Schiliro v Peppercorn Child Care Centres P/L

Mr K Fleming QC, with him Mr R F King-Scott, for the appellant

Mr P A Keane QC, with him Mr B L Hoare, for the respondent

[1] THE COURT: This is an appeal from the primary judge's dismissal of the appellant's action against her employer in negligence and breach of statutory duty for damages for personal injuries. The appellant's action was based upon an injury that she suffered at work on 17 January 1996.

[2] The learned judge found the respondent did not breach its statutory duty under s 28(1) of the Workplace Health & Safety Act 1995 ("the Act") and, alternatively, if there was a breach, the respondent "took reasonable precautions and exercised proper diligence to prevent the contravention"[1] and therefore established a defence under s 37 of the Act.

[3] The appellant claims those findings are wrong and also disputes the quantum.

[4] The respondent claims that s 28 of the Act and its related provisions do not provide a civil cause of action to an employee injured at work.

[5] The question whether s 28 of the Act gives rise to a civil cause of action has not previously been considered by this Court. The Act replaced the Workplace Health & Safety Act 1989 ("the 1989 Act"), s 9 of which was in some ways comparable to s 28. That section was considered in Rogers v Brambles Australia Limited[2] where Pincus JA, with whom McPherson JA agreed, noted:

"Although the provision in its terms merely creates an offence, it was conceded, and I think correctly, that a civil action may be brought by persons damaged by failure to comply with the provision."[3]

[6] The earlier case of St Vincent's Hospital Toowoomba Ltd v Hardy[4] and the later case of Mount Isa Mines Ltd v Peachey[5] were both decided on the basis that s 9 of the 1989 Act gave rise to a civil cause of action, although again without argument on the point. But, in Finn v Roman Catholic Trust Corporation for the Diocese of Townsville[6] Thomas J, McPherson JA agreeing, said that although it was unnecessary to decide the point, it was arguable whether s 9 created a civil cause of action.

[7] In Heil v Suncoast Fitness (a firm)[7] the appellant, not an employee but a customer of a fitness centre, sought damages under s 10 of the 1989 Act. McMurdo P and Pincus JA, Williams JA agreeing, found that ss 9-14 of the 1989 Act:

"... all create offences relating to workplace dangers; speaking generally, the offences are not so defined as to imply an obligation to do or refrain from doing anything specific, but, rather, they require the potential offenders to act safely. Speaking generally - s 9 is a clear exception - the provisions are not so phrased as to indicate an intention to protect a particular class of persons; rather, they appear to be for the protection of anyone, whether employee or not, whose safety may be put at risk by the activities dealt with by the various sections."[8] (our emphasis)

[8] Although the court found that s 10 of the 1989 Act did not create a private cause of action, the court accepted, again without argument on the issue, that s 9 was an exception to those sections surrounding it and by implication created a civil cause of action.

[9] In Castle v Weeks[9] the appeal failed as the appellant was unable to establish that her injury was caused by the respondent's conduct. However, in obiter comments, Chesterman J, with whom Douglas J agreed, relying on a judgment of Wallace J in Smith v Macquarie Stevedoring Co Pty Ltd[10] doubted whether s 9 of the 1989 Act did provide a civil cause of action and thought there was "considerable substance" in the argument to the contrary.[11] That issue, which is primarily one of statutory construction, must now be determined.

[10] Dixon J (as he then was) noted in O'Connor v S P Bray Ltd:[12]

"... the received doctrine is that when a statute prescribes in the interest of the safety of members of the public or a class of them a course of conduct and does no more than penalise a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction. The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instrument."

[11] A similar approach was taken by Kitto J who noted in Australian Iron & Steel Ltd v Ryan:[13]

"... an implication that private rights are created does not necessarily, or even generally, depend upon discerning in the words used a manifestation of an actual intention on the part of the draftsman to create such rights. It depends, of course, on 'a consideration of the whole Act and the circumstances, including the pre-existing law, in which it was enacted': per Lord Simonds in Cutler v Wandsworth Stadium Ltd [1949] AC 398 at 407."[14]

[12] Section 28 of the Act and s 9 of the 1989 Act are of the type referred to by Dixon J in that they are in the interests of the safety of a class of the public, employees, and the legislature has not expressed any clear intention in either Act as to whether it intended to create a civil cause of action. It is therefore useful to trace the history of the legislation and refer to the Second Reading Speeches and Explanatory Notes in respect of both Acts.[15]

[13] The 1989 Act repealed statutes including the Construction Safety Act 1971-1987 and amending Acts, the Inspection of Machinery Act 1951 and amending Acts, the Health Act 1937-1988 (as to sections dealing with occupational health), Part III of the Motor Vehicles Safety Act & Other Acts Amendment Act 1985 and Part III of the Rural Machinery Act and Another Act Amendment Act 1987. The breach of many of those repealed statutes was held by the courts to give the employee a private right of action against the employer. For example, in Forrest v John Mills Himself Pty Ltd,[16] the High Court found that a breach of the Inspection of Machinery Acts 1951-1966, which required that "every part of any transmission machinery shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working with respect thereto as it would be if securely fenced", created a private cause of action.[17] A wide range of statutory provisions which have been held to confer causes of action upon injured workers are mentioned in Glass, McHugh and Douglas' work The Liability of Employers (2nd Edn), separate chapters being devoted to the statutory duty to fence machinery (Ch IX), factories and shops legislation (Ch X) and construction safety legislation (Ch XI).

