Deal v Father Pius Kodakkathanath [2016] HCATrans 135 (8 June 2016)

Last Updated: 8 June 2016

[2016] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M252 of 2015

B e t w e e n -

KATHRYN DEAL

Appellant

and

FATHER PIUS KODAKKATHANATH

Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 JUNE 2016, AT 10.18 AM

Copyright in the High Court of Australia

MR A.G. UREN, QC: If your Honour pleases, I appear with my learned friend, MR A.D.B. INGRAM, for the appellant. (instructed by Melbourne Injury Lawyers)

MR M.F. WHEELAHAN, QC: If the Court pleases, I appear with my learned friend, MR S.E. GLADMAN, for the respondent. (instructed by Minter Ellison Lawyers)

FRENCH CJ: Yes, Mr Uren.

MR UREN: If the Court pleases, we have handed up to the Court the outline of oral argument. If I could, in the beginning, take the Court to our submissions at page 6. Before speaking to those submissions, I wonder if I could mention a matter which seemed to have exercised the court to some degree and also achieved some prominence in our learned friends’ submissions, which is the relevance of the decision of this Court in Naxakis v Western General Hospital.

The court below spent some time in dealing with the application of that case to the present and to whether the trial judge had done the right or wrong thing with reference to the principles expressed in that decision. It will not, I think, trouble this Court for the hearing of the appeal but it is our position that Naxakis is of no relevance here because Naxakis concerned the issue of when a judge was allowed to take a case away from the jury on the basis that there was no evidence to support the plaintiff’s case.

The present case is not of that sort. This case concerns the issue of whether on the true construction of the relevant statute and regulations there was a breach of those for the purposes of the causes of action which were alleged. So the point is purely one of the construction and application of the statute and the regulations. It is not a case of whether there was enough evidence to support a case which would otherwise have been good in law if there had been evidence to support it. So in our submission the relevance of Naxakis in exactly nil and application of the principles in it are not relevant for the purposes of this appeal.

Then if I could take the Court to page 6 of our outline and in paragraph 19 there is set out the provision of the particular regulation which is relevant for the purposes of this appeal. Could we emphasise, when looking at the regulation in subparagraph (1), the words “ensure”, “risk” and “eliminated”, all of which have resonance in the context of the objects and principles of the Act and of the regulations which the majority of the Court of Appeal set out in their reasons for judgment at appeal book page 507 and following.

If we could take the Court to those pages just for immediate reference because it is a convenient spot to find them and emphasise the strength of the words which are used in both the objects and principles and align them with the regulation which has been referred to a moment ago for the purposes of establishing the statutory context in which the regulation appears.

Our learned friends mention as part of their argument the statutory context and seek to justify the reasons of the majority by reference to those objects but we must say that we think it is not immediately apparent, to say the least, as to why the objects of the Act which are set out so clearly in the decision of the majority lead to the conclusion that the regulation itself on which we rely should be read down to mean something less than what its ordinary meaning provides. But, in any event, looking at the objects at the bottom of page 8 of the print:

The objects of this Act are –

(a) to secure the health, safety and welfare of employees and other persons at work; and

(b) to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work –

So the word “secure” and also “eliminate” are used. Then, looking at the following page at section 2(2) of the Act:

It is the intention of the Parliament that in the administration of this Act regard should be had to the principles of health and safety protection set out in section 4.

Section 4 is also set out and the words which are used and which we would emphasise in paragraphs (1), (2) and (3) are:

(1) The importance of health and safety [measures] requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.

(2) Persons who control or manage matters that give rise or may give rise –

We emphasise the word “may”:

to risks to health or safety are responsible for eliminating or reducing -

We emphasise those words again:

those risks so far as is reasonably practicable.

(3) Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.

FRENCH CJ: Now, section 2(2) says that regard should be had to these principles in the administration of this Act. How do they relate to the construction of provisions of the Act or of regulations made under the Act?

MR UREN: Well, they relate to regulations because - - -

FRENCH CJ: Do we treat them as purposes or objectives of the Act?

MR UREN: Yes. They are the objectives of the Act and the purposes of the provisions which are made. If memory serves me right, although I should have it here, I think in the print of the statute it is provided that the regulations are the method by which the provisions of the Act are to be regarded as carried out. I think that might be under the reference in the print to section 21, I am not sure.

But in any event, if it is stated by Parliament that it is their intention that in the administration of the Act regard should be had to the principles of health and safety, that sets out no more than in fact one would normally get from section 2 by itself, or section 2(1), because the principles of statutory interpretation require that the objects of a statue be ascertained by the court and then the provisions themselves be construed with those objects in mind and for the purpose of achieving those objects.

Now, in many cases, it is difficult to actually tell what object Parliament had in mind apart from objects of extreme generality. But in the present case the legislature has provided expressly objects which on ordinary principles of interpretation are also, it would seem, with respect to the specific provision of the Act, that the legislation itself and also subordinate legislation made under its authority be interpreted with these objects as being the touchstone, as it were, of what they are intended to achieve.

