident reports, handover notes, Daily Service Advices, or Client Service Plans or recommendations.
·WE’s threatening conduct led to his exclusion from Ulabara.
·WE’s continued misconduct, carried out in the courtyard adjacent to Ulabara, carried with it the risk that he would incite the other young men in Ulabara (including TVD) to violence, thus creating escalating violence within the unit.
·The decision made by Ms Thomas to direct that all young men in Ulabara be escorted to their secure rooms was a reasonable and appropriate response in the unfolding circumstances.
·TVD refused to comply with Ms Thomas’ requests that he leave the compound and return to his room.
·In all the circumstances — including that all other young men in the compound had returned to their rooms, that WE continued to behave violently in the adjacent courtyard, and that TVD continued to refuse to comply with Ms Thomas’ requests — it was reasonable for Ms Thomas to decline the applicant’s requests that he sit down beside TVD and talk to him.
·Had the applicant been allowed to sit beside TVD and talk to him, while WE remained active in the courtyard, this would have created its own set of risks, including assault and injury in the event of needing to restrain TVD from a seated position.
·While TVD remained glazed and passive, there was no need to ‘de-escalate’ him from an aroused state. It was more important to remove him from the compound until WE could safely be managed.
·Had Ms Thomas been supplied with relevant incident reports, handover notes, Daily Service Advices, or Client Service Plans and recommendations, her decisions and directions on 21 May 2013 in relation to the impugned incident would have been the same.
·Had a robust management plan been developed for TVD, her decisions and directions on 21 May 2013 in relation to the impugned incident would have been the same.
If the above reasoning path was open to the jury, it was not incumbent upon it to find that any negligence on the part of the respondent, or its servants or agents, was a cause of injury to the applicant. The applicant established at trial that the respondent had failed to bring to the attention of either Ms Thomas or the applicant certain incident reports, handover notes, Daily Service Advices, and Client Service Plans and recommendations. Accepting for the moment that the respondent breached its employer’s duty of care owed to the applicant as a result of these procedural failures, it remained incumbent on the applicant to demonstrate that these failures were a cause of the applicant’s injury. The respondent’s answer to these allegations were two-fold. First, that TVD’s behavioural issues were well known by all staff (including the applicant and Ms Thomas), regardless of any information in those reports, advices and plans; and secondly, that even if she had all that information to hand in the difficult circumstances that prevailed, she would not have done anything differently.
We consider that the jury were entitled to conclude that:
(o) any procedural failure on the respondent’s behalf did not have a causal consequence; and
(p) Ms Thomas’ direction to the applicant was reasonable in all the circumstances.
His Honour’s directions to the jury were impeccable on this question of negligence. He correctly identified the issues for the jury and on the critical issue of Ms Thomas’ direction, he directed the jury as follows:
Your approach and your analysis as to whether, in this instance, Mr Schembri has established that the defendant, through its servants and agents, failed to act reasonably should be considered objectively in relation to the behaviour of those persons in the circumstances that you are now well familiar with. It is for you, as reasonable members of the community, to decide what a reasonable person should have done in all the circumstances of this case.
That is really getting to the core of the exercise. You should not approach the questions in a mathematical fashion. You will need to make a value judgment as to what response, if any, was required by the persons I am speaking of in positions of responsibility and management at the Malmsbury facility at the relevant time – that is, the time of the incident and in relation to systems and procedures leading up to the time of the incident.
It is not our function to substitute our opinion for that of the jury. We reject the argument that the jury acting reasonably must have found that the respondent was negligent.
Ground 1 must be rejected.
Ground 2 — Statutory breach
Ms Thomas’ direction to the applicant to remove TVD from the Ulabara compound involved, unarguably, ‘hazardous manual handling’ as defined in the OHS Regulations. The respondent conceded this to be the case at trial and in this application for leave to appeal. The effect of this concession is that the respondent was obliged to comply with regs 2.1.2, 3.1.1, 3.1.2 and 3.1.3.
We shall set out the relevant regulations relied upon by the applicant:
(q) regulation 2.1.2 (provision of information, instruction and training):
(1)If these Regulations require an employer to control any particular risk, the employer must provide each employee of the employer who may be exposed to the risk with sufficient information, instruction and training in relation to the following matters as are necessary to enable the employee to perform his or her work in a manner that is safe and without risks to health—
(a) the nature of the hazard giving rise to the risk; and
(b)the need for, and the proper use and maintenance of, measures to control the risk.
(r) regulation 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.
(s) regulation 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.
(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—
…
(iii) the systems of work used to undertake the task …
…
(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.
(t) regulation 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.
…
(2)A health and safety representative may make a request under subregulation (1)(g) if the health and safety representative believes on reasonable grounds that—
(a)any of the circumstances referred to in subregulations (1)(a) to (1)(f) exists; or
(b) the employer has failed—
(i) to properly review the risk control measures; or
(ii)to take account of any of the circumstances referred to in subregulations (1)(a) to (1)(f) in conducting a review of, or revising, the risk control measures.
Regulations 2.1.1 and 3.1.2(3) imposed obligations upon the respondent to provide information, instruction and training about the hazardous manual handling task, and to control risk using that information, instruction and training. Accepting that the respondent failed to provide the requisite information, instruction or training to the applicant or Ms Thomas, and thus breached these regulations, the breach must have causal significance. On the view of the evidence most favourable to the respondent, the jury was not bound to find that the respondent, through Ms Thomas, would have adopted a different system for the removal of clients to their rooms had she been provided with this information, instruction and training. The jury were entitled to accept Ms Thomas’s evidence that, having regard to the material she was taken to in her evidence, she would not change any part of her response to the incident on 21 March 2013.
Similarly, a failure to identify the task of removing clients to their rooms as involving hazardous manual handling (reg 3.1.1) would only have causal significance if that failure was a cause of the applicant’s injury. Again, it was open to the jury to conclude there was no causal significance — had the respondent identified that the task involved hazardous manual handing, would the direction given by Ms Thomas have been different? The jury was not bound, on the evidence, to conclude that it would have been.
Regulation 3.1.3 imposed an obligation on the respondent to review risk control measures and if necessary, revise them in certain specified circumstances. Accepting that the review or reviews did not take place, it was open to the jury to conclude that there was no causal significance by the same process of reasoning as applied to regs 2.1.2, 3.1.1 and 3.1.2(3). Specifically, it was open to the jury to conclude that had the reviews and/or revisions taken place as required by reg 3.1.3, Ms Thomas would not have changed any part of her response to the impugned incident.
Regulations 3.1.2(1)–(2) impose obligations upon an employer to ensure that the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee:
(u) is eliminated so far as is reasonably practical; or
(v) if not reasonably practicable, is reduced so far as is reasonably practicable by altering the systems of work used to undertake the task.
The question for the jury to determine, insofar as these regulations were concerned, was whether, as far as was reasonably practicable, the system of work used by the respondent to remove clients to their rooms eliminated or reduced the risk of musculoskeletal disorder associated with that task. Taking the view of the evidence most favourable to the respondent, it was open to the jury to conclude that the risk of escorting a violent and unpredictable young man could never be eliminated by reasonably practicable means, and the means adopted on this occasion (two able-bodied men escorting the client to his room, one on each arm) was a reasonably practicable method of reducing the risk of musculoskeletal disorder.
Ground 2 must be rejected.
Conclusion
Leave to appeal is refused.
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