Medved v Dunlop Olympic Ltd trading as Dunlop Slazenger

[1991] HCATrans 124

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S144 of 1990

B e t w e e n -

MILK.A MEDVED

Applicant

and

DUNLOP OLYMPIC LTD trading as

DUNLOP SLAZENGER

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

Medved 1 10/5/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MAY 1991, AT 10.06 AM

Copyright in the High Court of Australia

MR B.J. GROSS, OC:  May it please the Court, I appear with

MSC.A. RIMMER and MR G.B. CURRAN for the applicant. (instructed by Geoffrey Edwards & Co)

MR M.D. IRELAND, QC:  May it please the Court, I appear with

my learned friend, MR J.W. DODD for the respondent.

(instructed by Hunt & Hunt)

MR GROSS: Your Honours, might I hand up four copies of the

materials. Your Honours, industrial safety

legislation aimed at preventing injuries to workers
from lifting or carrying injuries in factories has,

historically, fallen into two separate and distinct

classes, these distinctions being observed in the

various State jurisdictions of this country apart

from Western Australia.

MASON CJ: It sounds like the beginning of an address at

some academic institution.

MR GROSS:  Your Honours, it is important in this case to

understand the error made by the Court of Appeal involved confusing one class of legislation with the other and applying case law applicable to one

as in the English situation to the New South Wales

situation which falls into a separate category.

The first class of case into which New South

Wales falls is a prohibition measured simply by the

mass or weight of the object with fixed limits

being prescribed where juniors or women are lifting

or carrying the object. There the critical facts

are the weight of the object and the age and sex of

the worker.

The second category involves a general

prohibition not to be found in the New South Wales

legislation on a worker of any age or sex, lifting

or carrying an object so heavy that the task is

likely to injure him. This involves a case by case

risk, including the load, the working environment,	analysis of the interplay of the factors bearing on	the physique and fitness of the worker and the
movement required.

The majority judgment of the Court of Appeal

read down this legislation so that the clear words

of section 36(1) ultimately derived a meaning

governed by, as it were, the effort or impact on an

individual worker. In short, they translated the

weight of the object, which is the central

criterion under section 36, into the exertion by

the worker which is the major factor in looking at
the other class of legislation. Your Honours will

see from the summary of legislation that we have

handed up that New South Wales, Victoria,

Queensland and Tasmania have legislation in the

Medved 2 10/5/91

first class, involving statutory maximums measured

by the weight or mass of the load. It is true in

relation to both classes one has to show it is what

was required or permitted by the employer, but

putting aside that general factor, four States do

have these maxima which are conveniently summarized

in the document which I think is about five sheets
over, headed Statutory Maximum Loads for Manual

Lifting and various State's loads prescribed as

maxima are set out. Your Honours will see there is

some uniformity in relation to this pattern.

The second class prohibiting lifting or

carrying weights so heavy as to be likely to cause

risk of injury exists in Queensland, Tasmania and

South Australia. That pattern is also followed in

the English legislation which, I think, was

section 72(1) of the English Factories Act which

was construed by the House of Lords in Brown's case

which the majority judgment found so persuasive in

looking at the New South Wales Act.

Can I take Your Honours to page 24 of the book

and Your Honours will see at line 15 the majority

judgment refers to the similarity between the

English provision and the New South Wales

provision, recites the English provision which is:

A person shall not be employed to lift, carry

or move any load so heavy as to be likely to

cause injury to him.

Your Honours, there a foreman sent a female worker

to paint and move a cage on her own without

requiring any help or telling her to get some. At

page 25 of the book in the judgment of the majority

Lord Kilbrandon is quoted, and indeed a passage is

underlined there, to this effect:

if the foreman had taken either of these

steps, and the appellant had nevertheless decided

to move the (cage] alone, she would have been

employed to move half the weight, not the whole

weight and section 72 would not have been

contravened". (our emphasis)

Your Honours, there is no reason in principle why

that passage should be underlined, let alone

receive emphasis. The majority judgment goes on to

say at line 22 of page 25:

In our opinion despite the differences the two

sections are similar in scope and identical in

purpose and this unanimous decision of the

House of Lords is therefore strong persuasive

authority thats 36(1) is directed not to the

weight of the object alone, but to the share

Medved 3 10/5/91

of the weight that a given employee is allowed

or required to lift.

Your Honours, that proposition - - -

MASON CJ:  Mr Gross, we will not trouble you further at this

stage. Why should not we grant special leave,

Mr Ireland?

MR IRELAND:  Your Honours, the issue is squarely put by the

Court of Appeal at page 23 of the appeal papers, at the top of that page:

Put shortly, the question was whether the

section prohibited the lifting or carrying of
an object with a weight greater than

specified, however may persons shared that

weight in carrying the object, or whether the

prohibition was upon allowing or requiring a

person employed in a factory to lift a weight

beyond that specified unaided of, if aided, to

lift a weight which would subject that person

to the stress of a greater weight than that

permitted by the section.

