Meade v Nillumbik Australia Pty Ltd & Anor (Ruling)
[2019] VSC 786
•16 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2016 04887
| WARREN MEADE | Plaintiff |
| v | |
| NILLUMBIK AUSTRALIA PTY LTD | First Defendant |
| and | |
| SUEZ RECYCLING & RECOVERY PTY LTD | Second Defendant |
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JUDGE: | CAVANOUGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9, 10, 11, 12, 13, 16 September 2019 |
DATE OF RULING: | 16 September 2019 |
DATE OF WRITTEN REASONS: | 3 December 2019 |
CASE MAY BE CITED AS: | Meade v Nillumbik Australia Pty Ltd & Anor (Ruling) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 786 |
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OCCUPATIONAL HEALTH AND SAFETY – Regulations – Interpretation – Regulations imposing duties on employers in respect of any task involving a fall hazard or a risk of a fall – ‘Fall’ defined to mean ‘a person’s involuntary fall of more than 2 metres’ – Held that regulations do not apply where the task involves no possibility that the whole of the body of the employee will fall more than two metres, measured vertically – Held that regulations inapplicable in this case – Occupational Health and Safety Act 2004 - Occupational Health and Safety Regulations 2007, Part 3.3.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | N Murdoch QC and E Makowski | Arnold Thomas & Becker |
| For the First Defendant | R Middleton QC and B Myers | Hall & Wilcox |
| For the Second Defendant | P Morris SC and S Manova | James Tuite & Associates |
HIS HONOUR:
Introduction: ruling at trial on applicability of regulations relating to preventing workplace falls
On 16 September 2019, during the trial by a jury of the plaintiff’s claims against his former employer and another defendant for damages for personal injury suffered in a workplace accident, the plaintiff sought to rely, as against his former employer, on certain regulations made under the Occupational Health and Safety Act 2004 (Vic). The former employer opposed this. In short, the question was whether it would have been open to the jury to find that the task on which the plaintiff was engaged at the time of the accident involved the risk of a ‘fall’ within the meaning of the regulations, where ‘fall’ was defined to mean ‘a person’s involuntary fall of more than 2 metres’.
After argument, I arrived at the conclusion that no such finding would have been open to the jury. It was not alleged that the whole of the plaintiff’s body was at risk of falling more than two metres. On that basis, I formed the view that, on their proper construction, the regulations could not apply. I so ruled. That put an end to the case against the former employer insofar as it was based on breach of statutory duty. It involved the further consequence that the alleged breaches of the regulations in question could not be relied upon as particulars of the plaintiff’s claim in common law negligence against the former employer.
I gave short oral reasons. I indicated that I may subsequently publish revised written reasons. On 27 September 2019, the jury delivered a verdict. Liability in negligence was found against both defendants. On 1 October 2019, final judgment was given in accordance with the verdict of the jury. No party has appealed from the judgment given. However, at the time of giving final judgment I was requested to publish written reasons in due course for my ruling on the applicability of the regulations. I now do so.
The basic facts and the plaintiff’s claims
At trial, it was common ground that, at all material times, the plaintiff was employed by the first defendant as a sales assistant in a retail lighting shop in provincial Victoria. One of the tasks of his employment was to put waste cardboard and similar material into a large industrial recycling bin that was kept at the premises and to fit as much into the bin as possible, in order to minimise the frequency of the trips required to be made by the second defendant (a waste management company that had supplied the bin) to empty the bin.
It was also common ground that the height of the bin, not including its lid but including the wheels or casters on which it stood, was 1.5 metres from the ground, or very close to that height.
It was the plaintiff’s case that, on 21 March 2012, he climbed up onto the metal lip or rim of the bin with a view to getting into it to compress down the cardboard and other material that it contained and that, while he was standing on the rim of the bin, with the bin lid open and his left hand reaching upwards and touching the lid, the lid moved and knocked him to the ground, or he otherwise fell to the ground, suffering serious injuries to his right leg and foot.
The plaintiff’s primary claim against his former employer was his claim in common law negligence. He alleged that the former employer had failed to take reasonable care to establish, maintain and enforce a safe system of work in relation to the filling of the recycling bin. In particular, the plaintiff alleged that the former employer had failed to establish a safe system for compacting or compressing the material in the bin and had failed to provide appropriate instructions to the plaintiff.
In addition, the plaintiff sought to rely on an alleged breach on the part of the first defendant as his employer, of duties said to have been cast upon it by pt 3.3 div 2 (Prevention of Falls) of the Occupational Health and Safety Regulations 2007 (Vic) (‘the 2007 regulations’) as in force at the time of the accident (the 2007 regulations have since been repealed and replaced by corresponding regulations). The plaintiff had been permitted by an order of T Forrest J (as Forrest JA then was) made on 18 June 2018 to amend his statement of claim so as to rely (for the first time) upon that Division of the 2007 regulations. In the end, he pleaded breaches of reg 2.1.2(1), reg 3.3.3, regs 3.3.4(1) to (4) and reg 3.3.5.
The prior interlocutory ruling on the amendment application
The application to amend in 2018 had been opposed by the first defendant before T Forrest J. His Honour’s reasons for granting the application for leave to amend contained the following passage:[1]
[1]Meade v Nillumbik Australia Pty Ltd & Anor [2018] VSC 328 [30]-[32] (‘Meade v Nillumbik’) (first two footnotes added by me; other footnotes as in original but renumbered).
30The prevention of falls regulations are set out in Part 3.3 of the Regulations. Fall is defined in reg 1.1.5 as ‘an involuntary fall of more than two metres’.[2] The application of the Part is set out in reg 3.3.1 and various irrelevant exceptions are provided in regs 3.3.1 and 3.3.2. Reg 3.3.3 sets out the duties of employers to identify fall hazards, and at reg 3.3.4, measures that must be taken to control the risk of a fall are set out. If it is not reasonably practical[3] to relocate the task to ground level, or implement a passive fall protection device or work positioning system or a fall arrest system,[4] then the employer is required to ensure that the risk is reduced by the use of a fixed or portable ladder or an administrative control.[5]
31As I have said, the first defendant argued that, as the rim of the bin upon which the plaintiff stood was less than two metres from ground level, this was not a fall within the contemplation of Part 3.3 and thus, these regulations were not engaged. In Boehm v Strongback Pty Ltd,[6] Beach J considered a similar circumstance. In that case, the plaintiff, in the course of his employment, was standing on the step of a ladder 1.7 metres above ground level. The defendant contended that, as the fall was less than two metres, the Regulations had no application in this case. His Honour cited with approval a passage from R v ACR Roofing Pty Ltd[7] to the effect that where legislation concerns industrial safety, it is to be given the fullest relief which the fair meaning of its language will allow. Beach J concluded that these fall protection regulations should be so construed. With respect, I agree with his Honour. His Honour said:
[54]The words ‘fall of more than two metres’ are ordinary English words. They should not be construed in some narrow and pedantic sense. If, on the whole of the evidence, it can be fairly said that a person fell more than two metres, then such a fall is a fall of the kind covered by the Regulations.
[55]In this case, affixing the iron above the hot water service at a height of 2.5 metres involved a ‘fall hazard’ … That is, there was a potential to fall more than two metres.
32In the present case, it would be open to the trier of this fact (whether judge or jury) to conclude that the plaintiff’s fall was one of more than two metres. The rim of the bin was about 1.5 metres from ground level. The plaintiff, a man of normal height, stood fully upright and extended one arm upward to steady himself on the bin lid. Most of his body, from about the knees upwards, at this stage, would be at or above a height of two metres. In my view, applying the principle of statutory construction relied on by both Nettle and Beach JJA, it would be open to conclude that the plaintiff’s fall was of more than two metres. It follows that I consider that there is factual merit in this aspect of the proposed FASOC.
[2]I interpolate that, more precisely, ‘fall’ was defined in reg 1.1.5 as ‘a person’s involuntary fall of more than 2 metres’. See below.
[3]The word actually used in the Regulations was not ‘practical’ but ‘practicable’. See below.
[4]See Occupational Health and Safety Regulations 2007 regs 3.3.1, 3.3.2, 3.3.3 and 3.3.4.
[5]Ibid reg 3.3.5.
[6][2011] VSC 463 (‘Boehm’).