If they are intended to achieve these things, then at the very least you would normally think, we would submit, that you certainly would not interpret - the legislation intended to be not only protective, but also proactive in securing protections is in a way which is less than the – sorry, your Honour.

GAGELER J: I may be wrong, but I think the way it works is that those objects inform the duty that is imposed by section 21 of the Act and then the regulations prescribe a way in which that duty is to be performed. Is that the way it works?

MR UREN: Yes, your Honour. With respect, we think that is what is provided for. I am sure it is provided for by a note in the print, but I have unfortunately not - - -

GAGELER J: I think the connection is section 158(1)(a) of the Act, which is the regulation-making power.

MR UREN: Yes. It has just been handed to me and I see it, your Honour.

GAGELER J: Yes, and then that has to be read with regulation 1.1.7, which tells you the effect of the note to which you are referring.

MR UREN: Yes. Your Honour is, with respect, quite correct in that respect.

FRENCH CJ: And I think regulation 1.1.1, which is mentioned in the judgment at page 509.

MR UREN: Yes, and the objects of the regulations being to further the objects of the Act itself, which is something one would normally think would occur. If with that in mind we return to the outline, the submissions that we make in the rest of the outline in a real sense are merely the application of stock standard principles of statutory interpretation and that is to say look at the words, look at their ordinary meaning and construe them in the light of the protective objects which the Act so clearly provides for.

In paragraph 21, the point we make there is that this task has been considered by the court to be a hazardous manual handling task and also by the trial judge. It is perhaps difficult to conceive that the legislature which described the category of tasks within which this falls are as hazardous without it actually involving risk in itself.

So that where one is doing one of those things which is described as a hazardous manual handling task it must be the view of the legislature at the very least that a risk is involved of injury in the performance of tasks of that description. This does not mean that one does not have to look at what is actually being done on the ground, as it were, but nonetheless it is of some assistance, we would think, that the legislature has actually designated that tasks of the sort with which the appellant was engaged in are themselves tasks which have a possibility of risk of injury attendant on their performance.

The risk of injury, in our submission, occurs when there is a possibility of injury occurring in the performance of the task and that is the submission we make at the very bottom of page 6 of our submissions. In this respect, we rely on what was said by the Court of Appeal in Coates’ Case, the relevant passage of which is set out at the bottom of page 6 and at the top of page 7, including relying on what was said by Justice Harper in Holmes v R.E. Spence, that is to say the question in cases such as the present is not whether the detail of what happened was foreseeable but whether accidents of some class or other might conceivably happen and whether there is a practicable method of avoiding injury as a result. Here, such a practical method or means of avoidance was available.

That passage was not only approved of by the Court of Appeal in Coates’ Case at the place we mention, but also it is consistent with what is said in the New South Wales Industrial Court in Cahill’s Case, which is referred to in our authorities, at paragraphs 301 and 302. I wonder if I might take the Court to that momentarily – Cahill 182 IR 124.

That case, as a lot of these cases are, is really about sentencing, but in the course of them other principles are referred to and I think at – I hope I have the right reference, but I think in paragraph 301 – yes, I think it is 301 at page 206, the court said – if we can stop here and say this passage, although we will read it now, in fact is of assistance in answering a submission which our learned friends put with respect to how you describe the task itself and whether there is a general genus which has to be looked at rather than what is actually being done, but in any event the court said:

In my opinion, in classifying the risk the way it did, the defendant worked back from the actual incident with the benefit of hindsight and the effect of doing so was to narrow the risk to a degree of preciseness which was impermissible. In State of New South Wales (NSW Police) v Inspector Covi . . . the Full Bench observed –

after referring to the cases referred to there that –

It is clear from the foregoing cases that careful attention must be paid to the correct identification of the risk the subject of the charges: Police Service (No 2) and O’Sullivan make it clear that it is inappropriate to seek to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight: it is the general class of risk which matters. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation.

As the Full Bench observed in Covi, it is the general class of risk that matters and a misguided focus may not only misdirect an analysis of causation, but also an analysis of reasonable foreseeability in the context of a consideration of the defence under s 28(a) of the 2000 OHS Act.

There was a large amount of evidence indicating an awareness by the defendant that its employees could be placed at risk –

So, it is the “could” which is relevant. I think the other passage is at page 302 – no, those were the relevant passages. What has to occur is that you look at whether accidents of some class or other might happen. Looking at the class rather than at the individual event itself, you also ask in respect of accidents of some class whether they could conceivably happen, and if that is the case, then the regulation requires that something be done for the purposes of ensuring that the risk is eliminated.

In our submission, these are all matters of objective fact. It is not a question of whether the individual employer was reasonable or otherwise in thinking of something or not thinking of something. It must be a matter of objective fact as to whether accidents of some class or other might conceivably happen in the context of carrying out a particular task.

