Surmon v Herald and Weekly Times (Ruling No 2)

[2011] VSC 607

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. SCI 2010 02221

KIM SURMON	Plaintiff
V
HERALD & WEEKLY TIMES	Defendant

---

JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2011
DATE OF RULING:	17 November 2011
CASE MAY BE CITED AS:	Surmon v Herald & Weekly Times (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2011] VSC 607

---

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

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards SC and Mr M Walsh	Clark Toop & Taylor
For the Defendant	Mr R Stanley QC and Ms M Britbart	Minter Ellison

HIS HONOUR:

1. In this matter, the plaintiff claims damages for injury arising out of her employment with the defendant between 2003 and 2009.  The plaintiff’s claim is based in negligence and in breach of statutory duty.  The claim for breach of statutory duty is based on alleged breaches by the defendant of Regulations 13, 14 and 15 of the Occupational Health and Safety (Manual Handling) Regulations 1999 and the regulations contained in Part 3.1 of the Occupational Health and Safety Regulations 2007.

1. After the close of evidence, an issue arose as to the correct construction of Regulation 15(1) of the 1999 Regulations.  That issue concerned whether the phrase “risk of a musculoskeletal disorder”, in that regulation, was confined to a risk arising out of “hazardous manual handling”, or whether it related to any risk at all arising out of the performance of “manual handling” (but not necessarily hazardous manual handling).  Mr Stanley QC, who appears with Ms Britbart, for the defendant, argued in favour of the former proposition as the correct construction of the regulation.  Mr Richards SC, who appears with Mr Walsh on behalf of the plaintiff, has argued in favour of the latter proposition as constituting the correct construction of the regulation.

1. After completion of argument, I delivered a brief oral ruling, in which I decided that the word “risk” in Regulation 15(1) is not tied to a risk deriving from a hazardous manual handling task.  In that ruling, I stated brief reasons for my conclusion.  I undertook to provide more thorough reasons for the conclusion, which I now provide in this ruling.

1. For the purposes of brevity, I shall not set out the text of Regulations 13, 14 and 15.  Mr Stanley made two principal submissions in favour of the construction of Regulation 15(1), for which he contended.  First, he submitted that Regulation 15 is part of a scheme, consisting of Regulations 13, 14 and 15.  Regulation 13 requires an employer to ensure that any task undertaken or to be undertaken by an employee “involving hazardous manual handling” is identified.  Regulation 14(1) provides that if a task involving hazardous manual handling is identified, the employer must ensure that an assessment is made to determine whether there is any risk of musculoskeletal disorder affecting an employee.  In that context, Mr Stanley submitted that the reference to “risk of musculoskeletal disorder” in Regulation 15 is, necessarily, a reference to a risk of musculoskeletal disorder associated with the hazardous manual handling task identified in accordance with Regulation 14(1).  Secondly, Mr Stanley submitted that, if the words “any risk” did not have such a limitation, they would be so extraordinarily broad that they would not have any sensible content.

1. The submissions made by Mr Stanley have some force.  As I observed in my oral reasons, my initial impression, on reading the Regulations, favoured the construction contended for by Mr Stanley.  However, as I adumbrated in my brief oral ruling, I consider that there are three reasons why such an instruction of Regulation 15(1) should not apply.

1. In essence, those reasons are as follows.  First, of course, the words of Regulation 15(1) are plain.  They require that an employer must ensure that “any risk of a musculoskeletal disorder” affecting an employee occurring is either eliminated, or if it is not practicable to eliminate it, is reduced so far as is practicable.  The Regulation is not expressed to be limited, in any way, to risks associated only with hazardous manual handling tasks.  By contrast, Regulations 13 and 14 specifically refer only to tasks involving hazardous manual handling.  The absence of any express reference to hazardous manual handling, in Regulation 15, in that context, militates in favour of the conclusion that Regulation 15 was not intended to apply only to risks of musculoskeletal disorder associated with the performance of hazardous manual handling tasks.

1. Secondly, other provisions, contained in the 1999 Regulations, do use the phrase “any risk of musculoskeletal disorder” without limiting it to risks associated with hazardous manual handling tasks.  In that context, I refer to Regulation 9(1) and Regulation 12.  Indeed, Regulation 12 requires consultation with the health and safety representative, where (a) identification or risk assessment of a task involving “hazardous manual handling” relates to a task involving manual handling that may affect health or safety;  or (b) when undertaking control of “risk”, which relates to a task involving manual handling.  The dichotomy between sub-paragraphs (a) and (b) further favours the proposition that the Regulations were not designed purely to protect workers against injury from hazardous manual handling tasks;  rather, they are designed to protect workers from the risks of manual handling tasks, including hazardous manual handling tasks.

1. Thirdly, the Regulations themselves are designed to protect workers in the workplace from the risk of injury to their health.  It is important social legislation.  The courts have, historically, emphasised that such legislation should not be given any narrow construction.

1. In response to Mr Stanley’s second submission, it is clear that Regulation 15(1) does not refer to “any risk” at all; it applies to risks of “musculoskeletal disorder”.  Regulation 5 defines “musculoskeletal disorder” to mean an injury arising from manual handling.  Accordingly, Regulation 15(1) specifically is confined to risks of musculoskeletal disorder arising from manual handling.  Thus, I do not consider that the construction, contended for on behalf of the plaintiff, would have the effect that Regulation 15(1) is so wide in its import as to be devoid of any sensible content.

1. Finally, I note that in his recent decision in Lindsay-Field v Three Chimneys Farm Pty Ltd[1], J. Forrest J, albeit by obiter dictum, construed Regulations 13, 14 and 15 in the manner contended for by the plaintiff.  That view, expressed by a judge who has significant experience in this area of the law, lends support to the conclusions which I have otherwise reached.

   [1][2010] VSC 436 [99].

1. For those reasons, I rejected the submission, made on behalf of the defendant, that the phrase “any risk of a musculoskeletal disorder”, in Regulation 15(1), was confined to a risk associated with the performance of hazardous manual handling.