Rascovici v Think Laser Pty Ltd

1. Prior to empanelment, the defendant raised an objection for the first time that the plaintiff is not as a matter of law entitled to the benefit of the protection of the relevant regulations. It was agreed that I should rule on the objection before proceeding to empanel a jury. In order to do so, I heard evidence from the plaintiff together with cross-examination of him for the purpose of enabling me to understand the factual matrix of the injury and if it attracts or not the benefit of the relevant regulations. I also heard legal submissions from counsel.

1. The plaintiff was employed by the defendant as an installer of certain cladding material. On 13 January 2021 he was engaged in the application of that type of sheeting at a residential premise in Endeavour Hills.
2. In the course of the plaintiff's evidence the following account of the accident emerged:

(a) At the time of his fall, the plaintiff was working on applying cladding sheeting to a left hand vertical column that ran from the first level porch and balcony up to the underneath of the second level balcony and can be identified in "Photo B" of Attachment A to these reasons and balcony area of the premises.

(b) The first level of the premises was accessed from the ground level of the property by two sets of steps.

(c) A blue upturned plastic tub onto which was placed a plank of wood sat on the first level front porch, abutting the left side vertical column to which the plaintiff was required to apply cladding.

(d) The combined height of the blue tub and wooden plank was approximately 40 centimetres.

(e) The height of the first level porch from which the plaintiff was working was approximately 3 metres or more above ground level.[1]

(f) The task the plaintiff was attempting to perform required him to reach up to 2 metres to install screws to affix cladding.[2]

(g) The plaintiff is 1.67m tall.

(h) The plaintiff used the upturned plastic tub and wooden plank to be able to reach the height of 2 metres to install the screws to affix the cladding. The plaintiff was using his right hand to hold the Alucobond in position. There was a co-worker holding the cladding sheet in place at the same time.[3]

(i) The plaintiff fell when he was facing the front of the vertical column and using his left hand to put the screws up and when trying to reach, or position himself to be able to do so, he pushed the wooden plank with his right leg on the back of the wooden plank and lost his balance.[4]

(j) When the plaintiff fell -

(i) he hit his knee on the step;[5]

(ii) the first point of contact was his right knee on the step;[6]

(iii) the first point of impact was his left foot on the first step;[7]

(iv) the second point of impact was the right knee hitting the same step (the first step).[8]

(v) The plaintiff slid down a number of the steps and perhaps to the landing that separated the first and second set of stairs.

1. The plaintiff pleads a breach of regulation 43 and 44 of the Occupational Health & Safety Regulations 2017.
2. Chapter 1 of the Occupational Health & Safety Regulations 2017, Part 1.1 sets out the objectives of the regulations relevantly in these terms:

_(a) to further the objects of the Occupational Health and Safety Act 2004 by - _

(i) providing for health and safety in relation to workplaces and hazards, activities and things at workplaces; and

(iv) specifying training requirements for certain persons engaged in construction work at workplaces; and

1. Part 3.3 of the regulations is titled - Prevention of Falls. Division 1 contains the following regulations:

1. A fall in this Part means an involuntary fall of more than 2 metres (see the definition of fall in regulation 5).

2. Section 21 of the Act imposes duties on employers to, so far as is reasonably practicable, provide and maintain a working environment that is safe and without risks to health. This includes managing risks associated with falls of 2 metres or less. In accordance with section 20(1) of the Act, employers must eliminate risks associated with falls of 2 metres or less so far as is reasonably practicable and, if it is not reasonably practicable to eliminate the risks, reduce those risks so far as is reasonably practicable, having regard to the matters set out in section 20(2) of the Act.

fall, in Part 3.3 (Prevention of falls), means a person's involuntary fall of more than 2 metres'.

1. Regulation 43 is contained in Division 2 of Part 3.3 and states:

An employer must, so far as is reasonably practicable, identify any task that an employee is required to undertake at a workplace that involves a fall hazard including -

(a) on any plant or structure being constructed, demolished, inspected, tested, maintained, repaired or cleaned; or

(b) on a fragile, slippery or potentially unstable surface; or

(c) using equipment to gain access to an elevated level or to undertake the task at an elevated level; or

(d) on a sloping surface on which it is difficult to maintain balance; or

(e) in close proximity to an unprotected edge; or Authorised by the Chief Parliamentary Counsel

(f) in close proximity to a hole, trench, shaft or pit that is of sufficient dimensions to allow a person to fall into the hole, trench, shaft or pit.

1. Regulation 44 is headed Control of risk and states:

(1) An employer must, so far as is reasonably practicable, eliminate any risk associated with a fall at the workplace.

An employer might arrange for an employee or contractor who is required to undertake a task that involves a risk associated with a fall to undertake the task on the ground or on a solid construction that has no risk associated with a fall. (See the definition of solid construction in regulation 5.)

(2) If it is not reasonably practicable to eliminate a risk associated with a fall, the employer must reduce the risk so far as is reasonably practicable by using a passive fall prevention device.

Examples of a passive fall prevention device are given in the definition of that term in regulation 5.

