Schulz v Schmauser & Anor [2000] QCA 17

Judgment (104 paragraphs)

[1]

[1] McMURDO P: I agree with Pincus JA that the appeal should be dismissed with costs for the reasons given by him in [13] to [28] of his reasons.

[2]

[2] It is strictly unnecessary to decide in this case whether a breach of s 9 of the Workplace Health and Safety Act 1989 ("the Act") creates a private right of action, but, as other members of the Court have expressed their views on this issue, it is best that I add mine which is that breach of s 9 of the Act does give rise to a civil cause of action.

[3]

[3] Dixon J (as he then was) in O'Connor v S P Bray Ltd[1] noted, when considering the issue of whether a statute created a civil cause of action, that:

[4]

"... The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct and does no more than penalize 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."

[5]

[4] In Australian Iron and Steel Ltd v Ryan[2] Kitto J noted that:

[6]

"... 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 p 407."

[7]

[5] The Act is of the type mentioned by Dixon J in that it does not express whether or not its intention is to give a private right of action for a breach of s 9, which provides:

[8]

"Employers to ensure health and safety of their employees.

[9]

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

[10]

"(a) to promote and secure the health and safety of persons performing work;

[11]

(b) to protect persons performing work from risks to health and to safety;

[12]

(d) to assist in securing safe and hygienic work environments;

...

(f) to promote an occupational environment for persons performing work that is adapted to their physiological and psychological needs;

(g) to reduce, eliminate and control risks to the health and safety of persons performing work;

(h) to foster co-operation and consultation between employers and employees and associations representing employers and employees and to provide for the participation of those persons and associations in the formulation and implementation of health and safety standards to current levels of technical knowledge and development;

(i) to provide for formulation of policies and for co-ordination of the administration of laws relating to workplace health and safety;

...

(j) to protect and to promote and secure the health and safety of persons operating or using any plant of a kind specified in the Third Schedule and any person who may be affected by such operation or use."[3]

It is helpful in determining this issue to consider the relevant First and Second Reading Speeches.[4]

[13]

[6] The Minister noted, when presenting the Workplace Health and Safety Bill for its First Reading in March 1989, that the Bill was:

[14]

"... to consolidate and amend the laws relating to securing the health and safety of persons performing work, protecting persons, other than employees, and members of the public from danger from such work, protecting persons from risks to health and safety from certain plant, to repeal the Construction Safety Act 1971-1987 and the Inspection of Machinery Act 1961-1987, to amend the Factories and Shops Act 1960-1987 and the Health Act 1937-1988 and for related purposes."[5]

[15]

[7] The legislation which was replaced by the Act was of the type that imposed duties comparable to the duties imposed in the cases set out by Pincus JA in [32] of his reasons and in which statutory duties have been held or assessed to give a private right of action. See for example, Forrest v John Mills Himself Pty Ltd,[6] where a civil cause of action was held to be created by s 21(2)(a) of the Inspection of Machinery Acts 1951-1966 which required that:

[16]

"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."

[17]

See also Czislowski v Read Press Proprietary Limited,[7] English v Comalco Products Pty Ltd[8] and Wenck v Morris Woollen Mills (Ipswich) Pty Ltd.[9]

[18]

[8] In the Second Reading Speech of the Workplace Health and Safety Bill the Minister noted:

[19]

"... 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; owners, designers, manufacturers, importers or suppliers of plant, such as lifts and amusement devices must ensure such machinery is safe for the public to use. 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."[10] (my emphasis)

[20]

[9] "Reinforce" means "to strengthen with some added piece, support, or material; ... to strengthen; to make more forcible or effective; to augment; increase".[11]

[21]

[10] The duty imposed by s 9 is for the protection or benefit of a particular class of persons, namely employees, and not to the general public: see O'Connor v S P Bray Ltd[12] and Byrne and Frew v Australian Airlines Ltd.[13] It adds to that imposed at common law. Negligence need not be established; s 9 requires the employer to specifically ensure the health and safety at work of employees except where not practicable, the onus being on the employer to demonstrate impracticability: Kingshott v Goodyear Tyre & Rubber[14] and Rogers v Brambles Australia Ltd.[15]

[22]

[11] The scope of the Act in its historical and policy context demonstrates its intention to add to the common law duty of care in the interests of employee safety; legislation directed at employee safety is generally considered as giving rise to a correlative private right unless the scope of the legislation suggests otherwise: see Dixon J in O'Connor v SP Bray Ltd[16] and John Pfeiffer Pty Ltd v Canny.[17] In some jurisdictions comparable legislation specifically excludes civil causes of action: 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).[18] The absence of any exclusion in the Act is significant.