[7](2004) 11 VR 187, 203 [43] (Nettle JA) (‘R v ACR Roofing’).
Whether still open to first defendant to submit that statutory duty claim should not go to jury
Before me, the first defendant renewed the submission that the regulations were inapplicable because the rim of the bin upon which the plaintiff allegedly stood was less than two metres from ground level.
The plaintiff submitted that it was not open to the first defendant to renew this submission because the first defendant had not appealed from the ruling of T Forrest J. However, his Honour was merely ruling upon the plaintiff’s application to amend the statement of claim. He had no occasion to rule upon the proper interpretation of the regulations in a final and concluded way. Indeed, as his Honour recognised, it was enough that his Honour was satisfied that the proposed amendment was not obviously futile.[8] My task, on the other hand, was to determine, in a final way, whether the plaintiff’s alternative claim based on the regulations should be permitted to go before the jury. Hence the first defendant was entitled to renew its submission.
[8]Meade v Nillumbik (n 1) [16] and the cases there cited, [22]. See also Commonwealth v Verwayen (1990) 170 CLR 394, 456.
The relevant provisions of the regulations
As indicated above, the regulations on which the plaintiff relied, as in force at the time of the accident (21 March 2012), were the Occupational Health and Safety Regulations 2007 (Vic). Those regulations had revoked certain earlier sets of regulations, including the Occupational Health and Safety (Prevention of Falls) Regulations 2003 (Vic). The 2003 regulations had been considered in Boehm v Strongback Pty Ltd (‘Boehm’),[9] but they were different in some ways from the 2007 regulations, as I will explain in due course. The 2007 regulations, in turn, have now been revoked and replaced by the Occupational Health and Safety Regulations 2017 (Vic). The plaintiff sought to draw some support from the 2017 regulations for his arguments in relation to the interpretation of the 2007 regulations. I will come back to the 2003 regulations and the 2017 regulations in due course in dealing with the parties’ respective arguments. The main focus, of course, must be on the 2007 regulations. The salient provisions of the 2007 regulations, as in force on 21 March 2012, were as follows:
[9]Boehm (n 6).
1.1.1 Objectives
The objectives of these Regulations are—
(a)to further the objects of Occupational Health and Safety Act 2004 by—
(i)providing for health and safety in relation to workplaces and hazards, activities and things at workplaces;
…
1.1.5 Definitions
In these Regulations—
administrative control means a system of work or a work procedure that is designed to eliminate or reduce a risk, but does not include—
(a)a physical control; or
(b)the use of personal protective equipment;
…
fall, in Part 3.3 (Prevention of Falls), means a person’s involuntary fall of more than 2 metres;
fall arrest system means equipment or material or a combination of equipment and material that is designed to arrest the fall of a person;
Example
Industrial safety net, catch platform or safety harness system (other than a travel restraint system).
…
industrial rope access system means a system designed for the purpose of performing work on a building or structure by a person and consists of—
(a)equipment that enables a person to manually raise or lower himself or herself in a harness or seat supported by one or more fibre ropes; and
(b) equipment used to anchor the ropes;
…
passive fall prevention device means material or equipment, or a combination of material and equipment, that is designed for the purpose of preventing a fall, and that, after initial installation, does not require any ongoing adjustment, alteration or operation by any person to ensure the integrity of the device to perform its function;
Example
Temporary work platform, roof safety mesh or guard railing.
…
task, in Part 3.3 (Prevention of Falls), includes moving to and from a task;
…
temporary work platform means—
(a)a fixed, mobile or suspended scaffold; or
(b)an elevating work platform; or
(c)a masked climbing work platform; or
(d)a work box supported and suspended by a crane, hoist, forklift truck or other form of mechanical plant; or
(e)building maintenance equipment, including a building maintenance unit; or
(f) a portable or mobile fabricated platform; or
(g)any other temporary platform that provides a working area for the duration of work performed at height and that is designed to prevent a fall;
…
travel restraint system means equipment that is worn by or attached to a person and is designed for the purpose of physically restraining a person from reaching an edge or elevated surface from which he or she may fall;
Example
A system in which a harness or belt is attached to one or more lanyards, each attached in turn to a static line or anchorage point.
…
work positioning system means—
(a) an industrial rope access system; or
(b) a travel restraint system; or
(c)any other equipment, other than a temporary work platform, that enables a person to be positioned and safely supported at a work location for the duration of the task being undertaken at height.
…
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.
…
2.1.1 Proper installation, use and maintenance of risk control measures
(1)A person who is required by these Regulations to use any particular measure to control risk must ensure that the measure is properly installed (if applicable), used and maintained.
Note
Act compliance—sections 21, 22, 23, 24, 26, 29, 30 and 31 (see regulation 1.1.7).
…
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.
Notes
1 Act compliance—section 21 (see regulation 1.1.7).
2Section 21 of the Act also places obligations on an employer in relation to supervision.
(2)The obligation imposed by subregulation (1) is in addition to any other obligation imposed on the employer by these Regulations in relation to the provision of information, instruction and training.
PART 3.3 – PREVENTION OF FALLS
…
Division 2 – Duties of employers
3.3.3 Hazard identification
An employer must, so far as is reasonably practicable, identify any task that an employee is required to undertake at a workplace that involves a fall hazard including—
(a)on any plant or structure being constructed, demolished, inspected, tested, maintained, repaired or cleaned;
(b)on a fragile, slippery or potentially unstable surface;
(c)using equipment to gain access to an elevated level or to undertake the task at an elevated level;
(d)on a sloping surface on which it is difficult to maintain balance;
(e)in close proximity to an unprotected edge;
(f)in close proximity to a hole, shaft or pit that is of sufficient dimensions to allow a person to fall into the hole, shaft or pit.
Notes
1Act compliance—section 21 (see regulation 1.1.7).
2 A fall in this Part means an involuntary fall of over 2 metres (see the definition of fall in regulation 1.1.5).
3.3.4 Control of risk
(1)An employer must ensure that if an employee is required to undertake a task at the workplace that involves a risk of a fall, the risk is controlled, so far as is reasonably practicable, by arranging for the task to be undertaken—
(a) on the ground; or
(b) on a solid construction.
Notes
1 Act compliance—section 21 (see regulation 1.1.7).
2 See subregulation (6) for the definition of solid construction.
(2)If it is not reasonably practicable to comply with subregulation (1), or only part of a task may be undertaken in accordance with subregulation (1), and a risk of a fall remains, the employer must reduce the risk, so far as is reasonably practicable, by ensuring that a passive fall prevention device is used.
Notes
1Act compliance—section 21 (see regulation 1.1.7).
2Examples of a passive fall prevention device are given in the definition of that term in regulation 1.1.5.
(3)If it is not reasonably practicable to comply with subregulations (1) and (2), or only part of a task may be undertaken in accordance with those subregulations, and a risk of a fall remains, the employer must reduce the risk, so far as is reasonably practicable, by using a work positioning system.
Notes
1Act compliance—section 21 (see regulation 1.1.7).
2Work positioning system is defined in regulation 1.1.5.
(4)If it is not reasonably practicable to comply with subregulations (1), (2) and (3), or only part of a task may be undertaken in accordance with those subregulations, and a risk of a fall remains, the employer must reduce the risk, so far as is reasonably practicable, by putting in place a fall arrest system.
Note
1Act compliance—section 21 (see regulation 1.1.7).
2Examples of a fall arrest system are given in the definition of that term in regulation 1.1.5.
(5)If it is not reasonably practicable to comply with subregulations (1), (2), (3) and (4), or only part of a task may be undertaken in accordance with those subregulations, and a risk of a fall remains, the employer must reduce the risk, so far as is reasonably practicable, by ensuring that—
(a)a fixed or portable ladder is used in accordance with regulation 3.3.5 ; or
(b)an administrative control is used.
Note
Act compliance—section 21 (see regulation 1.1.7).
(6) In this regulation, solid construction means an area that has–
(a)a surface that is structurally capable of supporting people, material and any other loads intended to be applied to it; and
(b) barriers around its perimeter and any open penetrations to prevent a fall from the area; and
(c)an even and readily negotiable surface and gradient; and
(d)a safe means of access and egress.