[14] A consideration of the applicable law before the 1989 Act supports the inference that the 1989 Act was intended to create a private cause of action in the absence of any provision in the 1989 Act or any statement by the legislature to the contrary. It is noteworthy that in the UK, the Commonwealth, New South Wales, Victoria and the ACT, civil rights of action for breach of comparable legislation have been specifically excluded,[18] yet no such provision was included in the 1989 Act.

[15] It is useful to refer to the Second Reading Speech of the Workplace Health & Safety Bill 1989, where the Minister noted:

"... Provisions have been included in the Bill that establish a duty of care on a range of persons to ensure the health and safety of workers and other persons. For example, employers must ensure the health and safety of their employees; ... of course, there is nothing new about the necessity for persons to ensure the health and safety of employees and other persons. The 'Duty of Care' provisions contained in this Bill simply reinforce the duty of care requirements that already exist under common law."[19] (our emphasis)

[16] "Reinforce" means "to strengthen with some added piece, support or material; ... to strengthen; to make forcible or effective; to augment; increase".[20]

"9. Employers to ensure health and safety of their employees. (1) An employer who fails to ensure the health and safety at work of all of his employees, save where it is not practicable for him to do so, commits an offence against this Act."

[18] This Court has held that s 9 effectively added to the duty imposed at common law; negligence need not be established but merely that injury was caused by an unsafe work practice. Once that is established, the employer is liable unless the employer establishes lack of practicability. See Kingshott v Goodyear Tyre & Rubber Co Australia Ltd (No 2),[21] Rogers v Brambles Australia Ltd,[22] Mount Isa Mines Ltd v Peachey[23] and Schultz v Schmauser.[24]

[19] It is not the law that because a statute creates an offence punishable by a penalty the statute is precluded from also creating a civil cause of action.[25]

[20] While different views may exist on the question whether generality of expression or lack of indication of precisely what is required or prohibited is an influential factor in deciding whether a statutory provision gives rise to a civil cause of action, such a factor is sometimes adverted to as a relevant consideration. Dixon J observed in O'Connor v S P Bray Ltd: [26]

"Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on."

[21] The present authors of Salmond & Heuston on the Law of Torts (21st Edn)[27] also suggest that the nature and precision of the relevant provisions is a factor in determining whether a cause of action is conferred. Lord Reid observed in Cutler v Wandsworth Stadium Ltd:[28]

"I find it extremely difficult to reconcile the nature of the provisions of this sub-section with an intention to confer on individual bookmakers rights which each could enforce by civil action. If the legislature had intended to create such rights I would expect to find them capable of reasonably precise definition."

[22] A similar approach was taken by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council.[29] Again, in Smith v MacQuarie Stevedoring Co[30] Wallace J interpreted legislation designed to achieve both efficiency and safety of waterside workers as revealing a general legislative objective, commenting that,

"The generality of the provision and the absence of some enunciated specific precaution are to me much against the view that a civil cause of action emerges from an alleged breach of the provision".

[23] Such a consideration is by no means decisive but would seem to be one of the many factors that may be regarded by a court in determining whether legislation confers a civil cause of action. In the present case, although greater specificity in s 9 may have made it easier to discern the necessary intention to make employers civilly liable for breach, other factors outweigh this. The particular historical legislative context, the fact that s 9 is legislation directed towards employee safety, the recognition of a defence on the part of the employer "where it is not practicable for him to do so" and the use of the language of duty in the legislation suggest that s 9 of the 1989 Act did create a civil cause of action.

[24] When the Workplace Health & Safety Bill 1995 had its Second Reading the Minister noted:

"Queensland has had occupational health and safety legislation for almost 100 years, since the Factories & Shops Act 1896 was introduced to this House to protect the rights of workers. ...

Five years ago, Queensland workplace health and safety legislation moved from being narrow and prescriptive to broad based. In short, it established a duty of care for all persons at a workplace to ensure their health and safety and that of others. It also allowed workers and employers to address together health and safety issues at the workplace.

... This new Act is a part of an overall agenda of the Government to make workplaces safer and healthier.

... As the old adage says, prevention is always better than cure, and this is where workplace health and safety legislation plays its part.

The Workplace Health & Safety Act 1995 will bring much-needed reforms to help reduce further and faster the human and financial costs which extend well beyond compensation costs and ultimately impact on families, employers, the self-employed and our health and social security system. The direction of this new Act has not changed from the current Act. However, it will provide an improved framework for enhancing standards of workplace health and safety at the workplace. ...

The Bill places a clear obligation on employers to ensure that the health and safety of workers and other people is protected and provides clear definitions of what constitutes an obligation and how that obligation may be discharged. ...

The Bill removes the limitation of 'as far as practicable' from each duty of care statement, allowing it to become a defence. This provides greater certainty about acceptable minimum standards of health and safety to both employers and workers. ...

Workplace disease and injury are a blight on our society and economy. Disease and injury should never be seen as an intrinsic risk attached to work."[31]

[25] The Explanatory Notes to the Workplace Health & Safety Bill 1995[32] state that:

"The overall object of this Bill is to ensure freedom from disease or injury to persons caused, and risk of disease or injury to persons created, by workplaces, workplace activities or specified high risk plant. ...