(3) If it is not reasonably practicable to reduce a risk associated with a fall in accordance with subregulation (2), the employer must reduce the risk so far as is reasonably practicable by using a work positioning system.

See the definition of work positioning system in regulation 5. Authorised by the Chief Parliamentary Counsel

(4) If it is not reasonably practicable to reduce a risk associated with a fall in accordance with subregulation (2) or (3), the employer must reduce the risk so far as is reasonably practicable by using a fall arrest system.

Examples of a fall arrest system are given in the definition of that term in regulation 5.

(5) If it is not reasonably practicable to reduce a risk associated with a fall in accordance with subregulation (2), (3) or (4), the employer must reduce the risk so far as is reasonably practicable by using -

(a) a fixed or portable ladder in accordance with regulation 45; or

2 Part 4 of the Act sets out the duty of the employer to consult with employees, including in respect of making decisions about the measures to be taken to control risks to health or safety. This consultation must involve the health and safety representative (if any). See also regulation 2

1. The defendant submitted that the 2017 regulations do not apply to the facts of this case.
2. Mr Clarke identified two authorities of single justices of the Supreme Court that have addressed the regulatory provisions associated with falls of two metres or more. The first decision is that of Beach J (as he then was) in Boehm v Strongback Pty Ltd ("Boehm"),[9] and that Mr Clarke accepted on its face if applicable would suggest that the equivalent 2017 regulations may apply to the plaintiff's circumstances. However, Mr Clarke submitted that I should prefer and apply the reasoning expressed in the ruling of Cavanough J in Meade v Nillumbik Australia Pty Ltd & Anor ("Meade"),[10] with the result that the 2017 regulations governing the risk of falls of two metres or more do not apply to the plaintiff's circumstances.

1. In Boehm, Beach J said that the words, "fall of two metres" are ordinary English words and not to be construed in a narrow or pedantic sense. His Honour said at paragraph 54 that "If, on the whole of the evidence it can be fairly said that a person fell more than two metres, then such a fall is of a kind covered by the Regulations".
2. In order to understand the basis of my decision it is necessary to set out the relevant facts in both Boehm and Meade.
3. The facts referred to by Beach J in Boehm are set out at paragraphs 23 to 35 of his Honour's judgment:

"On 8 February 2007, the plaintiff was working at a site in Grieves Street, Fitzroy. The worksite was relatively small (being described by Mr MacQuire as 2.4 metres x 5 metres in dimension). The work involved renovating part of the house on the site. This work included the removal of a skillion roof.

There was a hot water service attached to one of the walls of the premises in an internal corner (the roof over this corner having been removed). The hot water service had a flue coming out of the top of it. As the roof had been removed, the hot water service was potentially exposed to the elements.

On the day of the accident, Mr MacQuire asked the plaintiff to put a cover over the hot water service.

It is not necessary to resolve the factual dispute between the plaintiff and Mr MacQuire as to precisely what was said when Mr MacQuire asked for a cover to be placed on the hot water service.

The plaintiff gave evidence that he affixed pieces of wood to each wall. The accident occurred whilst the plaintiff was attempting to affix the piece of iron he had cut to the pieces of wood. At the time of the accident, the plaintiff said he was standing on the first step down from the top of a 2.1 metre aluminium A-frame ladder. This ladder was owned and provided by the defendant. The plaintiff said that as he proceeded to put the third nail in, it did not pierce the iron. The nail "fell over and [the plaintiff] proceeded to pick it up again, and at the same time the ladder just flexed and twisted and bucked [the plaintiff] off". The plaintiff then said that his "feet went up in the air and then [he] flipped back down on [his] back across [floor joists which were sitting on top of an old floor, which floor joists ran parallel to the wall on which the hot water service was attached]".

The plaintiff gave evidence that the ladder was 2.1 metres in height and that the first step down from the ladder was 1.8 metres above the ground. Mr MacQuire (who gave evidence that he measured the ladder) said that the ladder was two metres in height with the first step down being 1.7 metres above the ground. Whilst the ladder was ultimately disposed of by Mr MacQuire (on advice), I have no reason to doubt the measurements he gave in evidence.

There was some cross-examination of the plaintiff concerning the height at which he was working and the step on the ladder on which he was standing at the time of the accident. Notwithstanding some inconsistencies in the plaintiff's evidence, I accept the evidence he gave before me that the work he was doing was being done at a height of approximately 2.5 metres above the ground, and the step he was standing on was one step down from the top of the ladder (1.7m above ground). Whilst the defendant tendered two inconsistent histories alleged to have been given by the plaintiff that he was doing work at a height of "approximately 3.5 metres" and "a height of 3.6 metres", I am satisfied on the whole of the evidence that the height was in fact 2.5 metres. Further, whilst the defendant tendered an answer by the plaintiff to an interrogatory that suggested he was working on either the top step or the first step from the top of the ladder, it is very difficult to imagine that the plaintiff could have in fact been doing the work he described from the top of the ladder. The defendant submitted that the histories and answer to which I have just referred shows that the plaintiff's evidence is unreliable. There may be some force in this submission. However, when one looks at the whole of the evidence, it is clear that the histories must be wrong (the error being either the plaintiff's or the person to whom he was speaking), and the answer (insofar as it suggests that the plaintiff worked from the very top of the ladder) must be wrong.