3.3.5 Use of ladder as a control measure
An employer must ensure that a fixed or portable ladder used in accordance with regulation 3.3.4 to control the risk of a fall—
(a) is fit for the purpose; and
(b) is appropriate for the duration of the task; and
(c) is set up in a correct manner.
3.3.6 Use of administrative control only
(1)If an employer uses only an administrative control in accordance with regulation 3.3.4 to control the risk of a fall, the employer must, before the task is undertaken, record—
(a) a description of the administrative control used; and
(b)a description of the task to which the administrative control relates.
Penalty: 60 penalty units for a natural person;
300 penalty units for a body corporate.
(2)In complying with subregulation (1), an employer may make a generic record in respect of a task to which an administrative control relates if the task will be undertaken in the same or similar circumstances at more than one workplace or at more than one work area within a workplace.
(3)The employer must retain a record made under this regulation for the period during which the task to which the administrative control relates is being undertaken.
Penalty: 60 penalty units for a natural person;
300 penalty units for a body corporate.
(4) The preparation of a safe work method statement in accordance with regulation 5.1.9 is to be taken to be compliance with subregulation (1).
Various other requirements and restrictions are imposed by pt 3.3 div 2 (Prevention of Falls) of the 2007 regulations, including requirements as to the use of plant, requirements as to the review of risk control measures and requirements as to emergency procedures.
The plaintiff’s submissions as to the meaning of the regulations and as to precedent
The plaintiff submitted[10] that the primary duty imposed on an employer by pt 3.3 div 2 of the 2007 regulations was the duty set out in reg 3.3.3, as follows:
An employer must, so far as is reasonably practicable, identify any task that an employee is required to undertake at a workplace that involves a fall hazard…
[10]Principally, the plaintiff’s submissions were set out in a 7 page outline of submissions dated 13 September 2019 which his senior counsel adopted in the course of oral submissions.
The plaintiff noted that the word ‘fall’ is defined in reg 1.1.5 to mean ‘a person’s involuntary fall of more than 2 metres.’
The plaintiff then noted that, in addition to the duty to identify tasks involving a fall hazard, the regulations imposed duties where, if an employee is required to undertake a task at a workplace that involved a risk of a fall, the risk was controlled or reduced by taking certain measures (reg 3.3.4(1)–(5)).
The plaintiff submitted that the definition of ‘fall’ does not specify how the distance of ‘more than 2 metres’ is to be measured: that is, the points between which the distance of over 2 metres is to exist are not specified. The regulations do not specify that the distance must be vertical. Nor do they specify that any particular part of the worker’s body should form one of the points from which the measurement is to be made. To the contrary, the plaintiff submitted, the fall of over 2 metres is required by the definition in reg 1.1.5 to be that of ‘a person’. According to the plaintiff, reg 1.1.5 does not specify that the entirety of ‘a person’ must fall over 2 metres in order for the regulations to be engaged.
The plaintiff noted that reg 3.3.3 required an identification of tasks which involved a ‘fall hazard’. The word ‘hazard’ was not defined in the 2007 regulations. Its ordinary meaning, the plaintiff submitted, is ‘risk of loss or harm’. Therefore, the plaintiff submitted, the requirement of reg 3.3.3 is to identify tasks which may involve the risk of a worker falling over 2 metres. According to the plaintiff, the concern of the regulations with the notion of ‘risk’ is confirmed by the terms of reg 3.3.4(1) and following.
Next, the plaintiff turned to matters of precedent. He noted that the expression ‘fall hazard’ had been defined in the 2003 regulations to mean ‘potential to fall’. The plaintiff submitted that the context was the same. He submitted that in Boehm Beach J had dealt with a cause of action based on reg 204 of the 2003 regulations, which imposed an obligation on an employer to take steps to address the risk of a fall, where the word ‘fall’ was defined in reg 104 in the same terms as are applicable here. The plaintiff quoted paragraphs 53 and 54 of the judgment of Beach J in Boehm. Paragraph 53 was as follows:
In my view, Regulation 204 and the definition of ‘fall’ in Regulation 104 should be construed so as to give the fullest relief which the fair meaning of the language used will allow. Whilst the Regulations should be understood as requiring an employer to give some focus to the height of structures or places from where there might be falls, that focus should not give rise to a construction that would defeat the objective of ensuring workplace safety.
Paragraph 54 of Boehm, the terms of which were in turn quoted by T Forrest J, is set out above at paragraph 6 of this ruling.
The plaintiff submitted that, in Boehm, Beach J was dealing with a worker standing on a ladder with his feet at 1.7 metres above the ground, working at a height of about 2.5 metres above the ground. The plaintiff submitted that Beach J held that there was, in those circumstances, a potential to fall more than 2 metres, and that Beach J found that the regulation had been breached.
The plaintiff further submitted that the construction by Beach J of the 2003 regulations formed part of the ratio of his Honour’s decision, notwithstanding that his Honour had already found in favour of the plaintiff in negligence before turning to breach of statutory duty. The plaintiff submitted that the 2007 regulations applicable in the present case were relevantly identical.
The plaintiff further noted that T Forrest J had rejected a submission that Boehm was wrongly decided. To the contrary, the plaintiff submitted that T Forrest J had referred to Boehm and had stated specifically[11] that he agreed with the conclusion of Beach J that the regulations should be construed (concerning as they do the matter of industrial safety) so as to give ‘the fullest relief which the fair meaning of the language allows’. That approach, the plaintiff said, had been drawn from R v ACR Roofing Pty Ltd.[12] The plaintiff submitted that it was evident that T Forrest J had agreed with the analysis undertaken by Beach J in Boehm of the 2003 regulations.
[11]Meade v Nillumbik (n 1) [31].
[12]R v ACR Roofing (n 7), 203 [43] (Nettle JA).
Next, the plaintiff referred to the importance of judicial comity, citing the following passage from the judgment of McMillan J in WE Pickering Nominees Pty Ltd v Pickering:
As to decisions of single judges of this Court, the very same principle of comity applies. Single judges should follow decisions of other single judges unless convinced that they are plainly or clearly wrong. This has been said by single judges of this Court on several occasions, and I agree with those statements of principle.[13]
[13][2016] VSC 71 [91] (citations omitted); an appeal was allowed in WE Pickering Nominees Pty Ltd (as trustee of WE Pickering Family Trust) v Pickering [2016] VSCA 273, but not on this issue.
So, the plaintiff submitted, unless this Court took the view that the ‘ratio’ of Boehm, which was said to have attracted the ‘implicit agreement’ of T Forrest J, was plainly wrong, it should be followed.
The plaintiff then turned to more general arguments of statutory interpretation.
The plaintiff submitted that it was uncontroversial that legislation concerned with furthering industrial safety should be construed ‘so as to give the fullest relief which the fair meaning of its language will allow’, citing the decision of the High Court in Waugh v Kippen[14] and also citing the well–known Australian text Pearce and Geddes, Statutory Interpretation in Australia.[15] He submitted that the High Court had confirmed in Deal v Father Pius Kodakkathanath (‘Deal’)[16] that this approach should be taken to such legislation. According to the plaintiff, the High Court further noted the importance of not reading down the provisions of such legislation notwithstanding that there may be both penal and civil consequences for their breach.[17] In this way, the plaintiff submitted, the importance of the regulations being given a construction which was easily understood and met by all employers was addressed.
[14](1986) 160 CLR 156, 164 (‘Waugh v Kippen’) where, in turn, the High Court had cited Bull v Attorney-General (1913) 17 CLR 370, 384 (Isaacs J) (‘Bull’) in relation to this topic. His Honour was in dissent in that case, but the matter was successfully appealed to the Privy Council: Bull v Attorney-General for New South Wales (1916) 22 CLR 333.
[15]DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) [9.2] (I gather that the plaintiff was referring to the 8th edition).
[16](2016) 258 CLR 281, 295 [36] (‘Deal’).
[17]Ibid, 295 [38].
Returning to the specific facts of this case, the plaintiff submitted that the circumstances of his fall were directly comparable to the circumstances of Boehm. The plaintiff was (according to his claim) standing with his feet on the lip of a bin which was approximately 1.5 metres above the ground. The plaintiff was 186cm tall. Therefore, the plaintiff submitted, his body, above approximately knee height, was more than 2 metres above the ground; and so he was, at that moment, at risk of a fall of over 2 metres, looking at him ‘as a person’ as the regulations required.
