Clifford Gouldson Lawyers

High Court broadens hazardous manual handling obligations on employers

Print Version

12/09/2016

In the recent decision of Kathryn Deal v Father Pius Kodakkathanath [2016] HCA 31, the High Court has ruled that when identifying and controlling the risk of injury associated with a hazardous manual handling task, there does not need to be a “close connection” when considering the generic nature of the task and the risk of injury. 
 
This ruling broadens an employer’s obligation to ensure that it (the employer) identifies and takes steps to control or eliminate the risks of injury when a person is performing a hazardous manual handling task. 
 
Accordingly, employers need to be very mindful that, so far as is reasonably practicable, they implement appropriate control measures to take into consideration any risks or hazards that may be associated with the undertaking of a task. 
 
The Facts
 
A Victorian primary school teacher injured herself when she fell from a step ladder whilst removing large papier mâché displays from a pin-board on the classroom wall.  Relevantly, she was descending backwards on the step ladder whilst carrying a number of displays in both her hands to prevent the displays from bending.  As she was stepping down the ladder, she missed a step and fell from the ladder injuring her knee in the process. 
 
The teacher alleged that her injury had been caused by her employer’s negligence and that the employer had breached a number of regulations set out in the Occupational Health and Safety Regulations 2007 (Vic) (the Regulations).  She sought damages for her injury. 
 
It was a requirement of the Regulations that, so far as reasonably practicable, the employer:
 

  • identify hazardous manual handling tasks;
  • reduce or eliminate, the risk of a ‘musculoskeletal disorder’ associated with a hazardous manual handling task; and  
  • review any risk control measures.

 
Hazardous manual handling tasks included the manual handling of unstable loads or loads that are difficult to hold.
 
What did the Courts say?
 
At first instance, the County Court of Victoria held that the teacher was not engaged in a hazardous manual handling task.

On appeal, the Court of Appeal held that there was evidence that she was engaged in a hazardous manual handling task, but said that the words “associated with” set out in regulation 3.1.2 required that there be a “close connection” between the generic nature of the task and the risk of injury.  The Court of Appeal held that there was not a sufficiently close connection between the task and the risk of injury.  In addition, the majority held that it was not reasonably practicable for an employer, considering the task of taking down the displays, to identify that the task involved hazardous manual handling.

The teacher appealed to the High Court. The High Court did not agree with the Court of Appeal’s view that the Regulations require that there be a “close connection” and that it was not reasonably practicable for the employer to conclude the task involved hazardous manual handling.  Consequently, the High Court upheld the teacher’s appeal.

Issues before the High Court

The High Court noted that it was not disputed that the teacher had suffered a musculoskeletal disorder within the meaning of the Regulations and that the teacher was engaged in a hazardous manual handling task at the time of the injury.

The High Court had to consider:
 

  1. was the risk of a musculoskeletal disorder, a risk “associated with” the hazardous manual handling; and
  2. if it was, was it reasonably practicable for the employer to identify the risk and take steps to eliminate or reduce the risk.


The High Court held that the Regulations (in particular, regulation 3.1.2) ought to be construed to give “broad ranging protection to employees against the risks of hazardous manual handling tasks” because of the aims and remedial nature of the legislation.
 
The High Court found that regulation 3.1.2, did extend to the risk of a musculoskeletal disorder caused, in whole or part, by a task meeting the description of hazardous manual handling.  As you may recall, hazardous manual handling included the manual handling of unstable loads or loads that are difficult to hold. The High Court held that it would have been open to a jury to find that the risk of the teacher falling from the step ladder, whilst carrying out the hazardous manual handling task, was a risk of a musculoskeletal disorder “associated with” that hazardous manual handling task.
 
In light of the above, the High Court then looked at whether it was reasonably practicable for the employer to identify the risks with carrying out this task. 
 
The High Court held that it was open for a jury to find that it was reasonably practicable for an employer to identify the risks associated with removing the displays from the pin-board with a step ladder and to take steps to minimise or eliminate the risk of this hazardous manual handling.  Further, the employer had identified that the putting up of the displays was considered a hazardous manual handling task.  However, it had not identified any risks with taking down the displays.  

Accordingly, the High Court said that a jury would be entitled to take this evidence into account when determining if it was reasonably practicable for the employer to identify risks with the taking down of the displays.
 
The High Court also commented that there may be different ways of performing tasks and that this ought to be taken into consideration by the employer when identifying the risks associated with performing a task.
 
Further, the High Court said that “the fact that an employee acts without full regard for his or her personal safety in performing an otherwise authorised task does not of itself preclude a finding that the resultant risk is one which could reasonably practicably be identified and eliminated or reduced”.
 
In light of the above, the appeal to the High Court was allowed and the case was remitted back to the Court of Appeal for determination.  We will update you when a decision is handed down by the Court of Appeal.
 
Tips for Employers
 
When undertaking a risk assessment of a task:
 

  • take the time to think about the different ways in which a task may be performed to enable you to identify the potential risks; and
  • ensure that your risk assessments identify the risks and the measures to eliminate or reduce the risks through the entire cycle of the task (i.e. not just putting up displays, but also how these displays ought to be removed).  


If you have any questions about this alert, please do not hesitate to contact a member of our Workplace Law team.
 

Deal v Father Pius Kodakkathanath [2016] HCA 31at [36].

Deal v Father Pius Kodakkathanath [2016] HCA 31at [54].

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