The defendant made a similar submission in relation to the recording of a history in Mr Lightfoot's report that, "On climbing the ladder and standing approximately two steps down from the top he [the plaintiff] took the cut iron sheet and placed it on the batons to cover the hot water service". Again, one cannot know whether this history was the result of some miscommunication between the plaintiff and Mr Lightfoot, some inconsistency on the part of the plaintiff or some error on the part of Mr Lightfoot. One point that might be made is that one could imagine describing the first step below the top of a ladder as the second step in some circumstances, and this being mistranslated subsequently into a recorded history that the relevant person was "two steps down". Mr Lightfoot was not called at trial and one can only speculate as to possibilities concerning why the words used to record some histories can be construed so as to appear (or so as to be) inconsistent with evidence actually given at trial. In the end, having seen the plaintiff, I formed the view that, notwithstanding arguable inconsistencies between some histories as recorded and the plaintiff's evidence at trial (an event which is not unknown in cases of this kind), I accept that the plaintiff was working from the first step down from the top of the ladder. When one looks at the dimensions involved and the probabilities, histories that suggest the plaintiff was working on the very top of the ladder or on a step 2 steps down appear to me to be less likely to be true than the evidence actually given that the plaintiff was working one step down from the top.

In order to put a cover over the hot water service, the plaintiff was required to hammer nails through the iron and into the pieces of wood affixed to the walls, at a height of approximately 2.5 metres. The plaintiff says he was standing one step below the top of the ladder - a height I have found to be 1.7 metres above the ground. The ladder was placed at a 45 degree angle to the corner of the iron furthest away from the internal corner. To perform the work, the plaintiff had to lean over the length of iron - which, as I have said, measured approximately 700 millimetres x 1 metre. The plaintiff gave evidence that, in performing the work, he could not have reached to where he was required to reach if he had stood on a step lower than the step he was standing on. There is no reason to doubt this evidence. Indeed, I accept the plaintiff in relation to this matter. In my view, the likelihood is that the plaintiff stood on the lowest step available to him to do the work he was required to do. Ordinary experience suggests that people do not climb ladders higher than they need to climb in order to reach heights they need to reach (particularly when holding items on a ladder, which ladder would have become more unstable the higher it was climbed). The plaintiff is a man of average height. In my view, it is very likely that he was required to climb the ladder to a height of 1.7 metres (the step down from the top) in order to perform work at 2.5 metres, which involved leaning over a piece of iron measuring approximately 1 metre x 700 millimetres.

At various times in his evidence, the plaintiff described the ladder "flexing", "twisting", "bucking" and "slipping" at the time of the accident. Some attention was paid to whether the ladder doing any of these things was a cause of the accident (and if so, whether any such flexing, twisting, bucking or slipping was the result of the ladder being defective or "dodgy"). Whilst I can understand the plaintiff describing the ladder going through one of these movements at the time of the accident, in my view, such a description merely represents the perception of someone who has fallen from high up on a ladder in circumstances where, by the time the plaintiff commenced to fall, the ladder would itself have been unstable and moving. I do not accept that the accident was caused by some flexing, twisting, bucking or slipping of the ladder that was independent of the movements the ladder would have gone through once the plaintiff commenced to fall. The more likely scenario is that the plaintiff was on the first step down from the ladder, reaching over the iron in order to perform his task, and the obvious occurred - the ladder became unsteady as a result of the plaintiff's position and the plaintiff fell (during which the ladder moved)".

1. Having found that the defendant was negligent and that its negligence was a cause of the plaintiff's injury, Beach J turned to the matter of statutory breach. His honour identified the issue and the respective arguments and expressed his finding in the following way at paragraphs 49 to 55:

Regulation 101 of the Occupational Health & Safety (Prevention of Falls) Regulations 2003 ("the Regulations") provides that the objective of the Regulations "is to prevent incidents at workplaces involving falls of more than two metres and to prevent or reduce injury resulting from those falls". "Fall" is defined in Regulation 104 to mean "a person's involuntary fall of more than two metres". "Fall hazard" is defined to mean "potential to fall". Regulation 107 provides that, for the purposes of the Regulations, "employee" includes "an independent contractor engaged by an employer ...".

Regulation 201 requires an employer to ensure that any task that an employee is required to undertake at a workplace that involves a fall hazard is identified. Regulation 202 requires an employer to assess the risk of a fall in respect of tasks identified under Regulation 201.

"If an employee is required to undertake a task that involves a fall hazard at a workplace, the employer must ensure that the risk of a fall is -

(b) if it is not practicable to eliminate the risk, reduced so far as is practicable."