The plaintiff submitted that it was immaterial that he landed on his right foot when he fell from the lip of the recycling bin. It was immaterial, the plaintiff submitted, that his right foot may have, in the course of the fall, travelled a vertical distance of less than 2 metres. Certainly, the plaintiff submitted, standing on the lip of the bin placed him at risk of a fall of over 2 metres insofar as the ‘substantial majority’ of his body was concerned. Therefore, the plaintiff submitted, regs 3.3.3 and 3.3.4 were engaged.
According to the plaintiff, it was incorrect to focus attention solely on the height of the lip of the bin in this case. That did not of itself determine the extent of the risk of the fall faced by the plaintiff. Self–evidently, the plaintiff submitted, there was a very real risk of injury involved in a person falling from the height of the lip of the bin. Reg 3.3.3 referred to potential fall hazards which may well not involve a fall over a vertical distance. In particular, the plaintiff submitted, sub–paras (b) and (d) of reg 3.3.3 contemplated surfaces which may be slippery, potentially unstable or sloping. It was possible to envisage a worker climbing a steep sand dune, or a steep hill covered in snow or mud, whereby the 2007 regulations may be engaged, notwithstanding that the worker was not engaged in a task from an elevated platform.
Further, the plaintiff submitted, on his evidence, he fell significantly more than 2 metres once the alleged horizontal element of his fall was taken into account. This was a reference to the plaintiff’s evidence that he finished up at some horizontal distance from the side of the bin when he came to rest after his fall. (The plaintiff had speculated from time to time in his answers to interrogatories and in his oral evidence that the lid of the bin may have closed rapidly due to a gust of wind knocking him a considerable distance sideways).
The plaintiff submitted that the words ‘a person’s involuntary fall of more than 2 metres’ should not be read ‘narrowly’ so as to require a vertical distance of 2 metres between the ground and the worker’s feet (or the lowest part of the worker’s body). According to the plaintiff, there is no warrant in the language of the regulations to do so, and it would be to take the opposite approach to the regulations from that which is demanded by their protective nature.
According to the plaintiff, it is not to stretch the language of the definition to construe it so as to refer to ‘the substantial part’ of the worker’s body being at risk of falling over 2 metres as sufficient to engage the operation of the regulations.
The plaintiff went on to refer to the regulatory impact statement (‘RIS’) for the 2007 regulations and also to the RIS for the 2017 regulations.
The plaintiff noted that the RIS for the 2007 regulations contained a section (s 5.4 commencing at page 70) concerning ‘Prevention of Falls’. The 2007 RIS referred to the distinction drawn between falls of 2 metres or less and falls from more than 2 metres.[18] It noted that the existing (2003) regulations defined a fall as being a fall of more than 2 metres. The 2007 RIS contained a statement that ‘both employer and union stakeholders suggested that this definition is open to interpretation as to how the total distance of a fall is measured’.[19] It proceeded to note the position of WorkSafe to the effect that the current definition was to be maintained, with further information about interpretation of the height threshold to be contained in guidance material.
[18]The reference to falls ‘from’ more than 2 metres does not help the plaintiff. See further below.
[19]2017 RIS p 73.
The plaintiff said that guidance material in respect of the 2007 regulations was not immediately available. The plaintiff further submitted that the guidance material issued in respect of the 2017 regulations, being regulations which (the plaintiff said) were relevantly the same, did not provide any assistance.
The plaintiff pointed out that the 2017 RIS contained a section dealing with ‘falls’.[20] The plaintiff referred to a statement at s 8.4.2.1 of the 2017 RIS to the effect that consideration had been given to a change to the definition of ‘fall’. The 2017 RIS noted the potential for employers to misunderstand their obligations in relation to the risk of falls below 2 metres (noting, in particular, a perception that no controls were required for risks of falls below 2 metres[21]). The 2017 RIS also noted that, despite consideration being given to three different options of addressing that issue, it was determined that the current definition of ‘fall’ should be retained, subject to some minor changes to clarify that safety obligations still apply under the Act in relation to falls below 2 metres.[22]
[20]Deloitte Access Economics, Regulatory Impact Statement for proposed Occupational Health and Safety Regulations 2017 and Equipment (Public Safety) Regulations 2017 (June 2016) 73 (‘2017 RIS’) 88-97.
[21]Ibid [8.4.1.1].
[22]Ibid. The options considered were set out on p 91 and the potential impacts were assessed on pp 95, 96 and 97.
At the hearing, Mr Murdoch QC submitted orally on behalf of the plaintiff that the maker of the 2017 regulations should be taken to have been aware of the judgment of Beach J in Boehm. He submitted that the fact that the 2017 regulations contained the same definition of ‘fall’ should be taken as an endorsement or acceptance of the correctness of the interpretation adopted by Beach J in Boehm of the corresponding definition in the 2003 regulations. This in turn, the plaintiff submitted, should be treated as a reason to interpret the 2007 regulations in the same way.
Concession that whole body fall of more than two metres, measured vertically, was not possible.
Mr Murdoch QC fairly conceded that on no view of the facts of this case did the relevant workplace task involve a risk of a fall of more than two metres measured vertically from the plaintiff’s feet. In other words, Mr Murdoch QC conceded that there was no prospect that the task might involve a fall of the whole of the plaintiff’s body through a vertical distance of two metres or more.[23] This was a proper concession.
[23]Transcript of Proceedings, Meade v Nillumbik Australia Pty Ltd (Supreme Court of Victoria, SCI 201604887, Cavanough J, 9-13 and 16 September 2019) 680–683.
The positions of the defendants
The first defendant contended that the definition of ‘fall’ in the relevant regulations referred to a fall of more than 2 metres (measured vertically) of the whole of the relevant person; and that therefore the regulations could not apply in this case. The first defendant filed a detailed outline of submissions in support of its position.[24] The second defendant was not affected by this issue and took no part in the debate.
[24]First defendant’s outline of submissions dated 15 September 2019.
Analysis of text, context and purpose
In my opinion, it is quite clear from the text, context and purpose of the relevant 2007 regulations (‘the Fall Prevention Regulations’) that they were not applicable where there was no risk that the whole body of the employee would fall more than two metres, measured vertically. In other words, I accept that the first defendant’s interpretation of the Fall Prevention Regulations is correct. For reasons to which I will come under a separate heading in due course, Boehm is clearly distinguishable and does not support the plaintiff’s contrary interpretation of the relevant regulations.
The meaning of primary legislation is to be determined by reference to considerations of text, context and purpose.[25]
[25]See Talacko v Bennett (2017) 260 CLR 124, 145 [65] and cases there cited. See also, now, The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35 (16 October 2019) [31]-[37] (Kiefel CJ and Keane J, with whose reasons Nettle and Gordon JJ generally agreed): at [148] and at [163]-[165] (Edelman J).
Generally speaking, the meaning of delegated legislation is to be determined by the same principles.[26] That proposition is subject to one qualification that only reinforces my view as to the meaning of the regulations in question.
[26]Collector of Customs v Agfa Gevaert Limited (1996) 186 CLR 389, 398; DC Pearce and S Argument, Delegated Legislation in Australia (LexisNexis, 4th ed, 2012) [30.1]; Deal (n 16), 295 [37].
In their leading text Delegated Legislation in Australia, Pearce and Argument say that there is one approach to the interpretation of subordinate or delegated legislation which is different from that used for Acts of Parliament.[27] That approach, the learned authors say, was stated by Lord Reid in Gill v Donald Humberstone & Co Ltd (‘Gill’).[28] Coincidentally, Gill was concerned with the interpretation of UK regulations relating to fall protection in respect of building work, being regulations relating in particular to situations where a person was liable ‘to fall a distance of more than six feet six inches’. The issue in the case was not about the meaning of that expression, but the context is strikingly similar.[29] Lord Reid said:
I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry, and their primary purpose is to prevent accidents by prescribing appropriate precautions. Any failure to take prescribed precautions is a criminal offence. The right to compensation which arises when an accident is caused by a breach is a secondary matter. The regulations supplement, but in no way supersede, the ordinary common law obligations of an employer to care for the safety of his men, and they ought not to be expected to cover every possible kind of danger. They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament. Section 60 of the Factories Act, 1937, empowered the Secretary of State to ‘make such special regulations as appear to him to be reasonably practicable and to meet the necessity of the case’. So the Secretary of State, with the wealth of experience and practical knowledge available in his department, must have thought the application of each provision to be reasonably practicable. Of course, difficulties cannot always be foreseen, and it may happen that in a particular case the requirements of a regulation are unreasonable or impracticable; but, if the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result.[30]
The Gill approach to interpretation has since been adopted in numerous cases in relation to comparable regulations, including by Murphy J in the High Court in Driscoll v J Scott Pty Ltd[31] which concerned regulations relating to scaffolding.[32] Here, as I will in due course explain, practical considerations confirm that the plaintiff’s interpretation of the Fall Prevention Regulations is unmaintainable, although the same result would be reached in any event.