The scope and intent of the existing legislation remains unchanged but are clarified in this Bill."[33] (our emphasis)

[26] There is nothing in this material, taken in the historical context already set out, that suggests that the Act, insofar as it is directed at employee safety, is inconsistent with the creation of a civil cause of action;[34] the Act is to emphasise prevention rather than cure but the scope and intent of the existing legislation is to remain unchanged. The language of obligation in s 28 and of 'discharge of obligations' in s 24, s 26 and s 27 fits comfortably with the concept of civil liability. It would have been a simple matter for the legislature to exclude civil causes of action as has been done in many other jurisdictions. These considerations combine to support the inference that s 28, like s 9 of the 1989 Act, creates a civil cause of action.

[27] Mr Keane QC, who appeared with Mr BLP Hoare for the respondent, submits that s 28 of the Act is not for the benefit of a particular class of the public and therefore does not give rise to a civil cause of action.[35]

"(1) An employer has an obligation to ensure the workplace health and safety of each of the employer's workers at work."

The class of the public that s 28(1) protects is employees; it does not apply to the public generally; that distinction was indirectly adverted to by this Court in Heil v Suncoast Fitness.[36] The Laws of Australia[37] notes that legislation for the benefit of workers "is a class less extensive than the public as a whole. In such circumstances, a statute creates a prima facie right of action in members of the class injured as a result of its breach."

[29] Mr Keane submits that the scheme of the Act demonstrates that s 28 and its related provisions are intended only to create an offence, not civil liability. To address this submission it is necessary to set out portions of the Act and the Code of Practice for Manual Handling.

[30] The overall object of the Act "is to ensure freedom from disease or injury to persons caused, and risk of disease or injury to persons created, by workplaces, workplace activities or specified high risk plant ("workplace health & safety").[38]

[31] The Act emphasises consultation between government, employers and workers to ensure workplace health and safety at industry and workplace level.[39] Section 19 provides for the Governor-in-Council to make compliance standards for workplace health and safety to prohibit or prescribe ways to prevent or minimise exposure to risk. Section 20 of the Act provides for advisory standards to be made by the Minister; these standards give practical advice on ways to be used to identify and manage exposure to risk for workplace health and safety. Section 20(2) provides:

"However, a person may adopt another way, more suited to the person's undertaking, for identifying and managing exposure to risk for workplace health and safety."

[32] One such advisory standard is the Code of Practice for Manual Handling (1991).[40] Section 40 of the Act provides that:

"An advisory standard may be made for workplace health and safety stating ways to identify and manage exposure to risk from workplaces, workplace activities or specified high risk plant."

[33] Section 42 deals with the use of advisory standards in proceedings:

"42. An advisory standard is admissible in evidence in a proceeding under this Act if -

(a) the proceeding relates to a contravention of an obligation imposed on a person under part 3;[41] and

(b) it is claimed the person contravened the obligation by failing to identify and manage exposure to a risk; and

(c) the advisory standard is about identifying and managing the exposure to the risk."

[34] Section 28, set out earlier, obliges an employer to ensure the workplace health and safety of each of the employer's workers at work. Section 24 provides:

"(1) A person on whom a workplace health and safety obligation is imposed must discharge the obligation.

Maximum penalty - 400 penalty units or six months imprisonment.

(2) Subsection (1) applies despite Criminal Code, sections 23 and 24."

[35] Section 26 sets out how an obligation under the Act can be discharged where there is an applicable compliance standard.[42] In respect of advisory standards it provides:

"(3) If an advisory standard states a way or ways of identifying and managing exposure to a risk, a person discharges the person's workplace health and safety obligation only by -

(a) adopting and following a stated way that identifies and manages exposure to the risk; or

(b) adopting and following another way that identifies and manages exposure to the risk."

[36] Section 27 of the Act sets out how an obligation under the Act can be discharged where there is no applicable compliance or advisory standard: an employer "may choose any appropriate way to discharge the ... obligation"[43] and discharges the obligation only by taking reasonable precautions and exercising proper diligence to ensure the obligation is discharged.[44]

[37] Sections 26 and 27 should be read with s 37:

"37 (1) It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division 2[45] or 3[46] for the person to prove -

(a) if a compliance standard has been made about the way to prevent or minimise exposure to a risk - that the person followed the way prescribed in the standard to prevent the contravention; or

(b) if an advisory standard has been made stating a way or ways to identify and manage exposure to a risk -

(i) that the person adopted and followed a stated way to prevent the contravention; or

(ii) that the person adopted and followed another way that identified and managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention; or

(c) if no compliance or advisory standard has been made about exposure to a risk - that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention.

(2) Also, it is a defence in a proceeding against a person for an offence against division 2 or 3 for the person to prove that the commission of the offence was due to causes over which the person had no control.

(3) In this section, a reference to a standard is a reference to a standard in force at the time of the contravention."