[23]

[12] For these reasons and for the reasons given by Pincus JA, I am satisfied that Rogers v Brambles Australia Limited[19] correctly recognised that breach of s 9 provides a civil cause of action.

[24]

[13] PINCUS JA: This is an appeal from a judgment for the defendant in an action for damages for personal injuries. The appellant's case, as pleaded, was that in the course of his duties as an employee of the respondents, who carried on the business of landscape gardening, he had to perform a task which in summary was as follows. First, the appellant had to add oil to a 30 litre full drum of fuel, in order to produce a suitable mix for use with a chainsaw. Then, the pleading said, after adding oil to the fuel (this was done to make two-stroke fuel) the appellant lifted the drum from the floor and shook it vigorously from side to side to mix the oil with the fuel. The next allegation in the pleading was that the appellant had to pour the mixed fuel into a small cordial container. I now quote -

[25]

"The plaintiff, whilst bending over, held the drum horizontally, with one hand on the handle thereof and the other hand beneath the drum. Because of the size of the funnel, and the use of the small container, the Plaintiff had to pour slowly and, therefore, maintained that posture for some time. The Plaintiff experienced a snap in his lower back followed by pain and discomfort in that region".

[26]

[14] At the hearing, the appellant gave a rather different version of the incident, but it had in common with the pleaded version that the injury occurred while the appellant was attempting to pour fuel from the full 30 litre drum, using a funnel, into a bottle. The essential difference between the version pleaded and that given at the trial was that, in the latter, the appellant said that he supported the drum between his knees while pouring the fuel into the bottle. It seems clear that this account of the matter had been put forward by the appellant before the trial, because an expert who gave evidence for the appellant at the trial (Mr Brendan McDougall), was instructed to assume that the appellant's injury happened in the way to which the appellant swore at the trial. The judge's findings, made after discussing the evidence and the credibility of the witnesses, were as follows:

[27]

" . . . I am satisfied that Mr Schulz hurt his back when he lifted a drum by its handle, and that this happened before any two-stroke fuel was mixed. I am not satisfied Mr Schulz poured [two-stroke] fuel into a two litre plastic bottle and injured himself while doing so. All the evidence indicates that the drums contained twenty or thirty litres, and, when full, weighed no more than about twenty-two kilograms. The drum which was tendered has a carrying handle designed for a one handed grip".

[28]

The learned primary judge rejected the appellant's case, finding that there was no negligence on the part of the respondents.

[29]

[15] The notice of appeal contained no challenge to the judge's rejection of the appellant's account of the way in which he was injured, nor did the outline of argument do so. The appellant's complaint is that the judge did not deal with a claim, which was pleaded, for damages for breach of statutory duty. The breach relied on was one of s 9 of the Workplace Health and Safety Act 1989. It is common ground that the relevant provision, s 9, gives rise to a civil cause of action, although on its face it merely creates an offence. The cause of action is one for failing "to ensure the health and safety at work of all the employer's employees, except where it is not practicable for the employer to do so". The word "practicable" is elaborately defined in s 6 to mean practicable having regard to a number of factors, including the degree of risk. The appellant's argument is that s 9 was, prima facie, breached and the circumstances were such that the respondents had to plead and to prove, the onus being on them, that suggested remedial measures were impracticable.