The defendant contended that, as the plaintiff was standing on a step 1.7 metres above the ground, the Regulations had no application in this case. As was said by Nettle JA, in R v ACR Roofing Pty Ltd:

"It is a recognised principle of statutory construction that legislation which is concerned with furthering industrial safety is to be construed so as to give the fullest relief which the fair meaning of its language will allow."

The same can be said of Regulations of the kind here under consideration. In my view, Regulation 204 and the definition of "fall" in Regulation 104 should be construed so as to give the fullest relief which the fair meaning of the language used will allow. Whilst the Regulations should be understood as requiring an employer to give some focus to the height of structures or places from where there might be falls, that focus should not give rise to a construction that would defeat the objective of ensuring workplace safety.

The words "fall of more than two metres" are ordinary English words. They should not be construed in some narrow and pedantic sense. If, on the whole of the evidence, it can be fairly said that a person fell more than two metres, then such a fall is a fall of the kind covered by the Regulations.

In this case, affixing the iron above the hot water service at a height of 2.5 metres involved a "fall hazard" within the meaning of the Regulations. That is, there was a potential to fall more than two metres. Regulation 204 required the defendant to ensure that the risk of such a fall was eliminated or, if it was not practicable to eliminate the risk, then the employer was required to ensure that the risk was reduced so far as was practicable. The defendant did not eliminate the risk of such a fall. Further, there was no evidence that it was not practicable to eliminate this risk. In the circumstances, the defendant breached the statutory duty it owed the plaintiff as imposed by Regulation 204. This breach was a cause of the accident. Had the risk of a fall of more than two metres been eliminated (either by the use of appropriate scaffolding or the provision of assistance), the accident would not have occurred.

1. In the trial before me, the plaintiff did not fall more than two metres.
2. The plaintiff and defendant agree that the fall regulations encompass and are intended to guard against the risk of a fall of two metres or more. This was recognised in Boehm, where Beach J said at paragraph 55 that:

"In this case, affixing the iron above the hot water service at a height of 2.5 metres involved a "fall hazard" within the meaning of the Regulations. That is, there was a potential to fall more than two metres".

1. The defendant did not seek to cavil with Beach J having addressed a fall hazard as encompassing a potential to fall more than two metres. However, the defendant argues that there was not a risk of the plaintiff falling two metres or more.

1. In Boehm, Beach J. was concerned with the Occupational Health and Safety (Prevention of Falls) Regulations 2003 (Vic). They were overtaken by the Occupational Health and Safety Regulations 2007 (Vic). The 2007 Regulations were in turn revoked and replaced by the Occupational Health and Safety Regulations 2017 (Vic) and which relevant parts I am asked to consider.
2. In Meade the applicable regulations comprised the 2007 regulations.

1. The following facts are taken from the Ruling in Meade at paragraphs 4 to 8:

"At trial, it was common ground that, at all material times, the plaintiff was employed by the first defendant as a sales assistant in a retail lighting shop in provincial Victoria. One of the tasks of his employment was to put waste cardboard and similar material into a large industrial recycling bin that was kept at the premises and to fit as much into the bin as possible, in order to minimise the frequency of the trips required to be made by the second defendant (a waste management company that had supplied the bin) to empty the bin.

It was also common ground that the height of the bin, not including its lid but including the wheels or casters on which it stood, was 1.5 metres from the ground, or very close to that height.

It was the plaintiff's case that, on 21 March 2012, he climbed up onto the metal lip or rim of the bin with a view to getting into it to compress down the cardboard and other material that it contained and that, while he was standing on the rim of the bin, with the bin lid open and his left hand reaching upwards and touching the lid, the lid moved and knocked him to the ground, or he otherwise fell to the ground, suffering serious injuries to his right leg and foot.

The plaintiff's primary claim against his former employer was his claim in common law negligence. He alleged that the former employer had failed to take reasonable care to establish, maintain and enforce a safe system of work in relation to the filling of the recycling bin. In particular, the plaintiff alleged that the former employer had failed to establish a safe system for compacting or compressing the material in the bin and had failed to provide appropriate instructions to the plaintiff.

In addition, the plaintiff sought to rely on an alleged breach on the part of the first defendant as his employer, of duties said to have been cast upon it by pt 3.3 div 2 (Prevention of Falls) of the Occupational Health and Safety Regulations 2007 (Vic) ('the 2007 regulations') as in force at the time of the accident (the 2007 regulations have since been repealed and replaced by corresponding regulations). The plaintiff had been permitted by an order of T Forrest J (as Forrest JA then was) made on 18 June 2018 to amend his statement of claim so as to rely (for the first time) upon that Division of the 2007 regulations. In the end, he pleaded breaches of reg 2.1.2(1), reg 3.3.3, regs 3.3.4(1) to (4) and reg 3.3.5."

1. In Meade the reliance by the plaintiff on the prevention of falls regulations came about because he had been permitted by order of T Forrest J (as T Forrest JA then was) to amend his statement of claim to rely upon pt 3.3 div 2 (Prevention of Falls) of the Occupational Health and Safety Regulations 2007 (Vic) ('the 2007 regulations') as in force at the time of the plaintiff's accident. His honour gave reasons for granting the application to amend and relevantly said:

The prevention of falls regulations are set out in Part 3.3 of the Regulations. Fall is defined in reg 1.1.5 as 'an involuntary fall of more than two metres'.

