The interplay between civil liability and occupational health and safety legislation

Deal v Father Pius Kodakkathanath [2016] HCA 31 On 24 August 2016, the High Court of Australia reaffirmed the impact of occupational health and safety legislation on civil liability: Deal v Father Pius Kodakkathanath [2016] HCA 31. Background The applicant, Kathryn Deal, whilst working as a teacher at the respondent’s school (School), fell from a stepladder as she removed a papier mâché Hungry Caterpillar from a pin-board. One of Ms Deal’s knees was injured by the fall. Ms Deal sued the School alleging her injury was caused by the negligence and breach of statutory duty of the School. The statutory duty was said to arise from, amongst other things, regulation 3.1.2 of the Occupational Health and Safety Regulations 2007 (VIC) (regulation), which relevantly requires an employer to ensure that the risk of a musculoskeletal disorder “associated with” a “hazardous manual handling task” is eliminated as far as is reasonably practicable. First Instance The proceeding was heard by a judge and jury. The judge determined that the regulation did not apply to the circumstances of Ms Deal’s injury and therefore Ms Deal’s case on breach of statutory duty could not be put to the jury. In coming to that view, the judge assessed that the evidence was incapable of supporting a finding that the Ms Deal was engaged in a “hazardous manual handling task”. Without needing to consider Ms Deal’s case on breach of statutory duty and breach of the regulation as particulars of negligence, the jury returned a verdict for the School. Ms Deal appealed to the Court of Appeal of Victoria Court of Appeal By majority, the Court of Appeal dismissed the appeal. Although the majority accepted that the activity Ms Deal was performing was “manual handling” and “hazardous manual handling”, they also determined that the risk of musculoskeletal disorder was not sufficiently connected with the “hazardous manual handling” and, even if it was, it was not reasonably practicable for an employer to conclude that Ms Deal’s role would “or even might” involve “hazardous manual handling”. The majority gave a narrow interpretation to the regulation, particularly “associated with”, by construing it to require a "close connection" between the risk of harm and the generic nature of the relevant task. In this case, they determined that it was the manner in which the task had been performed, and not the task itself, that caused the fall. Important to the majority’s reasoning was the potential breadth of civil and criminal liability for employers should the phrase “associated with” be interpreted broadly. Ms Deal sought and obtained special leave to appeal to the High Court of Australia. High Court The High Court allowed Ms Deal’s appeal, determining that the claim for breach of statutory duty should have been put to the jury. In making this determination, the High Court resolved a range of interpretation issues, in doing so, rejecting the narrow interpretation of the regulation given by majority of the Court of Appeal. Instead, the High Court gave the regulation a beneficial interpretation consistent with the purpose of occupational health and safety legislation to protect employees. The High Court rejected the construction of the phrase “associated with” to require a “close connection” to the relevant task, and, in effect, determined the phrase to instead mean “arising from”, which is far broader. Implications The High Court’s decision is consistent with the liberal interpretation Courts are willing to give to occupational health and safety legislation. It also serves as a timely reminder to carefully consider claims for breach of a statutory duty in personal injury proceedings that are based on occupational health and safety legislation. Such claims are often viewed as a side issue to the perceived primary claim of negligence, but this decision shows that a breach of statutory duty claim may be far more problematic for insurers and their insureds than an action in negligence. The High Court only considered the relevant Victorian legislation and, unlike most other states and territories, Victoria has not adopted the uniform work health and safety legislation. However, the Occupational Health and Safety Regulations are in substantially similar form to their equivalents in the uniform legislation. Therefore, the High Court’s decision will be, at the very least, informative for the interpretation of the occupational health and safety legislation in all states and territories Date: 5 September 2016