[30]

[16] As for the pleading, it is my view that the respondents only had to plead to defend themselves against such a case as was put forward in the statement of claim, no amendment of which was ever sought. The question raised by the appellant's pleading, both as to common law negligence and breach of statutory duty, had to do with the risks associated with the appellant holding the full drum up to pour the mixed fuel slowly into the bottle, maintaining his posture for some time. The judge has found that the accident happened in quite a different way, namely that the appellant hurt his back when he lifted a drum by its handle, before any fuel was mixed.

[31]

[17] That is, the difficulty about the appellant's complaining of the respondents' allegedly defective pleading and proof, with respect to the circumstances found by the judge, is that those circumstances were substantially different from those pleaded and of course different from those sworn to at the trial. Leaving aside the problem that there was no finding that the drum when lifted had any quantity of fuel in it, at worst for the respondents all the appellant did was to lift a weight slightly in excess of what used to be the ordinary baggage limit for people travelling by air - 20 kgs. It would be strange to hold that a weight of that order, regularly lifted by elderly and unfit people, could not be lifted by this outdoor manual worker without breach of statute law.

[32]

[18] It was contended for the appellant that to remedy the deficiency in the judge's reasons - that his Honour did not deal with the statutory duty case - the appropriate procedure would be as follows: this Court should, it was said, examine the evidence and if it was satisfied that it proved the plaintiff's case give judgment for the plaintiff; if not, the argument was the case should be remitted to the Trial Division. There is a degree of unfairness about this proposal insofar as it offers the appellant, but not the respondents, the chance of final victory on either of two levels of reconsideration of the matter. Counsel for the appellant said in effect that the evidence showed that the drum which, according to the judge's finding, was lifted by the appellant was a 30 litre drum full of fuel. The judge did not find either that it was a 30 litre drum or that it was full of fuel. Nor, although the contrary was argued, is there any evidence upon which the Court could hold that the trial judge must have found either point in favour of the appellant.

[33]

[19] The judge's approach to the matter depended on acceptance of, not the appellant's version, but that given by a Mr Muller who said:

[34]

"[the plaintiff] bent down, picked up this drum by the handle on the top, something like that, I guess 20 litre drum, whether it was full or not I don't know, and he picked it up and about that high off the ground, dropped it, said, 'I've done my back', stood up, 'I've done my back' and walked out".

[35]

Muller said the drum was lifted five or six inches and at that stage no mixing of fuel had occurred in his presence. The respondents' pleading was criticised, before us, on the basis that it did not refer to the account given by Muller. The argument was that if the respondents wished to put forward a case that the appellant suffered his injury in a way different from that pleaded then, that should have been included in the defence. In my opinion it is correct that, if a defendant wishes to set up against the plaintiff that the injury complained of occurred in a way substantially different from that pleaded, the defendant's version should be foreshadowed in its pleading. Counsel for the respondents points out that it was no part of the respondents' case that the appellant was injured in the way Muller said; they merely led evidence that the appellant complained of an injury, after the incident Muller described. But it is, as it appears to me, unnecessary to determine whether, in the rather unusual circumstances of this case, the respondents were obliged to plead the incident, which they did not concede led to any injury, of which Muller spoke. That is so because Muller's account was put to the first witness, the appellant, without any suggestion being made that its not having been pleaded embarrassed the appellant. It appears to me proper to infer, from the fact that no objection on inadequacy of pleading was advanced below, that reliance on Muller's version did not take the appellant by surprise: O 22, r 14.

[36]

[20] I understood counsel for the respondents to concede that if one accepted the appellant's version of what occurred it would be proper to accept that the drum in question was one of 30 litres, and full; that was so although the appellant seemed to be relying on his solicitors' advice, as to the size of the drum. But, the appellant's version of his injury being rejected, there appears to be nothing in the evidence to justify a finding, on either point, with respect to the drum spoken of by Muller. He said that he guessed the drum lifted was 20 litres, but did not know whether it was full or not; no other evidence took that matter further. Counsel for the appellant pointed out that the witness Humphries made a statement referring to a 30 litre container, but that does not assist the appellant, since there is nothing to identify that container with the one which, on the unchallenged finding, Muller saw being lifted slightly by the appellant.

