Deal v Father Pius Kodakkathanath [2016] HCA 31: Hazardous Manual Handling OHS
Wednesday 24 August 2016 @ 11.40 a.m. | Industrial Law | Torts, Damages & Civil Liability | Trade & Commerce
Today (24 August 2016) in Deal v Father Pius Kodakkathanath [2016] HCA 31 the High Court, in a unanimous decision, has allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria (see Deal v Kodakkathanath [2015] VSCA 191 (24 July 2015)). In reaching its decision, the High Court has held that the majority of the Victorian Court of Appeal erred in finding that the primary judge was correct in removing from the jury's consideration allegations that: “. . . the respondent had breached its statutory duties under the Occupational Health and Safety Regulations 2007 (Vic)” (the OHS Regulations).
Background and Facts
Ms Deal (the appellant) was an employee of the respondent and worked as a primary school teacher. In 2007, the appellant injured her knee while using a step ladder to remove papier mâché displays from a pin board on the wall of a classroom. The appellant while descending backwards down the step ladder was carrying multiple displays with both hands, the displays were prone to buckling if not supported, as a result the applicant’s view of the step ladder was obscured and she missed a step while descending, falling to the floor, injuring her knee.
The applicant started proceedings in the County Court of Victoria (see Judge McInerney - 2 September 2014) alleging that her injury was caused by the respondent's negligence or breach of statutory duty. The OHS Regulations required employers, so far as reasonably practicable, to:
- identify tasks involving hazardous manual handling (reg 3.1.1);
- control the risk of a musculoskeletal disorder associated with a hazardous manual handling task (reg 3.1.2); and
- review any risk control measures (reg 3.1.3).
Importantly, the phrase “hazardous manual handling tasks” included the manual handling of unstable loads, or loads that are difficult to hold.
In the County Court
Judge McInerney, the primary judge, determined that the applicant was not engaged in hazardous manual handling and, as such, the appellants reliance on the OHS Regulations could not be put to the jury for consideration and the trial should proceeded on the question of negligence only. The jury then returned a verdict for the respondent and the appellant appealed to the Court of Appeal.
The Court of Appeal
The majority in the Court of Appeal (see [2015] VSCA 191 (24 July 2015)) found that, although the appellant was engaged in hazardous manual handling, there was no "close connection" between the risk of harm and the injury, such that, the injury could be said to be "associated with a hazardous manual handling task" and further, the majority also found that it was not reasonably practicable for an employer considering the generic task of removing the displays to identify the task as one involving hazardous manual handling.
In the High Court
By grant of special leave, the appellant was able to appealed to the High Court. The key ground for appeal being that:
The Court of Appeal was wrong in holding that the risk of injury, or the musculoskeletal disorder, to the appellant was not a risk “associated with” the hazardous manual handling tasks in which she was engaged, within the meaning of reg 3.1.2 of the OHS Regulations.
The respondent has filed a Notice of Contention which claimed that any contravention of reg 3.1.1, 3.1.2 or 3.1.3 of the OHS Regulations, properly construed, did not confer upon the appellant a private right of action in damages for breach of statutory duty
In its decision, the High Court has allowed the appeal, finding that the Court of Appeal had misconstrued the phrase "associated with a hazardous manual handling task" in reg 3.1.2 of the OHS Regulations. It found that reg 2.1.2 does extend to the risk of a musculoskeletal disorder caused, in whole or part, by a task meeting the description of hazardous manual handling. Having decided that reg 3.1.2 was relevant, the High Court then held it would have been open to the jury to conclude that the risk of the appellant falling from the step ladder, while carrying displays that were unstable or difficult to hold, was, a risk "associated with a hazardous manual handling task". Further, the High Court held that there was evidence from which the jury could have inferred that it was reasonably practicable for the respondent to identify the task as involving hazardous manual handling, and that the respondent could have taken steps to eliminate or control the kind of risk which eventuated. The matter was remitted to the Court of Appeal.
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Sources:
Deal v Father Pius Kodakkathanath [2016] HCA 31 (24 August 2016)
Deal v Kodakkathanath [2015] VSCA 191 (24 July 2015)