[27]Pearce and Argument (n 26) [30.3]. The same point is made by Pearce and Geddes (n 15) [4.21].
[28][1963] 3 All ER 180 (‘Gill’).
[29]Six feet six inches is much the same as 2 metres. Having regard to this and other similarities, there is every reason to suppose that the Victorian regime for fall protection (as in force from time to time) was partly modelled on the UK regulations dealt with in Gill.
[30]Gill (n 28), 183 (emphasis added).
[31](1976) 8 ALR 593, 598.
[32]See Pearce and Argument (n 26) [30.3] and the cases there cited. See also Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245, [36] and [40] (‘Westfield’).
As indicated above, the interpretation advanced by the plaintiff is to the effect that the Fall Prevention Regulations applied if the workplace task involved a risk of ‘the substantial part’ or ‘the substantial majority’ of a worker’s body falling more than two metres. However, in my view, such an interpretation is simply not open on the words of the Fall Prevention Regulations.
The definition of ‘fall’ does not mention ‘the substantial part’ or ‘the substantial majority’ of the relevant person’s body, or any like concept. It simply refers to ‘a person’s involuntary fall of more than 2 metres’. That expression, in its ordinary and natural sense, means a fall of the whole of the relevant person, not a fall of some particular part (whether ‘substantial’ or otherwise) of the person. As the first defendant submitted,[33] a person who is asked how far they fell does not respond by saying that their feet fell x metres but their head fell x plus y metres (y metres being the distance between the person’s feet and head). Rather, the height of the fall is described by reference to the vertical distance from the lowest part of the person’s body down to the level to which the person fell. So far as the text of the definition of ‘fall’ is concerned, there is no more reason to pick ‘the substantial part’ or ‘the substantial majority’ of the employee’s body than any other part or fraction of it. On its face, the defined expression plainly refers to a fall of a person from one level to a lower level, with a vertical distance of more than two metres between the levels.
[33]First defendant’s outline of submissions dated 15 September 2019 [8].
The plaintiff relies heavily on the proposition that legislation concerned with health and safety at work ‘should be construed so as to give the fullest relief which the fair meaning of the language used will allow’, taking those words from the judgment of Nettle JA (as his Honour then was) in R v ACR Roofing Pty Ltd[34] and citing also the references to those words made by Beach J in Boehm, by T Forrest J in his Honour’s interlocutory ruling in the present case and by Pearce and Argument in Statutory Interpretation in Australia.[35] However, as Nettle JA himself indicated in the relevant footnote in R v ACR Roofing Pty Ltd, the original source of the words is the (dissenting) judgment of Isaacs J in Bull v Attorney–General (NSW) (‘Bull’); and it is as well to read what Isaacs J there said with a little more context:
In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially… This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.[36]
Thus, according to Isaacs J, not only is the construction of the provision in question limited by reference to what the ‘fair meaning of its language will allow’, but also the ‘true signification of the provision’ is not to be ‘strained or exceeded’. This larger passage from the judgment of Isaacs J is also set out in Pearce and Geddes.[37]
[34]R v ACR Roofing (n 7), 203 [43] citing Bull (n 14), 384 (Isaacs J).
[35]See also Stratton v Van Driel (1997) 87 IR 151, [15]; Creighton and Rozen, Health and Safety Law in Victoria (Federation Press, 4th ed, 2017) [3.15] and [3.19].
[36]Bull (n 14), 384.
[37]Pearce and Geddes (n 15) [9.2].
The High Court returned to this topic recently in Deal.[38] Indeed, that was a case relating to the proper construction of the Occupational Health and Safety Regulations 2007 (Vic) themselves. The provisions directly in issue were those relating to manual handling tasks. One of those provisions was reg 3.1.2. Referring to that provision, the plurality (which included Nettle J himself) said:
Since reg 3.1.2 is remedial legislation passed for the protection of employees, it should be construed so as to afford to employees the protection which Parliament intended.[39] To that end, the width of the objects identified in s 2 of the Act, the breadth of the principles adumbrated in s 4 of the Act and the extent of the aims identified in reg 1.1.1 of the Regulations are indicative of a legislative purpose to afford relatively broad ranging protection to employees against the risks of hazardous manual handling tasks.[40]
As can be seen below, the footnote that is signified within that passage immediately after the words I have emphasized refers to the relevant part of the judgment of Isaacs J in Bull and to the relevant part of the judgment of the High Court in Waugh v Kippen.[41] Only a little further on in Deal,[42] and while still discussing the construction of the 2007 regulations by reference to their purpose, the plurality refers to the relevant part of R v ACR Roofing Pty Ltd itself.[43] Despite this, the plurality seemingly moves away from the language of ‘fullest relief etc.’, preferring the language of ‘the protection which Parliament intended’ and ‘relatively broad ranging protection’. Whether or not this signifies a substantive change of approach by the High Court, it serves as a useful reminder that the present task is one of construction of the words actually used in the legislation, not judicial legislation.[44]
[38]Deal (n 16), 295 [36]–[38], esp at [36].
[39]Bull (n 14), 384 (Isaacs J); Waugh v Kippen (n 14), 164-5 (Gibbs CJ, Mason, Wilson and Dawson JJ); Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32, 44 (Mason CJ); R v Irvine (2009) 25 VR 75, 91-2 [90]-[92] (Neave JA, Nettle JA agreeing at 77[1], Lasry AJA agreeing at 106 [160]).
[40]Ibid, 295 [36] (emphasis added) (citations in original but footnote header renumbered).
[41]Waugh v Kippen (n 14), 164-5.
[42]Deal (n 16), 295 [38].
[43]R v ACR Roofing (n 7), 202-203 [43].
[44]Much the same point is made expressly in Deal (n 16), 295 [37]. Cf Creighton and Rozen (n 35) [3.16]-[3.22].
As the first defendant points out,[45] in Deal the plaintiff was a primary school teacher who fell from the top step of an A-frame ladder while taking down papier mache displays from a pin-board on the classroom wall, and suffered a musculoskeletal disorder. She was 156cm tall. The top step of the ladder was 450mm above the floor. Thus the top of her head was more than two metres above the floor. She reached up above her head to unpin the displays. In her claim, she relied on the manual handling provisions, but not the fall prevention provisions, of the 2007 regulations. During the special leave application in the High Court, Keane J asked her counsel: ‘This would not have been a fall of more than two metres, would it?’ Her counsel answered: ‘No, not having regard to the height of the steps’. Neither was there any subsequent attempt in Deal to rely on the Fall Prevention Regulations.
[45]First defendant’s outline of submissions dated 15 September 2018 [15]-[16].
The very function of the definition of ‘fall’ in the Fall Prevention Regulations was to prescribe, and thereby to limit, the field within which all of the other provisions of those regulations were to operate. It was very important that an employer should be able to know in advance whether a particular risk of falling was covered by the Fall Prevention Regulations or not. It was also important to avoid undue overlap, and possible conflict, with other hazard-specific provisions of the Occupational Health and Safety Regulations 2007, such as the manual handling provisions. This point was made, in relation to the obverse situation, in Deal itself.[46]
[46]Deal (n 16), 298 [45].
