The High Court has recently clarified the operation of the manual handling provisions in the Victorian Occupational Health and Safety Regulations 2007 (Vic) (the Regulations) in Deal v Kodakkathanath [2016] HCA 31 and held that a jury should have been allowed to hear and consider an injured employee’s claim that her employer breached the Regulations.

Background

In 2007, a primary school teacher injured her knee while using a step ladder to remove papier mâché displays from a pin-board in the classroom. The teacher was descending backwards down the ladder, carrying multiple displays with both hands when she missed a step and fell.

The teacher brought proceedings in the County Court claiming damages for pain and suffering alleging that her injury was caused by her employer’s negligence and breach of statutory duty. The breach of statutory duty claim was based on the Regulations which require employers in Victoria, so far as is reasonably practicable, to identify tasks involving hazardous manual handling (reg 3.1.1), to control the associated risks of a musculoskeletal disorder (reg 3.1.2) and review any risk control measures (reg 3.1.3).

‘Hazardous manual handling’ is defined in the Regulations to include the manual handling of unstable loads, or loads that are difficult to hold. The teacher claimed that she should have been instructed to pass the displays down to an assistant and she hadn’t been warned of the risks of falling from step ladders or of using ladders while working alone.

The County Court held that the teacher was not engaged in hazardous manual handling.  Therefore, the teacher’s breach of statutory duty claim wasn’t put to the jury. The trial proceeded on the question of negligence only and the jury found that the employer was not negligent. The teacher appealed.

Court of Appeal decision

The Court of Appeal held that the teacher was in fact engaged in ‘hazardous manual handling’. However, the majority held that it was the way the teacher performed the task (carrying multiple displays and descending backwards), rather than the generic nature of the task itself (removing displays from a pin board) which caused her injury. Therefore, the risk of injury was not “associated with” the hazardous manual handling task within the meaning of the Regulation. The teacher appealed to the High Court.

High Court decision

The High Court overturned the Court of Appeal’s decision.  It held that the employer’s obligation to control the risks of a musculoskeletal disorder associated with a hazardous manual handling task (under regulation 3.1.2) extends to the risk of musculoskeletal disorder caused, in whole or part, by a task which involves hazardous manual handling as defined in the Regulations. The teacher’s task in this case involved manual handling of unstable or unbalanced loads or loads that are difficult to grasp or hold and as such involved hazardous manual handling.

Consequently, it would have been open to the jury to conclude that the risk of the teacher falling from the step ladder while carrying displays that were difficult to hold, was a risk associated with a hazardous manual handling task.

The High Court remitted the matter to the Court of Appeal.

Implications for employers

Employers must identify tasks involving hazardous manual handling and control, so far as is reasonably practicable, the associated risks of a musculoskeletal injury. This decision makes it clear that these provisions will be interpreted broadly to capture a wide range of manual handling tasks and injuries associated with those tasks. Any risk control measures put in place by organisations should be reviewed regularly. Employers face the prospect of both civil and criminal liability for failing to identify and act upon risks associated with hazardous manual handling tasks.

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