[37]

[21] For the reason just given, that the only witness who might have been able to give details of the size and state of fullness of the relevant container, Muller, could not do so, it is difficult to see the point of remitting the matter to the Trial Division to enable findings to be made with respect to the claim for breach of statutory duty. But counsel for the appellant advanced an argument which appeared, if accepted, to make a finding about the size or contents of the container which Muller saw being lifted irrelevant. It was argued that since the judge found that the act of lifting which Muller observed caused injury, that in itself established a prima facie breach of s 9(1) of the Workplace Health and Safety Act 1989:

[38]

"An employer who fails to ensure the health and safety at work of all the employer's employees, save where it is not practicable for the employer to do so, commits an offence against this Act".

[39]

[22] The authority upon which counsel for the appellant principally relied to support this contention was Peachey v Mount Isa Mines Limited [1998] QCA 400; Appeal No 3072 of 1998, 1 December 1998. There it was found that hard-soled boots with which the employee was supplied by the employer were a cause of foot trouble which the plaintiff suffered; onset of the symptoms would, but for the nature of the boots supplied have been postponed for 22 years; from this it may be deduced that the plaintiff's feet were particularly susceptible to injury. There was held to be a breach of s 9(1). The plaintiff proved that it was the supply of the hard-soled shoes, rather than shoes of a different type, which caused the injury. In this way the injury was traced back to an act of the employer.

[40]

[23] In the present case, one cannot reach a similar conclusion. All one can say on the judge's finding, is that the appellant lifted for a short distance a drum, weight unknown but not exceeding 22 kgs. The contention which was put in this Court was that it was proved that the drum in fact weighed 22 kgs; that is not so. So the appellant's case is reduced to the proposition that however heavy or light the drum, picking it up caused the injury and therefore the respondents, the appellant's employers, must necessarily be held to have failed "to ensure the health and safety at work" of the appellant. The argument would make any lessening of the employee's health or safety, while at work - for example, a migraine or a heart attack - a prima facie breach of the statute. It is my opinion that one should not readily attribute to the legislature an intention which reaches such a result, one hard to reconcile with the spirit of observations (quoted below) which were made when the relevant Bill was before the Parliament.

[41]

[24] Unlike Peachey's case, there was no proof here that any act or omission of the employers caused the injury. It was not shown that anything caused it other than the appellant's decision to pick up the container. Since the appellant's evidence as to the way the accident happened was rejected, there is nothing to show for what immediate purpose the container was lifted. There is no evidence that the appellant was directed to lift it, nor that the lifting was done to conform to a system of work laid down or implicitly approved by the respondents.

[42]

[25] It appears to me that a breach of s 9 of the statute is not shown unless the injury is first causally connected with an act or omission of the employer. Otherwise one would reach the position which was referred to in Peachey as having been rejected by the primary judge:

[43]

"that liability under s 9(1) of the Act is established merely through the respondent proving injury at work".

[44]

It is true that s 9(1) does not make clear that the employer is not liable, prima facie, as having committed an offence, whenever an employee suffers an injury, or diminution of health, while at work; but it appears that the better view of the provision is that which I have stated, which avoids the absurdities which could follow if it were held otherwise. This approach to the statute receives some support from the second-reading speech presented on 16 March 1989 by the Minister responsible for the introduction of the relevant Bill (Hon V P Lester). The speech, apparently referring to s 9 and other provisions, included the following:

[45]

"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 ... 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".

[46]

[26] That is enough to dispose of the appellant's contention, but since the matter was argued and may arise again it is desirable to discuss the issue of practicability; the appellant's counsel pointed out that no issue as to practicability was raised in the defence. The appellant's counsel relied on the result of Peachey in this connection, but there the argument relating to practicability was abandoned. Here, if the judge had held that the injury, sustained in the way sworn to by Muller, showed a prima facie breach of s 9(1) of the Act, the appellant's counsel below could hardly have succeeded on the basis that practicability was not mentioned in the respondents' pleading; that was so because the incident mentioned by Muller could not be identified with that pleaded by the appellant, nor even with that sworn to in the appellant's evidence. It would in my opinion have been necessary, strictly speaking, if the appellant wished to base an alternative case on Muller's evidence, for him to seek leave to amend his pleading; that would have given the respondents an opportunity to amend in response and, if they chose, to call further evidence. Of course, the matter might have proceeded less formally, without an amendment, the parties concurring in litigating on the basis that the plaintiff was running an alternative case on the Muller account; plainly, that did not happen. The expert evidence, for example, was directed to the appellant's account; the expert witnesses were not questioned by counsel for the respondents about the changes which acceptance of Muller's version would have made to their opinions about the safety of the operation.