As is noted in the plaintiff’s own submissions in this case, the Fall Prevention Regulations are concerned with the concept of ‘risk’. Where they apply, an employer can be in breach of them even if no fall occurs, just as with breaches of the general safety duties imposed by the Occupational Health and Safety Act 2004 (Vic) (‘the 2004 Act’).[47] Moreover, where the Fall Prevention Regulations apply, they impose detailed, positive obligations on the employer. Those obligations all relate specifically to the risk of falls from a height or into depth. The very nature of the obligations strongly indicates that the regulations were only intended to apply where there was a risk of a fall from a significant height or to a significant depth, with a concomitant risk of serious injury. Of course, the (Victorian) occupational health and safety legislation as a whole does not ignore the risk of lesser falls. Employers’ obligations in that regard are covered by the general duties imposed by the Act.[48] But most of the specific obligations under the Fall Prevention Regulations are fashioned by reference to the particular risk of bigger falls.
[47]See Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676, 681 [3], 699-700 [90]. Director of Public Prosecutions v JCS Fabrications [2019] VSCA 50 [24], [49].
[48]See especially Occupational Health and Safety Act 2004 (Vic) ss 20-23.
Thus, under reg 3.3.3 of the Fall Prevention Regulations, the employer must, at the outset, so far as is reasonably practicable, identify any task that involves a ‘fall hazard’.[49] Then, in sub-regs (1), to (5) of reg 3.3.4, a hierarchy of risk control measures is specified.
[49]Occupational Health and Safety Regulations 2007 reg 3.3.3.
First, under reg 3.3.4(1), if a risk of a ‘fall’ is involved, the employer must ‘ensure’ that the risk is controlled, so far as is reasonably practicable, by arranging for the task to be undertaken on the ground or on a ‘solid construction’. As defined in reg 3.3.4(6), ‘solid construction’ means an area that has (a) a surface that is structurally capable of supporting people, material and any other loads intended to be applied to it; and (b) barriers around its perimeter and any open penetrations to prevent a fall from the area; and (c) an even and readily negotiable surface and gradient; and (d) a safe means of access and egress.
If those measures are not reasonably practicable and a risk of a fall remains, then the employer must reduce the risk so far as is reasonably practicable by ensuring that a passive fall prevention device is used. The examples given of a ‘passive fall prevention device’ are ‘temporary work platform, roof safety mesh or guard railing’.[50]
[50]Occupational Health and Safety Regulations 2007 reg 1.1.5 (definition of ‘passive fall prevention device’).
Under reg 3.3.4(3), the next alternative required to be considered by the employer for implementation is a ‘work positioning system’. That means, as indicated above,[51] an ‘industrial rope access system’ (itself defined in detail, and defined partly by reference to the expression ‘performing work on a building or structure’) or a ‘travel restraint system’ (also defined in detail, and defined partly by reference to the expression ‘elevated surface’) or other equipment ‘that enables a person to be positioned and safely supported for the duration of the task being undertaken at height’.[52]
[51]See ibid (definition of ‘work positioning system’).
[52]Ibid (emphasis added).
Under reg 3.3.4(4), the next alternative is a ‘fall arrest system’. That is defined to mean ‘equipment or material or a combination of equipment and material that is designed to arrest the fall of a person’.[53] The examples given in the definition are ‘industrial safety net, catch platform or safety harness system (other than a travel restraint system).
[53]Ibid reg 1.1.5 (definition of ‘fall arrest system’).
If it is not reasonably practicable to comply with any of sub-regs (1), (2), (3) or (4) of reg 3.3.4, then the employer must reduce the risk so far as is reasonably practicable by ensuring that a fixed or portable ladder is used in accordance with reg 3.3.5 or an ‘administrative control’ is used. In turn, the use of only an ‘administrative control’ is regulated in some detail by reg 3.3.6 (see above).
Then there are the additional requirements of the Fall Prevention Regulations already mentioned.
Having regard to this context, there is nothing unduly ‘narrow’ about the first defendant’s interpretation of the definition of ‘fall’ in the Fall Prevention Regulations. It is a plain, simple and practical interpretation. By contrast, the plaintiff’s interpretation would lead to significant uncertainty and would be quite unworkable and impractical.[54] If the plaintiff were correct, the trigger for the application of the Fall Prevention Regulations would vary with the height of each worker who was engaged, or might at any time come to be engaged, in the relevant workplace task. Further, the specified standard of ‘more than 2 metres’ would, in effect, be reduced to around one metre in most cases, and even less in the case of a tall worker. That would be a very strange and inconvenient result, and plainly unintended.
[54]Courts seek to avoid an interpretation of legislation that would render it uncertain, unworkable or impractical where an alternative, reasonable interpretation is available: Shannon Realties Ltd v Ville De St Michel [1924] AC 185, 192-193 (Privy Council); Gill (n 27) 183; Hecar Investments No 6 Pty Ltd v Lake Macquarie Council (1984) 53 LGRA 322, 323; Sheffield City Council v Yorkshire Water Services Ltd [1991] 1 WLR 58, 71; Westfield (n 32) [36] and [40]; Pearce and Geddes (n 15) [2.39]; Bennion, Statutory Interpretation (Butterworths, 3rd ed, 1997) 752-763, pts 313, 314.
Hence I simply do not accept that, by adopting the plaintiff’s interpretation of the Fall Prevention Regulations, the importance of the regulations being given a construction which was easily understood and met by all employers would be addressed.
Implicitly, the plaintiff’s counsel seemed to go even further, suggesting that, because T Forrest J had noted[55] that the plaintiff had claimed to have lifted an arm to steady himself on the lip of the bin, his Honour was indicating that the relevant calculation would always or sometimes need to take into account the length of the worker’s arms, especially if the worker might be required, or might be inclined, to lift one or both of their arms above their head as part of the workplace task. I do not accept that T Forrest J meant that. In any event, such a requirement would only reduce the specified standard further - often to nil - and would further complicate, to the point of impossibility or absurdity, the employer’s compliance obligations.[56]
[55]Meade v Nillumbik (n 1) [32].
[56]Cf Hinton Demolition Pty Limited v Lower (No 2) [1971] 1 SASR 512, 528; Westfield (n 32) [34], [40]; Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 587 [120] (Heydon J).
I see no merit in the plaintiff’s resort to the fact that some falls may not be absolutely vertical in themselves. Under the Fall Prevention Regulations, the thing that must be guarded against is the risk of a fall of more than 2 metres, not the risk of travelling more than 2 metres overall in some incident involving or including a slip or a slide or an angular fall. Generally speaking, the effect of gravity and the concomitant seriousness of the risk of injury increase in direct proportion to the vertical distance fallen. If the specified distance of ‘more than 2 metres’ is not to be measured vertically, then how is it to be measured? There is no sensible alternative. It is plainly implicit in the Fall Prevention Regulations that the risk to be guarded against under those particular regulations is the risk of a fall of more than 2 metres, measured vertically.
Extrinsic material
To the extent, if any, that extrinsic material assists in the interpretation of the Fall Prevention Regulations in the present respect, it tends only to confirm the interpretation that I would otherwise reach.
The RIS for the 2007 regulations (‘the 2007 RIS’) refers in section 5.4 to a report published by WorkSafe in 2000 which analysed past injuries caused by falls and related data concerning compensation claims. The report led to the introduction in 2003 of the predecessor of the Fall Prevention Regulations. The 2007 RIS mentioned that the report categorised claims into ‘falls from less than two metres’, ‘falls from more than two metres’ and ‘falls from ladders’; that the analysis revealed that ‘injury severity for falls from more than two metres’ had a significantly higher cost per claim than other categories, and more than three times the average injury severity; that the construction industry had the most falls of any industry and the most severe injuries from those falls; and that most of the claims resulting in falls ‘from’ more than two metres occurred in the construction industry.[57] The 2007 RIS went on to say:
The [2003 regulations] use a height threshold of more than two metres, because they require the use of a specific hierarchy of control, which may not be relevant to all tasks performed at lower heights. This height threshold focuses the Regulations on fall risks that have the potential to cause the most serious injuries. Claims data, however, includes all falls from one level to another, regardless of the height. Manual analysis of individual claims is required to estimate the number of claims involving a fall of more than two metres and to assess any changes in the severity of injuries.[58]
It was further noted in the 2007 RIS that the definition of ‘fall’ in the 2003 regulations was being maintained. Reading all of this together, it is evident that the author of the 2007 RIS considered that a ‘fall’, as defined in both the 2003 regulations and the 2007 regulations, meant a fall of a person from one level down to another level, and that the reference to ‘more than 2 metres’ was a reference to the vertical distance between the two levels.
