Breach of statutory duty, more so a breach of the Occupational Health & Safety Regulations, is an extremely common particular of negligence in personal injury proceedings.  The Court of Appeal's direction in this proceeding goes a long way to remove uncertainty between what is manual handling and further, what is meant by hazardous manual handling.  In line with the majority, an element of force is required, or alternatively the load be unstable or unbalanced, difficult to grasp or hold.  What is clear is that a load may meet the definition of hazardous manual handling despite being particularly light – as in this case a papier mache caterpillar.

The claim

The Appellant, Miss Kathryn Deal, injured her right knee on 19 September 2007 in the course of her employment as a primary school teacher at St Peter Apostle Primary School, Hoppers Crossing, Victoria.  She brought her claim for Common Law damages before a County Court judge and jury in September 2014.  Her claim in negligence was framed as a breach by her employer of their non-delegable duty of care.  Particulars of negligence provided – 

  • further and in the alternative, the Plaintiff's injuries were caused by reason of the breach of the Defendant of its duties under the Occupational Health & Safety Regulations 2007;  
  • the injuries were caused by reason of the negligence of the Defendant, its servants and agents…..(r) failing to comply with the regulations made pursuant to the Occupational Health & Safety Regulations 2004.

At first instance, Ms Deal was unsuccessful in her claim with the jury determining that there was no negligence by the Defendant.  On Appeal Ms Deal alleged the judge wrongly ruled that the cause of action for breach of statutory duty, was on the facts, unavailable.

Reasons and decision at first instance

The Defendant took issue with the Plaintiff's Particulars of negligence, specifically Regulation 1.1.5 which defined hazardous manual handling and manual handling.

Hazardous manual handling was defined to include:

  1. manual handling having anything of the following characteristics:
    1. repetitive or sustained application of force;
    2. repetitive or sustained awkward posture;
    3. repetitive or sustained movement;
    4. application of high force being an activity involving a single or 

repetitive use of force that would be reasonable to expect that

a person in the workforce may have difficulty undertaking;

  1. manual handling of live persons or animals;
  2. manual handling of unstable or unbalanced loads or loads that are difficulty to grasp or hold; 

Manual handling means any activity requiring the use of force exerted by a person to lift, lower, push, pull, carry or otherwise move, hold or restrain any object.

Submissions on behalf of Ms Deal focussed upon:

  • to be manual handling, the handling did not require the use of great force. It could encompass the application of even minimal force;
  • the load which Ms Deal was carrying was unstable, balanced and difficult to grasp or hold. 

Counsel for the Respondent contended:

  • the task at hand was not manual handling as there was no application of force at all. 
  • the task which Ms Deal was performing did not fall within paragraph (c) of the definition of hazardous manual handling.

It was accepted and significant that Ms Deal's oral evidence included that she had "been handling small, light props" when she suffered injury.

Further, when questioned "why did it require two hands?" she replied "because they were quite heavy – because the mache made them heavy, not heavy as in very heavy, but for the cardboard they were on, it was heavy, and they sort of buckled in the middle.  So if I held them on one handed, I wouldn't be able to grasp what I had in my hand".

His Honour distilled the issue for determination:

"The issue raised here is whether, on the facts as now disclosed before this jury, there is a claim in law for breach of statutory duty."

The judge gave due consideration whether in the circumstances manual handling was evident noting "the whole of the activity, that is the unpinning of the props, the movement of the props from the board and the lowering of the props down onto the ground to be stored, I find to be properly defined as being an activity, and the force involved in lowering that by way of her holding the three items, all of such activity, albeit being performed on a ladder, should be classified to come within the meaning of manual handling."

When turned to the question of hazardous manual handling his Honour noted "all of the definitions contained in parts (a) and (b) thereof would be inapplicable to this case.  The particular definition open to the jury…is that set out in part (c), being the 'manual handling of unstable or unbalanced loads or loads that are difficult to grasp or hold'.  Upon the evidence as I perceive it, the Plaintiff, as a matter of law, could not put this case to the jury.  There was, I find, albeit manual handling occurring …no circumstances where it could be said that such load was an unstable or unbalanced load or a load that was difficult to grasp or hold."

As such, His Honour removed from the jury the Plaintiff's cause of action for breach of statutory duty.  The matter proceeded to verdict with a jury returning a no negligence finding.

Court of Appeal discussion and findings

By judgement of 24 July 2015, the Victorian Supreme Court, Court of Appeal dismissed Ms Deal's appeal.

The majority, Warren and Ashley JJA, whist sympathetic to Ms Deal did not find a fault with His Honour's conduct of the proceeding at first instance.  In short, the majority confirmed His Honour's initial finding that the task undertaken by Ms Deal did fall within the definition of manual handling, was correct.

The majority however, diverged with the decision at first instance when concluding whether the task at hand met the definition of hazardous manual handling.  Ms Deal submitted there was evidence of hazardous manual handling which fell within paragraph (c) of the definition of that term.  The Respondent in short submitting there were "no circumstances where it could be said that the load was unstable".  The majority concluded that if His Honour did apply the correct test, it was very clear he erred in concluding that there was "no evidence" upon which the jury could reasonably find Ms Deal was engaged in hazardous manual handling at the critical time.  Assuming what Ms Deal was undertaking involved manual handling, then it followed there was evidence that it involved handling an unstable load and, possibly, one that was difficult to hold.  It was immaterial that the load was unquestionably light.

Despite the diversions of opinion, between the Appeal Court and judge at first instance, the majority however, did not upset the trial judge's ruling given the relationship, or lack thereof, between the hazardous manual handling and injury.  His Honour at first instance, noting "the particular incident came about because, given the way she held the load, her vision was impaired.  As a result, she failed to make the appropriate step, and that is the reason why this accident occurred".

In the majority's opinion, His Honour's ruling was correct in that regard.

Digby AJA dissenting, concluded likewise with the majority that the task at hand was properly construed as manual handling and hazardous manual handling, for similar reasons.  Digby however believed it arguable a breach of regulation 3.1.1 existed (the matter not dealt with by the majority) and in particular an arguable failure to include in its 'risk control recommendations' the person undertaking the job / task of hanging paper and cardboard displays be assisted by another member of staff.  In his view, it is arguable the breaches of the regulations to which he referred were the cause of, or materially contributed to Ms Deal's injury.

Furthermore, Deal's claim was not stripped of real prospects of success because the displays which she was handling were not heavy or awkward to carry.  This is because the Regulations are arguably engaged by reason of the relevant load being unstable or unbalanced or difficult to grasp in the circumstances.  Accordingly, Ms Deal's cause of action for breach of statutory duty should, in this circumstance, have been allowed to be considered and decided by the jury.