[38] Whilst it might be arguable that there is a civil/criminal dichotomy between s 26 and s 27 on the one hand and s 37 on the other, on balance it would seem that all three sections are available to an employer whose liability is said to arise out of an obligation under s 28. The legislative footnote to s 26 - "for this section and the following section, see the defences provided in division 4" (ie s 37) - whilst not part of the Act[47], is extrinsic material to which regard may be had under s 14B(1) of the Acts Interpretation Act.[48] Likewise the heading to s 37 is "defences for Div 2 or 3". Section 28 is within Division 2. The only provision which would seem limited to proceedings for an offence is s 37(2). It is understandable that the legislature might see fit to approve such a defence as that in s 37(2) (that the commission of the offence was due to causes over which the person had no control) in relation to proceedings for an offence, but not in relation to civil proceedings. The specific reference to proceedings for an offence in subsection (2), but not elsewhere, tends to support the general availability of a defence under s 37(1). Moreover the offence and the civil obligation both derive from the same section namely s 28 of the Workplace Health and Safety Act. The relevant offence is created by s 24 which requires a person upon whom a safety obligation is imposed to "discharge the obligation". Although the language of "contravention of an obligation" in s 37 may be more appropriate to a proceeding for an offence, a reading of Part 3 as a whole (ie s 23 to s 37) suggests that an employer who is sued civilly or charged with an offence of failing to discharge an obligation may resist the allegation either by showing under s 26 or s 27 that the obligation has been discharged, or by showing a defence under s 37. In either case the onus is on the employer to prove the basis upon which it relies.

[39] Part 9 of the Act provides, in a number of Divisions, for the appointment,[49] general powers,[50] improvement and prohibition notices,[51] other investigative powers,[52] and other enforcement matters in relation to inspectors.[53] The last Division includes s 125 which allows a person to claim compensation from the State for loss or expense caused by an inspector.

[40] Part 12 of the Act deals with legal proceedings under the Act, including matters of evidence and proof. A prosecution for an offence against the Act is by way of summary proceedings before an Industrial Magistrate[54] and the following sections in that Part deal with procedural matters in respect of the prosecution of offences.

[41] To fully understand the scheme of the Act as it affects this case, it is necessary to also consider the advisory standard, the Code of Practice for Manual Handling (1991) ("the Code"). The Code was prescribed by the Minister under s 34 of the former (1989) Act. In 1995, upon the passing of the 1995 Act it was adopted as an "advisory standard" for the purposes of that Act. The purpose of the Code "is to provide practical advice to employers, employees and others on meeting the requirements of the Workplace Health & Safety Act 1989 with respect to the identification, assessment and control of risks arising from manual handling activity in workplaces." The code applies to every manual activity at a workplace.[55] "Manual handling" is defined in extremely wide and general terms as "any activity requiring the use of force otherwise (sic) by a person to lift, lower, push, pull, carry or otherwise move, hold or restrain any animate or inanimate objects".[56] It would therefore include picking up a pen from the floor or replacing a book on a shelf.

[42] The Code states that "employers should ensure consultation occurs with employees and/or their representatives during risk assessment of manual handling tasks and in the development of risk control options and their application."[57] "Risk assessment" is defined as "the identification of risk involved with a manual handling task that is likely to be a risk to health and safety."[58] (our emphasis)

[43] The Code provides guidance on the three key stages in the process of reducing manual handling injuries. Those three stages are identification of risk factors in the workplace likely to cause manual handling injury; detailed assessment of particular risk factors and principles and of control measures to eliminate or reduce the risk.[59] The Code then sets out a detailed method of dealing with these three stages which is generalised enough to apply to all manual handling tasks requiring identification assessment and elimination or reduction of risk.

[44] The obligations on employers under the Code have been imposed by regulation or in the case of advisory standards by 'subordinate legislation' made by the Minister under s 41 but this does not exclude a breach from being a breach of statutory duty as they derive their authority from the Act: see Jacob v Utah Constructions and Engineering Pty Ltd,[60] Dainford Ltd v Smith,[61] Le Cornu Furniture and Carpet Centre Pty Ltd v Hammill,[62] Monroe Australia Ltd v Norman[63] and Glass & McHugh, The Liability of Employers in Damages for Personal Injury.[64]

[45] Mr Keane submits that if s 28(1) creates a private cause of action there would be unjust results in that every manual handling task, no matter how trifling, would require employers to undertake risk identification and assessment; such a scheme would be unworkable and therefore was not one intended to create a civil cause of action.

[46] The natural extension of that argument is that it would be unlikely the legislature would intend to create an offence for failing to identify and assess trifling manual handling tasks. The respondent's submission overstates the effect of the Code which requires "identification of risk factors in the workplace likely to cause manual handling injury"[65] and the identification of "manual handling tasks likely to be a risk to health and safety in order that they can be effectively examined and assessed"[66] (our emphasis). Only if the risk identification procedure indicates a need for risk assessment is it necessary to move to the second step of risk assessment which is defined as "the identification of risk involved with a manual handling task that is likely to be a risk to health and safety[67] (our emphasis). The Code provides a framework for employers in consultation with employees to assess, identify and deal with risks, but only those risks likely to be a risk to health and safety. If, for example, the manual handling task was not likely to be a risk to health and safety, the Code would cease to apply.

[47] This approach accords with common sense and is consistent with the statement in the Second Reading Speech:[68] "The Bill removes the limitation of 'as far as practicable' from each duty of care statement, allowing it to become a defence ..." It is consistent with the conclusion earlier mentioned that the discharge of obligations under s 26 and s 27 and the defence under s 37 not only apply to prosecutions under the Act but also to any arising civil cause of action.

[48] Mr Keane submits that as s 125 of the Act deals with compensation; this indicates that the intention of the Act was to limit compensation to that section, the Workers Compensation Act 1990[69] and the common law. In context, it is clear that s 125 relates only to compensation in respect of an inspector's actions and is not intended to cover the field as to compensation generally, excluding an employee's civil cause of action against the employer.

