Dear Colleagues;
The decision of the High Court of Australia in Deal
v Father Pius Kodakkathanath [2016] HCA 31 (24 August 2016) http://eresources.hcourt.gov.au/downloadPdf/2016/HCA/31 is
a rare decision on this tort action from the HCA. It deals with the details of the Victorian safety regulations and how they applied to a particular case. In this sense it is a helpful clarification of the operation of the regulations. But I think it is significant
for a couple of other reasons noted below.
The facts involved a Victorian primary school teacher (at a suburban Catholic school- for interesting reasons to do with the legal personality of the Roman Catholic Church her employer is actually the local parish priest.)
She was descending on a step ladder from removing some student work which had been pinned up on the wall, and slipped, injuring herself. She claimed in both negligence and under the tort of Breach of Statutory Duty (BSD). At trial the judge removed the BSD
claim from the jury because he thought that the Regs were not applicable. Her claim in common law negligence failed. The Vic CA in Deal
v Kodakkathanath [2015] VSCA 191 (24 July 2015) http://www.austlii.edu.au/au/cases/vic/VSCA/2015/191.html by 2-1 upheld the
trial judge’s ruling on the point, though there was a very strong dissent from Digby AJA (quoting ODG list members at paras [334]-[335] of his decision.) The majority thought that risk of what had happened to her
was not sufficiently “associated with” the “generic nature” of the manual handling task she was carrying out, for the purposes of reg 3.1.2(1) of the Occupational Health and Safety Regulations 2007
(Vic).
On appeal now the High Court has unanimously overturned the CA majority and sent the matter back for the BSD claim to be dealt with by the CA. The words “associated with” should not be read as having some heightened degree
of causal connection. The meaning of the term was said to be simply that :
[41] … the risks of musculoskeletal disorder to which reg 3.1.2 is directed are confined to risks of musculoskeletal disorder that arise from, and thus are caused by, something which is intrinsic to the hazardous manual handling task.
But contrary to the majority of the CA, the risk of falling when dealing with an “unbalanced load”, which is explicitly said in the regulations to be part of the definition of “hazardous manual handling tasks”, was sufficiently “associated
with” what was being done, that it would have been open to the jury to find that a breach of the regulations had occurred- see [48]. There was also some discussion as to whether it was “reasonably practicable” for the employer to have identified this risk,
which the court said it was. Some other steps could also have been taken to deal with the risk, which were not taken. That didn’t mean, of course, that the plaintiff would necessarily succeed- but it was a case which should have been allowed to go to the jury.
The case is also significant, in my opinion, for other reasons. It is an interesting example (of which there are now a number, especially in Victoria) of a possible case in BSD succeeding where a claim in common law negligence fails.
(For those who are interested, my colleague Ann Apps and I have written about this, in the Australian context and relating to the new “mostly uniform” safety laws in Australia- see Neil
J Foster and Ann E Apps. "The neglected tort — Breach of statutory duty and workplace injuries under the Model Work Health and Safety Law" Australian
Journal of Labour Law Vol. 28 Iss. 1 (2015), at:
http://works.bepress.com/neil_foster/93/ . While Victoria has not adopted the uniform WHSA,
the wording of the provisions of Victorian and model laws are so similar that this decision will have an impact on the interpretation of the model laws.)
And the case does not suggest, contrary to some previous academic commentary, that the BSD tort is defunct or not applicable in
Australia any more. It is part of a long line of cases applying statutory safety provisions to provide a civil action to injured workers, which in my view those acting for such workers should be more ready to use.
Regards
Neil
ASSOCIATE PROFESSOR NEIL FOSTER
Newcastle Law School
LLB/LLB(Hons) Program Convenor
O: MC177, McMullin Building
T: +61 2 4921 7430
E: neil.foster@newcastle.edu.au
W: http://www.newcastle.edu.au/profile/neil-foster
LLB/LLB(Hons) Program Convenor
O: MC177, McMullin Building
T: +61 2 4921 7430
E: neil.foster@newcastle.edu.au
W: http://www.newcastle.edu.au/profile/neil-foster
The University of Newcastle (UON)
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