The application of the Part is set out in reg 3.3.1 and various irrelevant exceptions are provided in regs 3.3.1 and 3.3.2. Reg 3.3.3 sets out the duties of employers to identify fall hazards, and at reg 3.3.4, measures that must be taken to control the risk of a fall are set out. If it is not reasonably practical3 to relocate the task to ground level, or implement a passive fall protection device or work positioning system or a fall arrest system, then the employer is required to ensure that the risk is reduced by the use of a fixed or portable ladder or an administrative control.

As I have said, the first defendant argued that, as the rim of the bin upon which the plaintiff stood was less than two metres from ground level, this was not a fall within the contemplation of Part 3.3 and thus, these regulations were not engaged. In Boehm v Strongback Pty Ltd, Beach J considered a similar circumstance. In that case, the plaintiff, in the course of his employment, was standing on the step of a ladder 1.7 metres above ground level. The defendant contended that, as the fall was less than two metres, the Regulations had no application in this case. His Honour cited with approval a passage from R v ACR Roofing Pty Ltd to the effect that where legislation concerns industrial safety, it is to be given the fullest relief which the fair meaning of its language will allow. Beach J concluded that these fall protection regulations should be so construed. With respect, I agree with his Honour. His Honour said:

[54] The words 'fall of more than two metres' are ordinary English words. They should not be construed in some narrow and pedantic sense. If, on the whole of the evidence, it can be fairly said that a person fell more than two metres, then such a fall is a fall of the kind covered by the Regulations.

[55] In this case, affixing the iron above the hot water service at a height of 2.5 metres involved a 'fall hazard' ... That is, there was a potential to fall more than two metres.

In the present case, it would be open to the trier of this fact (whether judge or jury) to conclude that the plaintiff's fall was one of more than two metres.

The rim of the bin was about 1.5 metres from ground level. The plaintiff, a man of normal height, stood fully upright and extended one arm upward to steady himself on the bin lid. Most of his body, from about the knees upwards, at this stage, would be at or above a height of two metres. In my view, applying the principle of statutory construction relied on by both Nettle and Beach JJA, it would be open to conclude that the plaintiff's fall was of more than two metres. It follows that I consider that there is factual merit in this aspect of the proposed FASOC.

1. Although T Forrest J granted leave to the plaintiff to amend the statement of claim and despite objection made by the plaintiff to Cavanough J entertaining the first defendant's renewal of its application at trial that the regulations were inapplicable "because the rim of the bin upon which the plaintiff allegedly stood was less than two meters from ground level" and the first defendant had not appealed the ruling of T Forrest J, Cavanough J held that his Honour had been concerned and decided only the application to amend and for which purpose it was enough that he was satisfied that the proposed amendment was not futile. Cavanough J said that his "task, on the other hand, was to determine, in a final way, whether the plaintiff's alternative claim based on the regulations should be permitted to go before the jury. Hence the first defendant was entitled to renew its submission".[11]
2. Cavanough J next set out extensive provisions within the 2007 regulations as well as some provisions from the 2003 regulations that were applicable at the time of the decision in Boehm.
3. At paragraph 27 Cavanough J related the plaintiff's submission "that the circumstances of his fall were directly comparable to the circumstances in Boehm. The plaintiff was (according to his claim) standing with his feet on the lip of a bin which was approximately 1.5 metres above the ground. The plaintiff was 186cm tall. Therefore, the plaintiff submitted, his body, above approximately knee height, was more than 2 metres above the ground; and so he was, at that moment, at risk of a fall of over 2 metres, looking at him 'as a person' as the regulations required".
4. At paragraph 28 his Honour further addressed the plaintiff's submission:

"The plaintiff submitted that it was immaterial that he landed on his right foot when he fell from the lip of the recycling bin. It was immaterial, the plaintiff submitted, that his right foot may have, in the course of the fall, travelled a vertical distance of less than 2 metres. Certainly, the plaintiff submitted, standing on the lip of the bin placed him at risk of a fall of over 2 metres insofar as the 'substantial majority' of his body was concerned. Therefore, the plaintiff submitted, regs 3.3.3 and 3.3.4 were engaged.

According to the plaintiff, it was incorrect to focus attention solely on the height of the lip of the bin in this case. That did not of itself determine the extent of the risk of the fall faced by the plaintiff. Self-evidently, the plaintiff submitted, there was a very real risk of injury involved in a person falling from the height of the lip of the bin. Reg 3.3.3 referred to potential fall hazards which may well not involve a fall over a vertical distance. In particular, the plaintiff submitted, sub-paras (b) and (d) of reg 3.3.3 contemplated surfaces which may be slippery, potentially unstable or sloping. It was possible to envisage a worker climbing a steep sand dune, or a steep hill covered in snow or mud, whereby the 2007 regulations may be engaged, notwithstanding that the worker was not engaged in a task from an elevated platform.