[47]

[27] But apart from that, on such evidence about the topic as was available, in my opinion the respondents would have been entitled to succeed on the issue of practicability. Since it did not appear that the container mentioned by Muller was of such a weight as to be likely to involve "potential injury or harm to health or safety", consideration (b) in the definition of "practicable" (see s 6), as well as consideration (d), were relevant:

[48]

"(b) the severity of any potential injury or harm to health or safety that may be involved, and the degree of risk that exists in relation to such potential injury or harm

[49]

(d) the availability and suitability of ways to prevent, remove or mitigate that injury or harm to health or safety or risk".

[50]

The appellant was a labourer employed by a landscape gardener and his duties had included work such as building a very large retaining wall with blocks of about 20 kgs weight; it would hardly have been practicable, if the appellant was to continue in his employment, so to cosset him as to avoid any risk of stress or strain on the spine, major or minor. It would of course have been practicable to dismiss him, but failure to do so would hardly be a breach of s 9(1).

[51]

[28] It appears from the medical evidence that according to the appellant's statement, simply bending over to pick up shoes was capable of causing "an acute relapse in his back pain". The view taken was that at the time of the injury complained of the appellant had, unknown to the respondents, degenerative disc disease, which had caused significant prior problems. In determining the question of practicability, which includes consideration of the state of knowledge of the risk (para (c) of the definition of "practicable") the Court must take into account whether the employer had reason to think the employee to be particularly vulnerable to a certain sort of injury; Peachey, where the defence of practicability was abandoned, does not touch this point.

[52]

[29] Since writing the above I have noticed the decision of this Court in Castle v Weeks [1999] QCA 450; Appeal No 196 of 1999, 5 November 1999, in which there is to be found discussion of the decision in Smith v Macquarie Stevedoring Co Pty Ltd (1965) 67 SR (NSW) 32. Although the question was not argued in the present case, it is desirable to express a view on the application of the Macquarie Stevedoring case to reach the result that s 9 of the Workplace Health and Safety Act 1989 gives no cause of action to injured employees.

[53]

[30] There is in my opinion a number of reasons for thinking that the Macquarie Stevedoring case should not be treated as authority demonstrating that Rogers v Brambles Australia Limited [1998] 1 Qd R 212, was wrongly decided. The reasons are-

[54]

(a) The point that there was no cause of action because the statute prescribed no specific precautions was not argued in the Macquarie Stevedoring case. Two judgments were written, only one of which (that of Wallace J) dealt with the matter.

[55]

(b) Presumably because the point was not argued, the Court made no reference to any decided case in which an employee succeeded on the basis of breach of a statutory duty, rather generally expressed; there appear to be authorities of that sort in the reports.

[56]

(c) Wallace J, in the Macquarie Stevedoring case treated the obligation there in question as creating no duty higher than or different from that which the general law provided (44). That cannot be said of the statute in question here.

[57]

[31] I will elaborate on the second and third points. As to the second, the duty imposed by s 9 is not identical with that imposed by the general law. That is so because, whereas under the law of negligence there is merely a duty of reasonable care, under s 9 the duty is absolute subject to the important reservations arising from the expression "save where it is not practicable for the employer to do so" and the definition of the word "practicable" in s 6. It has to be conceded that much of what is said in the definition would be relevant under the general law; nevertheless, the point remains that the legislature has chosen not to define the duty as being one of reasonable care, but to define it more elaborately.