[57]2007 RIS s 5.4 (emphasis added).
[58]Ibid.
In addition, as the first defendant points out,[59] the 2007 RIS reveals that one reason why the definition of ‘fall’ was maintained in the (2007) Fall Prevention Regulations was because it was aligned with a national standard applicable to the construction industry, namely the National Standard for Construction Work.[60]
[59]First defendant’s outline of submissions dated 15 September 2019 [22]-[26].
[60]Declared by the National Occupational Health and Safety Commission in accordance with s 38 of the National Health and Safety Commission Act 1985 (Cth) on 27 April 2005. That standard defined ‘High-risk construction work’ to include ‘construction work where there is a risk of a person falling two metres or more’.
The first defendant also sought to rely on a WorkSafe compliance code entitled ‘Prevention of falls in general construction’ that was issued in September 2008 to provide guidance on how to comply with, among other things, the 2007 regulations. The diagrams and illustrations in the code are in keeping with the proposition that it is the distance from the lowest part of the worker’s body to the ground that is relevant to determine the fall distance. Compliance codes are provided for in Part 12 of the 2004 Act.[61] However, I do not regard it as legitimate to take into account for present purposes the compliance code on prevention of falls in general construction because, whether or not it is the kind of document that would otherwise be admissible for interpretative purposes, it was not published until 2008, ie after the Fall Prevention Regulations were made. For that reason alone, it should not be taken into account.[62]
[61]See, generally, Victorian WorkCover Authority v Stoddart [2015] VSC 149 (J Forrest J).
[62]See Hunter Resources Ltd v Melville (1998) 164 CLR 234, 241; Transport Accident Commission v Clarke [1994] 1 VR 117 at 121-122; Pearce and Geddes (n 15) [3.25].
However, a certain WorkSafe Code of Practice that was approved by the relevant Victorian Minister well before the making of the (2007) Fall Prevention Regulations, and a certain judgment of the Court of Appeal given in 2006 that refers to that Code of Practice, may both be thought to assist the first defendant’s construction of the (2007) regulations. In R v CommercialConstruction Group Pty Ltd,[63] a builder’s labourer had been injured when he fell through a hole in a roof in May 2002. The employer was convicted under the Occupational Health and Safety Act 1985 of contravening its general safety duties under that Act. It appealed unsuccessfully to the Court of Appeal. The Court said that the content of the employer’s duty had been ‘crystal clear’ as a result of the Code of Practice (No 10) – Safe Work in Roofs, which had been approved by the Minister under s 55(1) of the 1985 Act ‘for the purposes of providing practical guidance to employers’ and which had been in operation in 2002 at the time of the accident.[64] The Code had prescribed that precautions such as safety mesh and fall arrest systems should be used or considered wherever work was to be carried out within 2 metres of any edge on a new or existing roof ‘from which any person could fall a distance of 1.8 metres or more’.[65] The Court said that, because of the prescription in the Code of Practice, precautions should have been taken for any work at ‘a height of 1.8 metres or more’. The Court noted that the worker had fallen ‘a distance of 3 metres’. In those circumstances, no issue arose as to the construction of the Code of Practice equivalent to the issue of construction of the (2007) Fall Prevention Regulations that arises here. However, in a footnote to the judgment, the Court of Appeal compared the prescription in the Code of Practice with the provisions of the 2003 fall prevention regulations (which had been enacted after the accident), noting that the objective of those regulations was said to be ‘to prevent incidents… involving falls of more than two metres’.[66] It seems to me that the Court regarded the ‘more than 2 metres’ provision of the 2003 regulations as being similar to the corresponding provision in the Code of Practice, which in turn referred (as noted above) to a roof ‘from which any person could fall a distance of 1.8 metres or more’. The language of the Code of Practice was at least highly suggestive that the relevant measurement was from the level of the roof to the level of the ground below; and it seems to me that the Court of Appeal was reading the 2003 regulations in a corresponding fashion. If that is right, then the Code of Practice or the decision of the Court of Appeal or both of them may be said to support the first defendant’s construction of the (2007) Fall Prevention Regulations, given that the definition of ‘fall’ was unchanged between the 2003 regulations and the 2007 regulations.
[63](2006) 14 VR 291.
[64]Ibid 330 [39]-[40].
[65]Emphasis added.
[66]Ibid.
As mentioned above, the 2007 regulations (including the Fall Prevention Regulations) were repealed and substantially re-enacted in 2017, including (again) the definition therein of ‘fall’. The plaintiff referred in his written submissions to the RIS for the 2017 regulations. However, he did not point to anything in the 2017 RIS itself that assisted his argument. Nor can I discern anything in it that would do so.
As is also mentioned above, Mr Murdoch QC submitted orally that the maintaining in the 2017 regulations of the same definition of ‘fall’ represented an endorsement or acceptance of the interpretation adopted by Beach J in Boehm of the corresponding definition in the 2003 regulations, and should lead to the adoption of the same interpretation of the corresponding definition in the (2007) Prevention of Falls Regulations.
I do not accept that submission either. It falls at several hurdles.
First, as indicated below, I simply do not agree that Beach J held in Boehm that it was enough that there be a risk that the ‘substantial part’ or the ‘substantial majority’ of a person’s body might fall more than 2 metres.
Secondly, even if I am wrong in my understanding of what Beach J held, that would not necessarily mean that the author of the 2017 regulations should be taken to have approved the decision and to have intended to use the words in question according to the meaning given to them in that decision. It is true that there is a presumption that when legislation is re-enacted after being judicially interpreted the legislature is to be assumed to have approved that interpretation.[67] However, the validity of the presumption has been doubted, and it is not universally applied.[68] It is not applied in relation to consolidating legislation. Strictly speaking, the 2017 regulations may not be consolidating regulations but, for present purposes, they are in a comparable category. They were required to be enacted because of the ‘sunsetting’ of the 2007 regulations pursuant to the Subordinate Legislation Act 1994 (Vic). The main purpose of the ‘sunsetting’ provisions is to compel an examination of whether, or what to extent, the subordinate legislation remains of continued relevance and usefulness.[69] There will not necessarily be a policy review of past decisions on particular provisions. In the present case, there was no reference to Boehm (or to the issue that arose in Boehm) in the 2017 RIS or in any other relevant extrinsic material (such as the explanatory memorandum for the 2017 regulations). In any event, as the Court of Appeal held in Williams v Oataway,[70] the re-enactment presumption ‘should not lead the Court to perpetuate the construction of a statutory provision which it considers to be erroneous’. As already indicated I consider the plaintiff’s suggested construction of the Fall Prevention Regulations to be plainly erroneous.
[67]See Pearce and Geddes (n 15) [3.43]-[3.49]. The presumption extends to subordinate legislation: see Dillon v Gorge (1941) 64 CLR 253, especially at 266 (Williams J); Pearce and Argument (n 26) [30.1].
[68]Pearce and Geddes (n 15) [3.45], [3.48]; cf [3.49].
[69]Pearce and Argument (n 26) [2.50], [11.10].
[70](2005) 11 VR 529, 540 [20].
Thirdly, Boehm was decided in 2011. So, of course, it was not known to the author of the Fall Prevention Regulations (the Governor in Council) in 2007 when those regulations were made. Even if Boehm should be understood as the plaintiff would have it understood, and even if, for that reason, the 2017 regulations should be interpreted in accordance with the plaintiff’s submissions, still that would not be any or any sufficient reason to interpret the (2007) Fall Prevention Regulations as the plaintiff would have the Court interpret them.[71]
Distinguishing Boehm
[71]Deputy Federal Commissioner of Taxation (SA) v Elder’s Trustees and Executor Co Ltd (1936) 57 CLR 610, 625-626; Transport Accident Commission v Clarke [1994] 1 VR 117 at 121-122; Pearce and Geddes (n 15) [3.35].
