The requirement for Victorian employers to control risks associated with hazardous manual handling tasks does not require a “close connection” between the relevant task and risk, the High Court of Australia has ruled.
A primary school teacher fell from a step ladder while removing papier mâché displays from a pin-board. In particular, she was descending backwards while carrying multiple displays with both hands to prevent them from buckling. She missed a step and fell, injuring her knee in the process.
The teacher sought damages for the injury, alleging that the injury had been caused by her employer’s negligence and alleged breaches of reg 3.1.1, 3.1.2 and 3.1.3 of the Occupational Health and Safety Regulations 2007 (Vic). These regulations required an employer to identify hazardous manual handling tasks, control the risk of a musculoskeletal disorder “associated with” a hazardous manual handling task, and review any risk control measures.
Trial and appeal
At trial, the County Court of Victoria ruled that the teacher was not engaged in a hazardous manual handling task.
On appeal, the Court of Appeal decided by majority that the teacher was performing a hazardous manual handling task, but that there was no “close connection” between the generic nature of the relevant task and the risk of the injury sustained. The majority had further stated that it was not reasonably practicable for an employer considering the relevant task to conclude that the task would involve hazardous manual handling.
High Court’s decision
The High Court unanimously allowed the teacher’s appeal.
The High Court observed that it was not in dispute that the teacher had suffered a “musculoskeletal disorder” within the meaning of reg 1.1.5. It was also not in dispute that the teacher was performing a “hazardous manual handling” task when removing the displays from the pin-board using the step ladder.
The issues that had to be determined by the High Court were:
- whether the risk of the musculoskeletal disorder suffered by the teacher could properly be conceived as a risk “associated with” the hazardous manual handling task, and
- if yes, whether it was open to the jury to infer that it was reasonably practicable for the employer to identify the risk and take steps to eliminate or reduce the risk.
1. Was the risk of the musculoskeletal disorder associated with the hazardous manual handling task?
On the first issue, the High Court ruled that reg 3.1.2 had to be construed broadly to afford employees the protections that parliament had intended. In doing so, the judges examined the objects and principles of the Occupational Health and Safety Act 2004 (Vic) and the aims set out in reg 1.1.1.
Given that the evident object of reg 3.1.2 is to guard against the risks of hazardous manual handling tasks, and that hazardous manual handling tasks are defined in terms of the force necessary to lift, lower, push, pull, carry, or otherwise move, hold or restrain an object, needing to be applied repetitively or for sustained periods of time, being substantial, or needing to be applied to loads that for one reason or another are unpredictable, unstable, unbalanced or difficult to hold, the natural and ordinary implication of the text of reg 3.1.2 is that it is confined to risks which arise from or, in other words, are caused by one or more of those hazardous manual handling task force factors.
The High Court judges suggested that the majority in the Court of Appeal may, in contrast, have been influenced by what they thought was desirable policy when requiring a close connection between the task and the risk of a musculoskeletal disorder.
2. Reasonable practicability of identifying the risk
The High Court decided that it was open to the jury to infer that it was reasonably practicable for the employer to identify the relevant risk and to take steps to eliminate or reduce the risk.
The High Court explained the test for determining whether it was reasonably practicable to identify the risk as follows:
The test is whether it was reasonably practicable for the respondent to identify the task of removing displays from the pin-board with a step ladder as involving hazardous manual handling. This is an objective question of fact which, in this case, was for the jury to decide.
The judges also made the following points on this issue:
- if a task can be performed in several ways, the employer is responsible, so far as is reasonably practicable, for identifying and guarding against the risks potentially associated with each of those ways, and
- the fact that an employee performs a task without full regard for their personal safety does not preclude a finding that the risk was one that could reasonably practicably be identified and controlled.
The High Court additionally noted that the respondent had identified the task of putting up displays on the pin-board using a step ladder as a hazardous manual handling task. The jury was accordingly entitled to take into account this evidence and consider it reasonably practicable to identify the risks associated with removing the displays.
The case was remitted back to the Court of Appeal.
Kathryn Deal v Father Pius Kodakkathanath  HCA 31