Further, the plaintiff submitted, on his evidence, he fell significantly more than 2 metres once the alleged horizontal element of his fall was taken into account. This was a reference to the plaintiff's evidence that he finished up at some horizontal distance from the side of the bin when he came to rest after his fall. (The plaintiff had speculated from time to time in his answers to interrogatories and in his oral evidence that the lid of the bin may have closed rapidly due to a gust of wind knocking him a considerable distance sideways).

The plaintiff submitted that the words 'a person's involuntary fall of more than 2 metres' should not be read 'narrowly' so as to require a vertical distance of 2 metres between the ground and the worker's feet (or the lowest part of the worker's body). According to the plaintiff, there is no warrant in the language of the regulations to do so, and it would be to take the opposite approach to the regulations from that which is demanded by their protective nature.

According to the plaintiff, it is not to stretch the language of the definition to construe it so as to refer to 'the substantial part' of the worker's body being at risk of falling over 2 metres as sufficient to engage the operation of the regulations".

1. His Honour next set out a concession made by the plaintiff's senior counsel that on no view of the facts did the relevant workplace task involve a risk of a fall of more than two metres measured vertically from the plaintiff's feet and that "In other words, Mr Murdoch QC conceded that there was no prospect that the task might involve a fall of the whole of the plaintiff's body through a vertical distance of two metres or more".[12]
2. Cavanough J made the following findings:
   • First, "it is quite clear from the text, context and purpose of the relevant 2007 regulations ('the Fall Prevention Regulations') that they were not applicable where there was no risk that the whole body of the employee would fall more than two metres, measured vertically"
   • Boehme is "clearly distinguishable and does not support the plaintiff's contrary interpretation of the relevant regulations".[13]
3. What next follows in Meade is a detailed recitation by Cavanough J of principles of interpretation and a critique of the plaintiff's interpretation of the Fall Prevention Regulations applying if the workplace task involved a risk of 'the substantial part' or the 'substantial majority' of a worker's body falling more than two metres. His Honour concluded that such an interpretation "is simply not open on the words of the Fall Prevention regulations".[14]

The definition of 'fall' does not mention 'the substantial part' or 'the substantial majority' of the relevant person's body, or any like concept. It simply refers to 'a person's involuntary fall of more than 2 metres'. That expression, in its ordinary and natural sense, means a fall of the whole of the relevant person, not a fall of some particular part (whether 'substantial' or otherwise) of the person... On its face, the defined expression plainly refers to a fall of a person from one level to a lower level, with a vertical distance of more than two metres between the levels.

1. His Honour was not persuaded that Beach J had held in Boehm that it was 'enough that there be a risk that the "substantial part" or the "substantial majority" "of a person's body might fall more than 2 meters". But, in any event, Cavanough J was satisfied that the judgment of Beach J was distinguishable both as to the law and, more significantly, to the facts. His Honour then addressed the facts in Boehm at paragraphs 83 to 86 of his judgment:

In Boehm the workplace task was required to be done at a height of approximately 2.5 metres above the ground. Mr Boehm was required to put an iron cover over a hot water service. The hot water service was attached to one of the walls of the premises in which Mr Boehm was working, in an internal corner. The work had included the removal of a skillion roof. As the roof had been removed, the hot water service was potentially exposed to the elements. Mr Boehm was required to attach pieces of wood to the walls and then to hammer nails through the iron cover and into the pieces of wood affixed to the walls, at a height of approximately 2.5 metres. In attempting to carry out this work, the plaintiff was standing one step below the top of a ladder, at a height of 1.7 metres above the ground. The ladder was placed at a 45 degree angle to the corner of the iron cover furthest away from the internal corner. To perform the work, Mr Boehm had to lean over the length of iron which measured approximately 700 millimetres x one metre. Mr Boehm said that, in performing the work, he could not have reached where he was required to reach if he had stood on a step lower than the step he was standing on. Beach J found that what probably happened was that Mr Boehm, being on the first step down from the ladder, was reaching over the iron in order to perform his task and the ladder became unsteady as a result of his position and he fell. The description which Mr Boehm gave of his fall was that 'his feet went up in the air and then I fell to the ground'.

Importantly, the evidence indicated that Mr Boehm's employer owned portable scaffolding which, had it been available on site, might well have been used by the plaintiff for the job. The judgment does not indicate the height at which the scaffolding would have been erected had it been available, but it is conceivable that one (safer) method of doing the job would have been to do it using scaffolding erected at a height of more than 2 metres.