[49] When looked at in its historical legislative context and in the absence of a clearly discernible intention in the legislature to do otherwise, an examination of the scheme of the Act suggests that it is one intended to impose civil liability on employers who have failed to ensure the health and safety of their employees and thereby caused injury to those employees, unless the employer demonstrates that it has discharged its obligations under s 26 or s 27 or that it has established a defence under s 37 of the Act. As with the 1989 Act, this adds to the common law of negligence by placing the onus on employers to establish these matters under the Act, once the employee has proved the employer breached the obligation to ensure the workplace health and safety of the employee, thereby causing injury to the employee. We are satisfied the imputed intention of s 28(1) of the Act is to provide a civil cause of action to such employees.

[50] The appellant was a 23 year old child care assistant employed by the respondent. She was described by the primary judge as overweight, unathletic, 166 cm tall and not apparently at risk of injury.

[51] She had a minor injury to her back in 1990 when she was employed as a nurse's aid; she required treatment from a general practitioner and had three visits to a physiotherapist. She has had no other back problems. Her employers were unaware of any history of back problems. Her fulltime position with the respondent involved caring for children aged from 3 to 5 years and included lifting children and moving tables and play gym equipment. The learned primary judge found there was no evidence to suggest the appellant had any difficulty in carrying out her duties despite her overweight and unathletic condition and there was no reason for the respondent to consider her health at risk.

[52] The children played on playground equipment which included a wooden fort, slippery slides, rope netting, used tyres and a suspension bridge between two platforms. A sandpit enclosed by logs was underneath the fort (in effect, a timber platform a little more than a metre off the ground). The playground equipment was surrounded by artificial turf. Some of the sand inevitably spilt onto the artificial turf.

[53] When the respondent purchased the childcare centre, a director of the respondent and his partner returned the sand to the sandpit and instructed senior staff to ensure the sand was kept tidy and in the sandpit. All staff were directed in general terms that the sand was to be put back into the sandpit. On 17 January 1996, the childcare centre director told a group leader Ms Amanda Jewel to move some spilt sand back into the pit. Ms Jewel said that as she had a lower back problem she could not do this work. That explanation was accepted and the appellant's group leader Ms Miles asked the appellant to do it, probably handing her a spade.

[54] His Honour found that the appellant grumbled about having to do this work, but not to anyone in authority. She claimed she did not refuse to do the work because she thought she might lose her job but his Honour found that if that was her belief, it was not a reasonable belief. His Honour found that the request to the appellant reasonably fell into the category of "general cleaning duties", part of her job description.

[55] The appellant was not experienced in shovelling, she was not instructed how to move the sand, nor was she given any time deadlines. She and another worker, Ms Martin, took turns, one raking the sand and the other shovelling it with a medium sized spade into a large children's wheelbarrow[70] which was then pushed a short distance over to the sandpit and emptied into it. The appellant moved about eight loads in this manner over about 25 minutes. Neither Ms Martin nor any other employee noticed anything unusual about the way in which the appellant carried out this work. The sand was damp and not hard to shovel. When she finished the task, the appellant stood up and felt sudden pain in her back radiating down her legs. She continued working for a time but later in the day left to receive medical treatment and has not worked for the respondent since.

[56] The appellant did not plead as particulars of the breach of statutory duty a breach of the advisory standard, the Code,[71] although her case was conducted on that basis at trial. The appellant relied on workplace health and safety expert Mr O'Sullivan who estimated the lifting forces on the appellant's left hand whilst shovelling at 8.5 kilograms and the force required to lift the wheelbarrow filled with damp sand at 14 kilograms. He said a load of about 8 kilograms in one hand is a reasonable load for a female. The 14 kilogram weight of the wheelbarrow was unlikely to be a problem for a female when handled in normal circumstances but may pose a problem if handled in the midst of prolonged significant bending and also if lifted at a distance from the body and/or twisting and bending while lifting, not to mention the holding of such a weight during the process of wheeling the barrow. He referred to the Code and the need for assessment, identification and control of manual handling risks and noted:

"... the use of a child's wheelbarrow and a spade with an incomplete handle in the shovelling of a significant amount of wet sand, along with the wheeling of the child's wheelbarrow and the emptying of the wheelbarrow in constricted and confined conditions, must be considered inappropriate. There are a number of risk factors in the activity, as have been described; although no single risk factor appears to be highly significant, the combination of the risk factors must be considered important as the factors will tend to interact with one another in influencing the overall risks. Possible counter-measures must therefore address the identified risk factors."

[57] Those counter-measures included the use of a full size wheelbarrow; the use of a long handled shovel to reduce the required bending and training in how to use it; improved access to the sandpit so that it extended out from the fort area enabling the wheelbarrow to be emptied more easily; rotating the task between a number of workers to minimise fatigue and giving the task to a more experienced and stronger person such as a gardener or tradesperson.

[58] Dr Low, a medical practitioner with a speciality in occupational medicine, was called by the respondent. Dr Low noted that the weights lifted by the appellant were well below the recommended weight limits in the Code of Practice for Manual Handling (1991) and concluded: "In view of the very limited stress such a task would place on the spine, I would not have recommended an alternative system of work."