[58]

[32] A point which to my mind weakens the authority of Macquarie Stevedoring is the absence of any reference to decisions in which generally expressed statutory duties have been held or assumed to give a right of action. The following citations do not I think include all such cases:

[59]

(a) Ching v Surrey County Council [1910] 1 KB 736: the statutory duty was to "maintain and keep efficient all public elementary schools". A pupil injured by a defect in the playground succeeded;

[60]

(b) Blundy, Clark and Company Ltd v London and North Eastern Railway Company [1931] 2 KB 334: the duty was to "keep and maintain [certain works] well and sufficiently repaired ...";

[61]

(c) Galashiels Gas Co v O'Donnell or Millar [1949] UKHL 2; [1949] AC 275: "every hoist or lift shall be ... properly maintained";

[62]

(d) Marshall v Gotham Co Ltd [1954] AC 360 and Grant v National Coal Board [1956] AC 649: "the roof and sides of every travelling road, outlet and working place shall be made secure";

[63]

(e) Westwood v Post Office [1974] AC 1. Floors were required to be "of sound construction".

[64]

(f) Bruce v Ben Odeco Ltd [1996] SLT 1315: "[a]ll parts of every offshore installation and its equipment shall be so maintained as to ensure the safety of the installation and the safety and health of the persons thereon".

[65]

In each instance I have extracted a small part of the relevant statute; it does not appear to me that reference to other parts falsifies the conclusion, which is that in each instance rather generally expressed duties have been treated as giving rise to a cause of action.

[66]

[33] A question of the validity, as opposed to the effect as creating a right of action, of regulations of the relevant kind was dealt with in Jacob v Utah Construction and Engineering Pty Ltd [1966] HCA 67; (1966) 116 CLR 200. Observations made in the High Court (at 216) suggest that the regulations might have been ultra vires if they imposed too general a duty; that does not appear to have any bearing upon the present problem, since the question litigated was whether the statute properly construed authorised the regulations. But it is of interest to note that there no question was raised about the effect of the regulations, if valid, as giving rise to a cause of action.

[67]

[34] So far as my researches have gone, I have found no reported decision in which the view taken by Wallace J in Macquarie Stevedoring prevailed - i.e. in which a statutory provision having the purpose of protecting employees' health or safety was held not to give rise to a civil cause of action because of the width or generality of its operation. I should think it clear that a provision, if a legislature were foolish enough to enact one, making an employer criminally liable for any injury suffered by employees as a result of their work would be held not to create a civil cause of action. Here the statute is of a different character, for the exception based on lack of practicability, together with the generosity of the definition of "practicable" substantially reduce the strictness of the obligation imposed. It is true that the statute goes further than others having a similar purpose, in that it does not deal with particular likely causes of injury, such as an unsafe place of work or unfenced machinery, but that does not appear to me sufficient ground to hold that no action for breach of statutory duty may be based on s 9. It is a little artificial to say that (for example) a statute requiring that dangerous machinery be "securely fenced" (John Summers & Sons v Frost [1955] AC 740) creates a civil cause of action, but one phrased as s 9 is does not, if a person working at the dangerous machine is injured by it.

[68]

[35] (i) The appellant's sworn case, differing to some extent from his pleading, was that he was injured while holding a fairly heavy drum between his knees for a significant period of time, in order to pour fuel into another container.

[69]

(ii) That was rejected and the judge found that the injury was sustained when the appellant picked up a drum, its weight unknown, but known not to exceed 22 kgs.

[70]

(iii) The appellant had to show, in order to succeed on his case of breach of statutory duty, some causal connexion between an act or omission of the employer, and the injury; in that he failed.

[71]

(iv) If the issue of practicability had arisen, a prima facie breach of s 9(1) of the Workplace Health and Safety Act 1989 being shown, the employer would have been entitled, on the evidence, to succeed on that issue.

[72]

[36] DOUGLAS J: I have had the advantage of reading in draft the reasons of Pincus JA with which I agree in the result and in particular with his conclusion that a breach of s 9 of the Workplace Health and Safety Act 1989 is not shown unless the injury is first causally connected with an act or omission of the employer.