His Honour the primary judge held that the jury should decide whether the appellant's injury

was causally related to a breach of the section

determined by reference to the appellant's share of
the weight being lifted, rather than the whole of

the weight. That was, of course, the view that the

Court of Appeal adopted. The contrary view was

that expressed by His Honour Mr Justice Mahoney and

the construction placed upon the section by

His Honour, in our submission, is flawed and impractical. Might I take Your Honours to page 34

line 20. His Honour dealt with the grammatical

construction at line 16.

As a matter of grammar, the term

"greater" qualifies "mass". But the obvious

intent is that it qualify the weight specified

in the subsection, viz, 16 kilograms.

Therefore that which the subsection is

intended to convey is that no relevant person

should lift or carry by hand "a mass (thing)

of a weight greater than 16 kilograms". This
is the literal meaning of the words used in
the subsection.

Your Honours, it is our submission that the

grammatical restructuring by His Honour to achieve

what he describes as the literal meaning of the words is never the less related to the relevant

person or, more precisely, no relevant person.	The
construction contended for really requires the

Medved 4 10/5/91

introduction of the word "participate" so that the

section - - -

GAUDRON J:  Does it, because the section is directed to

authorization and permitting, Mr Ireland, and even
if you authorize participation, one can foresee all

sorts of possibilities in which you thereby

authorize the lifting or carrying of a weight in

excess of.

MR IRELAND:  Yes. Your Honour. But in order to produce the

result that His Honour contends for the section

would need to be understood as meaning, "no person

employed in a factory shall be allowed or required

to participate in lifting or carrying by hand a

greater mass than". Now, had this been the

legislative intention, that is to say make a

complete prohibition, then it would be easy enough

to make that apparent. His Honour's interpretation

relies greatly and is, in our submission, on

simplification, and it is our submission it is an

over-simplification and that that effectively means

that the adult male person, which is the class of

person His Honour has overlooked entirely in his

construction of the section, who has no prohibition

placed upon him could never then seek any

assistance from a person in a prohibited category.

GAUDRON J: That raises all sorts of - your submission raises

all sort of impracticalities, does it not, as to

how you divide?

MR IRELAND: That is precisely the point. His Honour goes

for simplification - - -

GAUDRON J: His Honour's approach is quite simple; yours is

really quite complicated.

MR IRELAND:  On the contrary, Your Honour. Our submission

is the way in which it has been construed - - -

GAUDRON J:  Do we apportion "a mass" between a man and woman

on your submission on the basis of 50:50 or on the

basis of the proportion of the weights they are

allowed to lift?

MR IRELAND: No, Your Honour. If the prohibition is such

that no person of the restricted category can

participate in a lift in excess of the statutory

limit, then the unrestricted person, the male over

18 years of age, could never then seek any

assistance from a person in a restricted category.

Now, the highest prohibition is that of 18

kilograms, so that if a male worker who is in an

unlimited category were required, for example,

to lift something that weighed 19 kilograms, he

would, by the construction contended for by His

Medved 5 10/5/91

Honour, be precluded from seeking any assistance

from somebody in a precluded category such as, for

example, his apprentice. And that is the type of

impracticality that this construction results in;

that no trades person, such as for example a

carpenter or a plumber or a mechanic lifting a part

of machinery - a carpenter in particular lifting

pieces of timber and being assisted by an

apprentice - if that piece of timber weighed 19

kilograms or more, the apprentice could not be

asked to lend him a hand.

So that is the kind of oversimplification

that, in our contention, His Honour has sought to

place upon this section and that as a question of
practicality, it just cannot be seen to exist and

has never, in fact, existed.

MASON CJ:  The problem, Mr Ireland, is that the question is

an arguable question, as evidenced by the division

of opinion in the Court of Appeal. Not only is it
an arguable question, but it is the kind of
question that arises not only in New South Wales
but elsewhere and it does seem that the majority in
the Court of Appeal drew upon assistance in the

English decisions which, on the face of it, do not

seem to be precisely identical in terms of matters

to be taken into account.

MR IRELAND:  I am grateful to Your Honour. The reliance

that the court placed on the English decision was,

in essence, to identify that those authorities speak about assistance and if the construction

contended for by my learned friend is to be

accepted, assistance is irrelevant in the

proceedings and that was the point that the English

authorities were referred to in respect of, that is to say it does not matter that you have assistance.

If you have a 20 kilogram pipe, for example, a pipe that weighs 20 kilograms, it would not matter that

you had 20 people carrying it, on this

construction, if in fact the prohibition is to run

and one of those persons happens to be in the

restricted class, then there is a breach of the

statute. And that, in our submission, is a

ludicrous construction.

Those, with respect, are our submissions.

MASON CJ:  Thank you, Mr Ireland. The Court need not

trouble you in reply, Mr Gross. There will be a

grant of special leave in this case.

AT 10.22 AM THE MATTER WAS ADJOURNED SINE DIE

Medved 6 10/5/91