[59] Dr Low assessed the task being carried out by the appellant immediately before she injured her back as a very low risk task and did not recommend the counter-measures suggested by Mr O'Sullivan. A long handled spade would place the blade further from the body, increasing the load on the spine and making the shovelling into the wheelbarrow more strenuous; a larger wheelbarrow would inevitably mean more sand was placed into it and pushing and emptying would place greater stress on the spine than the system adopted by the appellant. The particular task involved had such a low risk of probability of serious injury that he would not recommend changing the system used by the appellant. If the appellant injured her back in the manner described by her, there was still no reason to conclude that disc damage could have occurred from that task; disc damage can occur by bending over and picking up a pen.

[60] In cross-examination, he conceded that higher handles on the wheelbarrow would be an improvement in the work system used by the appellant but he would not recommend this to an employer as the risk was so low and an employer would be better advised to put resources into higher or medium risk activities. If he went to a childcare centre to assess work practices he would not address an issue such as the light shovelling involved here; the primary hazard would be the lifting of children as a typical five year old may weigh over 20 kilograms and that weight, especially if lifted at a distance from the body, can place considerable stress on the spine; other manual handling tasks and the transmission of infectious diseases would also be addressed. The Code makes many general statements but has no application to the task of transferring a relatively small amount of sand from one area to another; it involves such a limited risk that it was unnecessary to be addressed in the context of the workplace in circumstances where the weights that were lifted by the appellant in this task were within those recommended by the Code.

[61] The learned primary judge preferred Dr Low's evidence to that of Mr O'Sullivan, whom his Honour noted "appeared to be struggling to assemble a respectable argument" on the facts of the case.

[62] Mr Fleming QC, who appeared with Mr King-Scott for the appellant, complained that his Honour found that the appellant had a small disc bulge at L5/S1 that was sufficient to be the source of painful symptoms whilst Dr Low was not satisfied that disc damage occurred from the task carried out by the appellant but rather from a derangement of the spine. Mr Fleming submitted that as the learned primary judge accepted the evidence of Dr Low he was not entitled to find that her pain came from a disc bulge.

[63] Orthopaedic surgeon Dr Morris examined the appellant on 10 April 1996 and on 27 September 1996 for the Workers' Compensation Board. He concluded that she had had an intra-discal rupture to an L5/S1 disc which may take between 6 months and a year to settle. The injury was caused by shovelling sand or by simply straightening the back afterwards. The discs in her back must have had very little support and she was susceptible to injury. Dr Morris said that many activities such as lifting a 10-15 kilogram suitcase whilst holidaying would have produced the same stress to her back and could have resulted in the same pain. It was more likely than not that some other activity, quite apart from transferring the sand, could have produced the same degree of disability; such a disc was at risk and it is more likely that this injury would have occurred within weeks or months in any case, although it was possible the injury would never have become symptomatic. Her final disability once the short term pain settled would be between 5 and 7 per cent.

[64] Orthopaedic surgeon Dr Pentis prepared a medico-legal report for the appellant's solicitors after examining her on 31 March 1998. He thought the appellant had sustained soft tissue injuries and a derangement (a tear or injury) of the lower discs in the lumbar spine in her work activity causing her currently a 10 per cent incapacity to her spine. The appellant was overweight and unfit which put an added stress on her spine.

[65] His Honour was entitled to accept, as he did, the evidence of Dr Morris that the appellant "was a candidate for the emergence of painful symptoms in her back, in any event". His Honour's acceptance of the evidence of Dr Low related to his preference of Dr Low's evidence over that of Mr O'Sullivan as to work practices. Dr Low was not an orthopaedic surgeon but an expert in occupational health and safety; he had not examined the appellant; it was not essential in accepting Dr Low's evidence as to work practices to accept his version of the cause of injury to the appellant; in any case, Dr Pentis's evidence suggests the terms "derangement of the spine" and "disc bulge" may be interchangeable. Dr Morris' view that the appellant was at risk of developing painful symptoms was also supported by Dr Low and was not in conflict with Dr Pentis. The appellant has established no basis for overturning the facts found by the learned trial judge.

Is the respondent liable in damages for its breach of s 28(1) of the Workplace Health & Safety Act 1995?

[66] The final question is whether, on the judge's findings of fact, the respondent is liable in damages to the appellant for its breach of s 28(1).

[67] As we have already noted, the weights involved in the appellant's mode of moving the sand did not exceed the recommendations in the Code. The Code requires risk identification, assessment and control.[72] Risk identification is only the first step in identifying factors likely to cause manual handling injury and is aimed at identifying tasks likely to be a risk to health and safety; it requires identification and placing in priority order the jobs or tasks which require risk assessment[73] by an analysis of workplace injury records; consultation with employees and direct observation or inspection of the task or work area.[74] Only if any of these steps indicate the need for assessment is it necessary to move onto the second step, risk assessment. In this case it is not suggested there were any workplace injury records which identified the appellant's task as such a risk. Although there was no formal consultation between the respondent and its employees over this task, one employee, Ms Jewel, indicated that she had a back problem and it was accepted that she would not shovel the sand. There was no suggestion that the appellant or other employees raised or had concerns as to the safety of moving the sand in the manner undertaken. There was nothing unusual about the way the appellant was performing her work so that direct observation in this case would not identify a risk. As to risk assessment, the Code further provides:

"The existence of any of the following key risk factors, that is, a Yes answer, indicates the need for further assessment as outlined in section 4 - Risk Assessment.

1. Is there frequent or prolonged bending down where the hands pass below mid-thigh height?

2. Is there frequent or prolonged reaching above the shoulder?

3. Is there frequent or prolonged bending due to extended reach forward?

4. Is there frequent or prolonged twisting of the back?

5. Are awkward postures, assumed frequently or over prolonged periods, that is, postures that are not forward facing and upright?