It follows that, on the facts of Boehm, it may be that there was a risk inherent in the task that the whole of Mr Boehm's body would fall more than 2 metres, measured vertically. It is true that his Honour did not expressly articulate the matter in that way. However, that may be due to the fact that, apparently, both parties before his Honour concentrated on the manner in which the task was actually attempted and on the distance which Mr Boehm actually fell, rather than on the risks that were presented by the nature of the task. In any event, when his Honour came to express his conclusion on this point, he said: In this case, affixing the iron above the hot water service at a height of 2.5 metres involved a 'fall hazard' within the meaning of the Regulations. That is, there was a potential to fall more than two metres. Regulation 204 required the defendant to ensure that the risk of such a fall was eliminated or, if it was not practicable to eliminate the risk, then the employer was required to ensure that the risk was reduced as far as was practicable. It is particularly noteworthy that Beach J did not, anywhere in his Honour's judgment, expressly rule that it was sufficient that 'the substantial part' or 'the substantial majority' or 'most' (or any other particular fraction) of the worker's body was at risk of a fall of more than two metres. Having regard to all of the facts of Boehm, I would not regard it as standing for the proposition that there may be a 'fall' as defined in the regulations even where the workplace task does not involve any risk that the whole of the body of the person will fall more than 2 metres, measured vertically. I would not regard Boehm as standing for the proposition that it is enough that the majority or some substantial part of the person's body would be at risk of falling more than 2 metres.[15]

1. When the facts related in Boehm and Meade are given their full consideration, then I do no regard the decisions as irreconcilable but only that as a matter of fact the decision in Boehm did not assist the plaintiff in Meade to overcome the fundamental hurdle that he was never at risk of falling two metres or more as the plaintiff's counsel conceded before Cavanough J, and that Boehm is understandable according to the reasoning that Cavanough J attributed to Beach J, which was that he had likely accepted there was a risk inherent in the task that the whole of Mr Boehm's body would fall more than 2 metres, measured vertically.

Application of reasoning to the present dispute

1. The application of the fall prevention regulations is not excluded because in the proceeding before me the plaintiff fell less than 2 metres. Mr Clarke accepted this is the case but he argued that "there needs to be a risk of a vertical fall greater than 2 metres. And the risk here is approximately 400 millimetres or 40 centimetres, the platform to the ground, or perhaps 40 centimetres plus a standard step, but well short of a 2 meter fall".[16]
2. Mr McGarvie argued that fact that the plaintiff fell less than 2 metres fortunately that does not take account of the risk the plaintiff had of falling 2 metres or greater.
3. In Meade, Cavanough J observed at paragraph 17 when addressing a submission advanced by the plaintiff's counsel that the definition of 'fall' does not specify how the distance of "more than 2 metres " is to be measured, that is the points between which the distance of over 2 metres is to exist are not specified. At paragraph 45 Cavanough J said, "On its face, the defined expression plainly refers to a fall of a person from one level to a lower level, with vertical distance of more than two metres between the levels".
4. For the avoidance of doubt, I have used the word vertical to mean the up-and-down direction, perpendicular to a horizontal line or surface, and that aligns with the force of gravity.
5. I find that the plaintiff was working more than 2 metres above street level. I find that he fell from a makeshift stand he used as a platform fashioned from an upturned blue plastic tub on which had been placed a length of wood the ends of which extended over the side ends of the tub. Neither the tub nor the wood atop it was secured to the first level balcony landing. I find that the combined height of the tub and the wood was estimated by the plaintiff to be some 400 millimetres. I accept the plaintiff's evidence that when he slipped off the wood by having placed his right foot behind him to accommodate his task, the wood beam caused him to slip and he fell and his right knee struck the first step that led down from the first level balcony landing and he said he then slid some indeterminate number of further steps but perhaps ending up on the flat landing that separated the next steps that led down to the property at street level.
6. I find that there was a risk inherent in the task that the plaintiff was required to perform, that the whole of his body would fall more than 2 metres, measured vertically.
7. I respectfully adopt Cavanough J's analysis of the reasoning he applied by Beach J in Boehm when he said at paragraph 85:

It follows that, on the facts of Boehm, it may be that there was a risk inherent in the task that the whole of Mr Boehm's body would fall more than 2 metres, measured vertically. It is true that his Honour did not expressly articulate the matter in that way. However, that may be due to the fact that, apparently, both parties before his Honour concentrated on the manner in which the task was actually attempted and on the distance which Mr Boehm actually fell, rather than on the risks that were presented by the nature of the task.

1. It follows that the defendant's objection that the fall prevention regulations cannot apply based on their application and because of Meade falls away.
2. I am satisfied that a jury properly instructed could be satisfied on the facts that the task in which the plaintiff was engaged enlivened a risk that the whole of the plaintiff's body would fall more than two metres, measured vertically. However, this is not the end of the matter, because the defendant advanced an additional argument.

The exclusion expressed in regulation 41 (2) (b)

1. At the hearing of oral submissions by way of objections, Mr Clarke raised a separate but allied objection to the application of the fall prevention regulations by reference to regulation 41(2)(b).
2. Regulation 41(2)(b) states -

_(b) a task that is undertaken on those parts of a building or structure (including stairs, fixed ladders, ramps and balconies) that - _

(i) comply with any applicable requirements of AS 1657 - Fixed platforms, walkways, stairways and ladders - Design, construction and installation; and

(ii) comply with any applicable requirements of the Building Regulations 2006 ; and

(iii) are used for the purpose for which they were designed, including for entry and exit; or

(c) any activity determined by the Authority in accordance with subregulation (3).