In my view, as mentioned above, the judgment of Beach J (as Beach JA then was) in Boehm does not assist the plaintiff. Boehm simply does not stand for the plaintiff’s proposition. It is distinguishable both as to the law and, more significantly, as to the facts. In these respects, I respectfully differ from some of the observations made by T Forrest J about Boehm in his Honour’s ruling of 18 June 2018. On the other hand, if I had thought that Boehm did actually stand for the proposition that the provisions in question fell to be applied in the manner suggested by the plaintiff, then, while accepting the principles of judicial comity as advanced by the plaintiff, I would have respectfully declined to follow Boehm.
The regulations that were in question in Boehm were the Occupational Health & Safety (Prevention of Falls) Regulations 2003 (Vic) (‘2003 regulations’). They were made under the Occupational Health & Safety Act 1985 (Vic) (as amended). Hence they fell to be interpreted and applied in accordance with that Act. By contrast, the 2007 regulations were made under the Occupational Health & Safety Act 2004 (Vic). The 2004 Act was no mere reproduction of the 1985 Act. According to one learned commentator, the 2004 Act:
…heralded a new era in occupational health and safety regulation in Victoria. The Act introduced the most significant changes in 20 years. It boasts significant increases and maximum penalties, new duties and new Court orders.’
The reforms follow a comprehensive review of the Act which was undertaken by Chris Maxwell QC prior to his Honour’s appointment to the Victorian Court of Appeal. The reforms follow a wave of reform in this area across Australia, starting with New South Wales, followed by Queensland, the ACT and most recently Western Australia. The new Act incorporates many of the features of the reforms introduced in other jurisdictions while maintaining the central provisions and approach of the 1985 Act.[72]
[72]Michael Tooma, Tooma’s Annotated Occupational Health & Safety Act 2004 Victoria (Thomson Reuters, 2005) preface. Other commentators have been a little less effusive: see Creighton & Rozen, Occupational Health & Safety Law in Victoria (Federation Press, 3rd ed, 2007) preface, pp viii–ix.
The new Act contemplated the making of some regulations of a different kind than had been contemplated by, or made under, the old Act. Section 158(1)(a) of the new Act authorised the making of regulations for or with respect to ‘the way in which duties or obligations imposed by the Act or the regulations are performed.’ There had been no precise equivalent in the 1985 Act. It is true that s 27 of the 1985 Act had provided that, where the regulations made provision for or in relation to any of the general duties or obligations to which pt 3 of the 1985 Act applied, compliance with the regulations was deemed to be compliance with the general duty or obligation.[73] However, neither the 1985 Act nor any regulation made under it (including the 2003 regulations) contemplated or imposed mandatory specific methods of compliance with the general safety duties and obligations. By contrast, mandatory methods were prescribed by the combined operation of s 158(1)(a) of the 2004 Act, reg 1.1.7 of the 2007 Regulations (see above) and those particular provisions of the 2007 Regulations that carried ‘Act compliance notes’. Within the (2007) Fall Prevention Regulations, there were several such provisions: see, for example, regs 3.3, 3.3.4(1), 3.3.4(2), 3.3.4(3), 3.3.4(4) and 3.3.4(5) (all set out above). By contrast, s 47 of the 1985 Act provided that breach of a regulation was (itself) an offence. There is no equivalent of s 47 in the 2004 Act.[74]
[73]There was (and remains) a similar section in the 2004 Act, namely s 152.
[74]See, generally, Creighton and Rozen (n 35) [8.31]-[8.36].
The 2003 regulations had an object provision relating specifically to the prevention of falls, namely reg 101, which Beach J quoted. There was no equivalent in the 2007 regulations.
The 2003 regulations defined ‘fall hazard’. The 2007 regulations did not.
Regulation 201 of the 2003 regulations, which Beach J also quoted, required the employer to ‘ensure’ that any task that an employee was required to undertake at a workplace that involved a fall hazard was identified. That obligation was stated in absolute terms. Under the 2007 regulations, the corresponding obligation (imposed by reg 3.3.3) was merely that an employer ‘must, so far as is reasonably practicable, identify’ any such task.
Reg 202 of the 2003 regulations, to which Beach J also referred, required the employer to undertake a risk assessment in relation to any fall hazard identified under reg 201. There was no corresponding provision in the 2007 regulations. Nor did the 2007 regulations contain any provision corresponding to the previous reg 203, which provided for generic risk assessments.
Regulation 204 of the 2003 regulations required an employer to ‘eliminate’ the risk of a fall in relation to a task involving a fall hazard unless it was ‘not practicable’ to do so, in which event the risk was to be reduced so far as was practicable. Beach J set out reg 204 in full. It was that particular provision which his Honour held had been breached in Boehm. By contrast, the word ‘eliminate’ did not appear in the corresponding provision of the 2007 regulations, namely reg 3.3.4.
In these various respects, the legislation that was applicable in Boehm was in some ways stricter, in other ways less strict, than the legislation applicable in the present case. There are, at the very least, numerous differences of form and expression. On the other hand, I recognise that the general context is broadly similar and that the critical provision, namely the definition of ‘fall’, is identical.
However, even if the legislative differences in themselves are not sufficient to distinguish Boehm, it seems to me that the factual differences, either alone or in combination with the legislative differences, are sufficient. It is to the factual differences between the cases that I now turn.
In Boehm the workplace task was required to be done at a height of approximately 2.5 metres above the ground.[75] Mr Boehm was required to put an iron cover over a hot water service. The hot water service was attached to one of the walls of the premises in which Mr Boehm was working, in an internal corner. The work had included the removal of a skillion roof. As the roof had been removed, the hot water service was potentially exposed to the elements. Mr Boehm was required to attach pieces of wood to the walls and then to hammer nails through the iron cover and into the pieces of wood affixed to the walls, at a height of approximately 2.5 metres.[76] In attempting to carry out this work, the plaintiff was standing one step below the top of a ladder, at a height of 1.7 metres above the ground. The ladder was placed at a 45 degree angle to the corner of the iron cover furthest away from the internal corner. To perform the work, Mr Boehm had to lean over the length of iron which measured approximately 700 millimetres x one metre. Mr Boehm said that, in performing the work, he could not have reached where he was required to reach if he had stood on a step lower than the step he was standing on. Beach J found that what probably happened was that Mr Boehm, being on the first step down from the ladder, was reaching over the iron in order to perform his task and the ladder became unsteady as a result of his position and he fell. The description which Mr Boehm gave of his fall was that ‘his feet went up in the air and then I fell to the ground’.
[75]Boehm (n 6) [32].
[76]Ibid [34].
Importantly, the evidence indicated that Mr Boehm’s employer owned portable scaffolding which, had it been available on site, might well have been used by the plaintiff for the job. The judgment does not indicate the height at which the scaffolding would have been erected had it been available, but it is conceivable that one (safer) method of doing the job would have been to do it using scaffolding erected at a height of more than 2 metres.
It follows that, on the facts of Boehm, it may be that there was a risk inherent in the task that the whole of Mr Boehm’s body would fall more than 2 metres, measured vertically. It is true that his Honour did not expressly articulate the matter in that way. However, that may be due to the fact that, apparently, both parties before his Honour concentrated on the manner in which the task was actually attempted and on the distance which Mr Boehm actually fell, rather than on the risks that were presented by the nature of the task. In any event, when his Honour came to express his conclusion on this point, he said:
In this case, affixing the iron above the hot water service at a height of 2.5 metres involved a ‘fall hazard’ within the meaning of the Regulations. That is, there was a potential to fall more than two metres. Regulation 204 required the defendant to ensure that the risk of such a fall was eliminated or, if it was not practicable to eliminate the risk, then the employer was required to ensure that the risk was reduced as far as was practicable.[77]
[77]Ibid [55].
It is particularly noteworthy that Beach J did not, anywhere in his Honour’s judgment, expressly rule that it was sufficient that ‘the substantial part’ or ‘the substantial majority’ or ‘most’ (or any other particular fraction) of the worker’s body was at risk of a fall of more than two metres.
Having regard to all of the facts of Boehm, I would not regard it as standing for the proposition that there may be a ‘fall’ as defined in the regulations even where the workplace task does not involve any risk that the whole of the body of the person will fall more than 2 metres, measured vertically. I would not regard Boehm as standing for the proposition that it is enough that the majority or some substantial part of the person’s body would be at risk of falling more than 2 metres.
Conclusion
In accordance with the reasons set out above, I ruled that the plaintiff was unable to rely on the regulations in question.
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