6. Is manual handling performed frequently or for long time periods by the employee(s)?

7. Are loads moved or carried over long distances?

(a) more than 4.5 kg and handled from a seated position?

(b) more than 16 kg and handled in a working posture other than seated?

Note: Weight is not used to prescribe the absolute limits, but is one of the important factors to be considered when assessing and controlling risk

9. For pushing, pulling or other application of forces: are large push/pulling forces involved?

10. Is the load difficult or awkward to handle, for example, due to its size, shape, temperature, instability or unpredictability?

11. Is it difficult or unsafe to get adequate grip of the load?

13. Is the lighting inadequate for safe manual handling?

15. Are the floor working surfaces cluttered, uneven, slippery or otherwise unsafe?

16. Is the employee new to the work or returning from an extended period away from work?

17. Are there age-related factors, disabilities or other special factors that may affect task performance?

18. Does the employee's clothing or personal protective equipment interfere with manual handling performance?"[75]

[68] The appellant's shovelling and wheel barrowing the sand was infrequent and not prolonged and in our view did not require an affirmative answer to any of these questions;[76] most required an unequivocally negative answer.

[69] Even if the answer to any of those key risk factors was "yes", requiring further assessment, the next consideration is risk assessment which is defined[77] as "the identification of a risk involved with a manual handling task that is likely to be a risk to health and safety". The trial judge was entitled to conclude on the facts found by him that there was no likelihood of a risk to health and safety in the appellant moving the sand in the manner she adopted and no further risk assessment was necessary under the Code. The Code applies to every manual handling activity at a workplace[78] and is an advisory standard under the Act;[79] s 26(3) and s 37(1)(b) provide the relevant means of discharging that obligation or providing a defence to its contravention. The respondent will only discharge that obligation under s 26(3) by:

"(a) adopting and following a stated way that identifies and manages exposure to the risk; or

(b) adopting and following another way that identifies and manages exposure to the risk."

Alternatively, and to similar effect, the respondent will defeat the appellant's claim by establishing the defence under s 37(1)(b) by showing:

"(i) that the person adopted and followed a stated way to prevent the contravention; or

(ii) that the person adopted and followed another way that identified and managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention;

[70] In the absence of a reasonably foreseeable risk there is no room for further application of the Code. Indeed considerable artificiality attends any attempt to apply the Code of Manual Handling to such a simple ad hoc task. For example, the employer would have no workplace injury records to consult relevantly to such a task. However, whilst such an employer would not be in breach of the requirements of the Code, it would be difficult to say that the employer "adopted and followed" any stated way of managing the risk under s 26(3)(a) or s 37(d)(i).

[71] Accordingly, the respondent's defence can be found only in s 26(3)(b) or s 37(1)(b)(ii). The "other way" that the respondent followed was of course quite informal, but it does not necessarily fail on that score. The employer demonstrated that it was willing to listen to any employee who did not wish to undertake the task, as this is precisely what it did with Ms Jewel. The task was straightforward, ordinary and physically undemanding. It required the removal of a small quantity of sand over a short distance. It provided a suitable shovel and small wheelbarrow. It placed no pressure upon the employee to hurry or to accomplish the task within a particular time. It was a low risk manual task which was not susceptible to further consultations, inquiries or investigations. In the circumstances, the employer followed another way that gave the same level of protection against the risk as the managerial practices that were recommended in the advisory code would have given. That shows a defence under s 26(3)(b). Similarly, the above circumstances show a form of managed exposure to the risk and the taking of reasonable precautions and the exercise of proper diligence to prevent the "contravention" referred to in s 37(b)(ii). The contravention, of course, was the failure under s 28(1) to "ensure the workplace safety of the appellant at work.

[72] To find otherwise would be to create an offence for failing to formally identify and manage trivial risks such as when an employee bends down to pick up a pen or reaches to take a book from the shelf and the employee suffers a consequential injury; it is notorious that sometimes serious back injuries are possible in such circumstances. The legislature could not intend such an unjust and unworldly outcome and the interpretation that will best achieve the purpose of the Act is to be preferred.[80] The Act imposes penalties for its breach and is a penal statute requiring that if there are two reasonable constructions open, the more lenient one should be preferred.[81] The appellant's claim for breach of statutory duty must fail.

[73] These proceedings relate to an incident which preceded application of the WorkCover Queensland Act 1996. Therefore no consideration has been given in this case to arguable inconsistency between certain provisions in that Act, (especially s 312, s 313 and s 314) and the provisions of the Workplace Health and Safety Act that have been here considered. Questions concerning the effect of these Acts in combination must await another day.

[74] On the findings of the primary judge, the claim of negligence is not established and also fails. It is therefore unnecessary to consider quantum.

[2] [1998] 1 QdR 212.

[3] [1998] 1 QdR 212 at 217

[4] Appeal No 7477 of 1997, 22 September 1997.

[5] Appeal No 3072 of 1998, 1 December 1998.

[6] [1997] 1 QdR 29 at 40.

[7] Appeal No 5199 of 1998, 15 December 1998.

[8] Ibid, at [12]; see also Laws of Australia, 26.8 Occupational Health and Safety; Part B - Actions for Breach of Statutory Duty at [44].

[9] [1999] QCA 450; Appeal No 196 of 1999, 5 November 1999.