1. Mr Clarke submitted that the fall prevention regulations are not applicable to a task performed on an elevated part of a building that complied with the necessary codes or standards specified. In short, the defendant submitted that the exclusion under regulation 41(2)(b) operates to render tasks performed on balconies (which the defendant submitted the porch on the first level is akin to) not subject to the duties under the Part merely by reason of their height from ground level. Mr Clarke argued that the porch was being used by the plaintiff for the precise purpose for which it was built, being to access the building on which he was performing his work.
2. The defendant's written submissions also relied on what it would have me find was unsatisfactory aspects of the evidence given by the plaintiff that included:
   • that the tub as shown in the photograph at Plaintiff Court Book 174 and being used by the plaintiff at the time he fell was not secured to the ground.
   • the plank was not secured to the tub;
   • the plaintiff having accepted that the plank would have moved from the position it was shown in the photo, but he did not see anyone move it back into position. Likewise he didn't see anyone move the tub.[17]
3. Mr Clarke also referred to the plaintiff's evidence in re-examination when he confirmed -
   • the blue box was not abutting the railing shown in the photograph; and
   • it was probably 200 millimetres back from the rising part of the step;
   • he was leaning forward over the railing, with a drop of over 2 metre on the other side of the railing;
   • the railing was 1.2 metres high.

1. Mr Clarke submitted that task the plaintiff was engaged in involved accessing a point on a vertical column, measuring approximately 2 metres above the ground from the surface of the porch area. The plaintiff used a makeshift platform measuring approximately 40 centimetres to access the 2 metre height. The column to which the plaintiff was required to attach the cladding and that he was endeavouring to accomplish when he slipped was in close proximity to a guardrail, which is approximately 1.2 metres high and should be viewed as guarding against the risk of falling from the stairs leading to the porch area, and the porch area itself.
2. Mr Clarke submitted that although the plaintiff testified that he was required to lean over the guardrail to access the column to install the screws to secure the cladding, this "seems unlikely from a review of the photograph and consideration of the location of the top of the column and the approximate location of the make-shift platform".[18]
3. Mr Clarke recognised that the regulations require an employer to identify, so far as is reasonably practicable, any task an employee is required to undertake that involved a fall hazard. However, he contended that in the circumstances of this case, the test is whether it was reasonably practicable for the employer to identify the task of installing the cladding, including the task of installing screws at the top of the column, as involving a fall hazard and that this is an objective test.
4. Mr Clarke argued that properly analysed, the task does not fall within the province of the regulations because it did not involve a risk of a vertical fall of more than 2 metres, and as it transpired, the relevant fall was well less than 2 metres. Mr Clarke submitted that the risk of a vertical fall of more than 2 metres did not exist because

(a) The height of the work to be performed was approximately 2 metres above the ground; and

(b) The edge of the balcony and stairs was protected with a guardrail, which falls within the definition of a passive fall prevention device in the regulations and the task involved working within the protection of the guardrail.

1. Mr McGarvie contested each of the contentions expressed and implied in the defendant's submission. He submitted that there is no evidence that the "task that was undertaken by the plaintiff on those parts of the building or structure (including stairs, fixed ladders, ramps and balconies) complied with the requirements identified at subpart (b) (i) and (ii) of regulation 41 (2)(b) and that those parts of the building or structure on which the task was undertaken was being used for the purposes for which they were designed".
2. I am not satisfied that the plaintiff was undertaking a task that attracts the exclusion created by r 41 (2) (b) to the obligations for the prevention of a risk of a fall of two metres or more because he was affixing the cladding to the vertical structure whilst on the balcony. The task was being undertaken by the plaintiff on a makeshift platform and I am not satisfied that it must be said that the task was one undertaken on the balcony for "the purpose for which [it] was designed". Arguably, the balcony was not being used at the time of the fall for a task for which it was designed or intended, that is, as the base or footing from which the task was undertaken by the plaintiff. Instead, the balcony was being used as the base or footing for a makeshift platform on which the plaintiff stood in an effort to undertake the task.
3. In light of my findings it is not necessary to address the matters referred to and relied on by the defendant that stem from those parts of the plaintiff's evidence about which the defendant was critical. Nor have I any need to pass comment on whether the plaintiff's evidence of needing to stretch over the guardrail is unlikely as a matter of fact and this extends to Mr Clarke's submission that if the plaintiff's interpretation is preferred then it does not matter that there was fashioned a makeshift platform on the floor of the balcony or not because a suitably tall enough worker who needing to stretch or reach out over the guardrail could be regarded as having been exposed to a risk of fall of two meters or more.
4. The plaintiff may rely on and open to the jury on the basis of an alleged breach of the contested regulations.

[1] Transcript ("T") 30, Lines ("L") 4-6.

[9] [2011] VSC 463.

[10] [2019] VSC 786.

[11] Meade [2019] VSC 786 at [11].

[18] Defendant's Outline of Submissions dated 22 October 2025 at [15].