St Vincent's Hospital Toowoomba Ltd v Hardy [1998] QCA 86

His Honour was not satisfied that any real problems would have been "caused by cleaners using lifts at a time when they were not immediately required by patients". He thought that the defendant should have at least permitted the use of a lift, if not encouraged or required its use.

His Honour was satisfied that there was "some policy of official discouragement of cleaners from using lifts except when there was some good reason to do so . . .". He found that but for that policy the plaintiff would have used the lift on the occasion in question and that the employer's policy was not justified "at least to the extent that it served to discourage the plaintiff from using this particular lift at this time". There was a finding to the effect that it would have been safer for the plaintiff to go up and down using the lifts rather than the stairs; the appellant does not contest that view.

The judge found for the plaintiff in negligence and also for a breach of statutory duty, holding that the defendant was in breach of s. 9 of the Workplace Health and Safety Act 1989 (which has been repealed by s. 206 of the Workplace Health and Safety Act 1995). In argument before us counsel concentrated on the breach of statutory duty case and the appeal can be disposed of without considering the judge's conclusions under the general law.

Section 9 of the Workplace Health and Safety Act 1989 read in part as follows:

"9.(1) An employer who fails 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, commits an offence against this Act".

Section 9(2) gives what might be described as examples of the way in which the offence might be committed, but there is no need to discuss them. The word "practicable" is defined, in a way which extends its meaning somewhat, in s. 6(1):

" `practicable', means practicable having regard to -

(a) the nature of the employment or, as the case may be, the particular aspect of the employment concerned; and

(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; and

(c) the state of knowledge about the injury or harm to health or safety that may be involved, about the risk of that injury or harm to health or safety happening and about any ways of preventing, removing or mitigating that injury, harm or risk; and

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

(e) whether the cost of preventing, removing or mitigating that injury or harm to health or safety or that risk is prohibitive in the circumstances;"

It was not disputed by counsel for the defendant, before us, that the plaintiff had, as an employee, a right of civil action for breach of s. 9(1). Further, counsel accepted that the onus of establishing the existence of the exception mentioned in s. 9(1) is on the employer; that accords with a decision of this Court in Rogers v. Brambles Australia Ltd [1998] 1 Qd.R. 212.

It will be noted that consideration of whether a particular measure is "practicable" necessitated the Court's thinking about the degree of risk in relation to potential injury or harm, the employer's state of knowledge on various subjects, and the question of cost, among other matters. The case is one in which, because of the breadth and variety of the considerations made relevant by the statute in considering the question of practicability, the defendant might have been thought to have had good prospects on that issue; but the primary judge has, for reasons which need not be set out here, decided the issue against the defendant and that is not now challenged. The sole argument advanced with respect to the case based on breach of statutory duty is that, so counsel for the defendant said before us, s. 9(1) should be read as if it applied only to measures necessary to avert reasonably foreseeable harm to an employee. If accepted, that argument would require s. 9(1) to read as if it included the words underlined:

"An employer who fails 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, and except where harm to the employee is not reasonably foreseeable, commits an offence against this Act".

Considering the matter without reference to authority, this argument does not seem to be compelling. If one simply reads the word "ensure" as meaning "make sure of", it does not appear that any absurdity would follow; the result would be that the causing of any injury to an employee at work which could by some means have been prevented by the employer constitutes an offence unless the circumstances were such that it was not "practicable", in the defined sense, for the employer to take the preventive step in question. A Court might hold that the suggested remedy was not "practicable" because, for example, the risk of injury was low, the possible ways of preventing it not very suitable, and the cost of implementing them too high. In such a case as the present, for example, the conclusion might be that the employer was not in breach because of the low risk to persons such as the plaintiff associated with use of the stairs, and because of overcrowding of lifts which might have ensued if the cleaners routinely used the lifts. But, as we have mentioned, the judge held and it is now common ground that the requirement of practicability was satisfied.

Counsel for the appellant did not dispute that it would be safer for the plaintiff to use the lift rather than the stairs, nor did he say that a fall on the stairs was not foreseeable; he submitted that such a fall was not sufficiently foreseeable to satisfy the requirement which, he contended, should be read into the statute. We find it unnecessary to consider to what extent a fall was foreseeable, for we are of the view that the provisions of s. 9(1) should not be read as if foreseeability was a requirement. The sorts of considerations a court would have regard to in dealing with an issue of foreseeability are, to some extent, made relevant by the definition of the word "practicable"; we refer in particular to paras. (b) and (c) of the definition.

To this point we have considered the matter without reference to authority. What might be called the literal construction of s. 9(1) is supported by the view of Matthews P. as to the meaning of s. 20(a) of the Construction Safety Act 1971, which required a contractor to "ensure that the provisions of this Act are complied with or, as the case may be, are not contravened on the site". The judge in Electrical Power Transmission Pty Ltd v. Robinson [1974] 2 Q.L. 329, expressed the view that in the context the word "ensure" meant "make certain" or "make sure". Then there is a series of decisions on s. 15 of the Occupational Health and Safety Act 1983 (N.S.W.) which required by subs. 1 that:

"Every employer shall ensure the health, safety and welfare at work of all his employees."

As here, there was a statutory defence of impracticability; s. 53 enabled the employer to escape liability if it was "not reasonably practicable" to comply with the Act. It was consistently held that the word "ensure" was to be construed in a way which accords with the view which we have expressed above: Shannon v. Comalco Aluminium Ltd (1986) 19 I.R. 358 at 359, Gardner Bros. Pty Ltd v. McAuliffe (1986) 15 I.R. 477, State Rail Authority of New South Wales v. Dawson (1990) 37 I.R. 110. In Dawson's case the Industrial Commission of New South Wales expressed the view that under the New South Wales section there was an:

". . . absolute duty cast upon an employer to ensure (in the sense of guaranteeing, securing or making certain) an employee's health, safety and welfare at work; and that is subject only to the statutory defences available under s. 53 . . .".

In summary, we are of the view that, contrary to the argument for the appellant, the word "ensure" in the Workplace Health and Safety Act 1989 s. 9(1) meant "make certain" or "make sure". And the section did not impose, expressly or implicitly, any test of reasonable foreseeability. Since the appellant's argument depended on that issue of construction being decided in its favour, the appeal on liability must fail.

As we have mentioned, it is common ground that, because of a slip with respect to damages under the principle of Fox v. Wood [1981] HCA 41; (1981) 148 C.L.R. 438, the damages must be reduced from the sum assessed to $19,379.79. The only question raised on behalf of the appellant with respect to costs was that, so it was said, the plaintiff should be allowed costs only on the Magistrates Court scale, because the amount ultimately recovered does not exceed $20,000: see r. 363A(3) of the District Courts Rules. In our opinion the case was one in which, in all the circumstances, it was a proper course to pursue the claim in the District Court and the plaintiff's costs should not be limited in the way suggested.

1. Appeal allowed to the extent of reducing the judgment in favour of the plaintiff respondent to $19,379.79.

3. The appellant is to pay the respondent's costs, here and below.