[10] [1965] NSWR 1558 where the Stevedoring Industry Act 1956-1962 (Cth) was found not to provide a civil cause of action. That Act provided:

(a) shall not act in a manner whereby the expeditious, safe or efficient performance of stevedoring operations is prejudiced or interfered with;

(b) shall, at all times, provide proper supervision of the performance of stevedoring operations by waterside workers engaged by him; and

(c) shall ensure that, as far as is practicable -

• (i) stevedoring operations for which he has engaged waterside workers are expeditiously, safely and efficiently performed; and
• (ii) the labour of waterside workers engaged by him for stevedoring operations is used to the best advantage.

(2) An employer who contravenes or fails to comply with a provision of the last preceding sub-section is guilty of an offence against this Act punishable upon conviction by a fine of not less than £100 and not more than £1,000."

The statute emphasised the expeditious and efficient use of waterside labour, albeit in a safe manner rather than being a statute for the safety of employees.

[11] [1999] QCA 450; Appeal No 196 of 1999, 5 November 1999 at [34].

[12] [1937] HCA 18; (1937) 56 CLR 464 at 477-478.

[13] [1957] HCA 25; (1957) 97 CLR 89 at 98.

[14] See also Kitto J in Sovar v Henry Lane Pty Limited [1967] HCA 31; (1967) 116 CLR 397 at 405.

[15] Such an approach is also consistent with s 14B of the Acts Interpretation Act 1954.

[16] [1970] HCA 22; (1969) 121 CLR 149.

[17] See also Czislowski v Read Press Proprietary Limited [1968] QdR 129, English v Comalco Products Pty Ltd [1972] QdR 52 and Wenck v Morris Woollen Mills (Ipswich) Pty Ltd [1974] QdR 142 where the Inspection of Machinery Acts 1951-1963 was held to create a private cause of action for an employee against his employer.

[18] See Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth), s 79; Occupational Health and Safety Act 1983 (NSW), s 22(1); Occupational Health and Safety Act 1985 (Vic), s 28; Work Health Act (NT), s 34; Occupational Health and Safety Act 1989 (ACT), s 95; Health and Safety at Work etc Act (UK), s 47(1)(a). On the other hand, the South Australian legislation specifically preserves "any civil right or remedy": see Occupational Health, Safety and Welfare Act 1986 (SA), s 6.

[19] Queensland Parliamentary Debates, vol 311, 16 March 1989, 3913.

[20] Macquarie Dictionary, 2nd revised ed, Macquarie Library Pty Ltd, 1991.

[21] (1987) 8 NSWLR 707.

[22] [1998] 1 QdR 212 at 217-219.

[23] Appeal No 3072 of 1998, 1 December 1998 at [14]-[16].

[24] [2000] QCA 17; Appeal No 9022 of 1998, 11 February 2000.

[25] See Kitto J's discussion in Sovar v Henry Lane Pty Limited [1967] HCA 31; (1967) 116 CLR 397 at 405-406 and Glass & McHugh, The Liability of Employers in Damages for Personal Injury, Law Book Company Ltd, 1996 at 126.

[26] [1937] HCA 18; (1937) 56 CLR 464 at 478.

[28] [1949] AC 398, 417.

[29] ([995] 3 All ER 353, 365; cf Salmond & Heuston above at 250.

[30] [1965] NSWR 1558 at 1566.

[31] Queensland Parliamentary Debates, vol 332, 22 March 1995, 11231-11233.

[34] cf Leask Timber and Hardware Pty Ltd v Thorne [1961] HCA 73; (1961) 106 CLR 33 at 44, where the scope and purpose of the Act was not employee safety but a licensing scheme.

[35] See Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 840.

[36] Appeal No 5199 of 1998, 15 December 1998 at [4].

[37] Laws of Australia, 26.8 Occupational Health and Safety: Part B - Actions for Breach of Statutory Duty at [44].

[40] See s 41 of the Act and the Workplace Health and Safety (Advisory Standards) Notice 1995.

[41] Workplace health and safety obligations, ss 23-37.

[45] Obligations of employers and others.

[46] Obligations of workers and other persons.

[47] Acts Interpretation Act 1954 s 14(6).

[48] It amounts to "material that is set out in the document containing the text of the Act as printed by the Government printer" within the definition of "extrinsic material" in s 14B(2).

[55] Code of Practice for Manual Handling (1991), 1.2.

[60] [1966] HCA 67; (1966) 116 CLR 200.

[61] (1985) 155 CLR 342.

[62] (1998) 70 SASR 414.

[63] SASC No 328 of 1990, 9 August 1990 (Full Court).

[64] Law Book Company Ltd, 1966, 130-131.

[68] Queensland Parliamentary Debates, vol 332, 22 March 1995, at 11233.

[69] This Act, now repealed, was the relevant Act at the time of the appellant's injury.

[70] Photographs of a similar spade and wheelbarrow were tendered, although the appellant said there was no "D" grip on the spade handle.

[76] As to Q 16, the appellant had probably not shovelled sand before (Reasons, 8) but as the task was an everyday activity; the quantity of sand not large; the method of moving the sand was chosen by the appellant and Ms Martin, and there was nothing unusual about the way the appellant did the work, an affirmative answer need not have been given had the hypothetical questions been asked.

[80] Acts Interpretation Act 1954, s 14A.

[81] Tuck & Sons v Priester (1887) 19 QBD 629 at 638.