[73]

[37] However, the appellant in this case relied solely on an argument that s 9 gave rise to a civil cause of action and conceded that in respect of the common law action the appeal was unarguable. It is therefore necessary to consider whether s 9 does have such an effect.

[74]

[38] In Rogers v Brambles Australia Ltd [1996] QCA 437; [1998] 1 Qd R 212 this court found that the section did give rise to a civil cause of action in circumstances where that point was conceded before it. In Heil v Suncoast Fitness (a Firm) [1998] QCA 419; (Appeal No 5199 of 1998, 15 December 1998, unreported) it was held that s 10 of the Act did not give rise to a civil cause of action. In that case at pages 7-8 McMurdo P and Pincus JA said:

[75]

"Summarizing the whole of ss 9 to 14 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."

[76]

[39] The effect of s 9 of the Act was not argued in Heil. The view of their Honours must be regarded as obiter and that case does not, therefore, decide authoritatively, that s 9 necessarily gives rise to any civil cause of action. There is no precise test prescribed by s 9. Nor is there any warrant for it to be determined as "an exception" and as such give rise to any civil cause of action.

[77]

[40] In Fleming, The Law of Torts, 9th Edition at 141-142 the author states:

[78]

". . . there is really no justification for invoking any criminal statute in support of an accident claim unless the statute prescribes a fixed standard of conduct as a substitute for that of the reasonably prudent person, which ordinarily guides the decision of judge and jury. It is only when the very object of the legislation is to put beyond controversy whether the particular precaution is one which ought to be taken, that the doctrine of statutory negligence has any legitimate place. Thus it is easy enough, and quite proper, to infer an intention to create correlative private rights from the enactment of specific safety measures to be observed in the operation of industrial equipment or the layout of premises. On the other hand, to give the same effect to a statute which does not address itself to the observance of specific precautions, but merely utters an open-ended exhortation for "expeditious, safe and efficient performance" or "merely enjoins the end but not the means" like prohibiting the driving or selling of a defective vehicle would make the offender an outright insurer and thereby impose a burden far in excess of the standard of reasonable care . . ."

[79]

[41] When one goes to the authorities referred to in that passage the following emerges. In O'Connor v S P Bray Ltd [1937] HCA 18; (1936-7) 56 CLR 464 at 478 Dixon J said:

[80]

". . . 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."

[81]

[42] That provision was clause 31(b) of the regulations to the Scaffolding and Lifts Act 1912 (NSW) which compelled the provision of safety gear for all lifts except those on which no person travelled.

[82]

[43] However, the provisions of s 33(1)(c)(i) of the Stevedoring Industry Act 1956 (Cth) which provided relevantly,

[83]

"A registered employer - shall . . . ensure that, as far as practicable - stevedoring operations . . . are . . . safely and efficiently performed . . ."

[84]

were considered in Smith v Macquarie Stevedoring Co Pty Ltd [1965] NSWR 1558 where Wallace J, at 1566 said:

[85]

". . . no higher or even different duty is imposed by the provision than obtained under the pre-existing general law . . . Secondly, no 'specific' precaution for the safety of others is thereby imposed.

[86]

These factors seem to me to govern the decision we have to make. It is true enough to say that in addition to the requirements of expedition and efficiency the safety of waterside workers and perhaps others is a general legislative objective but 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."

[87]

[44] That provision is remarkably similar to s 9. In my opinion s 9 of the Act does not give rise to a private cause of action by a person injured as a result of a breach of its terms. The reasoning of Wallace J in my view is correct as is the passage in Fleming referred to in para [40] above relying particularly on O'Connor (supra). Both should be adopted in this case. It follows then that the concession made in Rogers v Brambles (supra) was wrongly made.

[88]

[1] [1937] HCA 18; (1937) 56 CLR 464, 477-478.

[89]

[2] [1957] HCA 25; (1957) 97 CLR 89, 98.

[90]

[4] S 14B, Acts Interpretation Act 1954.

[91]

[5] Queensland Parliamentary Debates, vol 311, 16 March 1989, 3912.

[92]

[6] [1970] HCA 22; (1969) 121 CLR 149.

[93]

[7] [1968] Qd R 129.