If we could then go to our submissions at paragraph 24, what we do there is refer to the answer which the court gave to the question which it posed, related to the proper meaning and application of the regulation. Bearing in mind the circumstances of this case and also the objects of the statute, and their resonance with respect to the application of the regulations, it is, with respect, impossible, in our submission, to legitimately come to the conclusion which the Court of Appeal did in the middle of 24, when it said:

it is in our opinion consistent with that purpose –

which has just been referred to:

that the Regulations should be construed to require a close connection between the activity and the anticipated risk of harm.

Stopping at that particular reason which the court gave for its ultimate conclusion, it is, we would respectfully submit, quite unclear as to why the regulation should be construed to require a close connection between the activity and the anticipated risk of harm when the objects of the Act are so expressly stated to be so protective of the worker.

FRENCH CJ: Now, what is the logical analysis of the concept of a close connection between the activity and anticipated risk of harm? That is taking us back to regulation 3.1.2:

the risk of a musculoskeletal disorder associated with a hazardous manual - - -

MR UREN: Well, the only connection for relevant - - -

FRENCH CJ: Just a minute:

hazardous manual handling task –

When one says “a risk associated with the task”, one thinks in terms of an event which can be linked causally to the task. There may be a number of causal pathways to an accident occurring which results in a musculoskeletal disorder. What is one talking about when one is talking about the closeness of connection? Is one saying that one excludes, perhaps, cases where there are multiple causes such as carelessness on the part of the worker, and so forth? I am just wondering what the court is actually saying there, or how you construe it.

MR UREN: We have difficulty in construing it because of the view which we take about what the regulations and the statute is meant to do. The connection which the - - -

FRENCH CJ: What is one measuring when one is measuring the closeness of a connection?

MR UREN: Well, they do not explain that. There is no path of reasoning which comes from the purpose of the Act and regulations to require a close connection. It is a - - -

FRENCH CJ: Perhaps it means nothing more than, there has to be some threshold level of risk. In other words, a low risk is not something which has a close connection with.

MR UREN: I think the reason for the conclusion in fact lies in the next portion of the reasons but I stopped at the moment at the first part because it was said to be consistent with the protective purpose which is supposed to give the highest level of protection, as the Act said, to require a close connection between the activity and the anticipated risk of harm.

FRENCH CJ: You do not go so far as to say that any accident, any musculoskeletal disorder which occurs as a result of a hazardous manual handling task, falls within the scope of the risk controlled by regulation 3.1.2?

MR UREN: Well, the answer is yes, but then I will give the reason for what might otherwise seem to be too wide. Musculoskeletal disorder is defined not just as an injury but as an injury which arises out of manual handling.

FRENCH CJ: Yes.

MR UREN: So, although it does sound a bit odd in the ordinary use of English language, but the disorder is an injury which occurs in a particular way. So you have to exclude those classes of disorder which do not arise out of manual handling for present purposes.

FRENCH CJ: So any musculoskeletal disorder that arises out of a hazardous manual handling task, do you say that that establishes the existence of the risk which gives rise to liability?

MR UREN: Not putting it that way but the risk of that must be eliminated because that is what the statue says. If there is a hazardous manual activity, the risk of a musculoskeletal disorder, that is to say, an injury arising out of a manual handling activity, must be eliminated. Those are the plain words of the Act.

NETTLE J: If it is associated with the hazardous manual handling task?

MR UREN: If it arises from - - -

NETTLE J: - - - and it is associated with.

MR UREN: Yes, yes, associated with, which gets us to the point of this case is the connecting link or the connection between risk and activity is associated with.

NETTLE J: Yes.

MR UREN: The risk must be associated with the activity but associated with is a wider concept than cause. Now, cause would suit us in one sense because it would clearly seem from the circumstances of this case that there is a causal connection as indeed the majority of the Court of Appeal itself recognised. There is a very direct causal connection between everything in this case leading up to the injury but the statute itself does not use the word “cause” or “regulation”. What is required is the elimination of risk of injury associated with.

GAGELER J: I think this is in your favour and I do not think it is an issue in this case but what it actually says is that the risk has to be eliminated so far as is reasonably practicable, which takes you back to the explanation of that concept in section 20(2).

MR UREN: Yes, it does. The present case stops before the reasonable practicability issue. It does not concern that because that is something - the judge and the Court of Appeal found that the regulation on its true construction did not apply. So there was no issue about the application of the reasonably practicable issue.

GAGELER J: How I think it helps you is that trivial or remote risks would be dealt with under that concept, on one view.

MR UREN: Possibly and possibly also that –it is thought, I think, in some of the cases that you cannot deal with something that is impossible to be seen and therefore the idea is introduced not so much of remoteness but of what was said by Justice Harper whether you can conceive of the risk. If you can conceive of it, which would seem to us to be a factual matter, then that risk must be eliminated. So it may be that in that area, as well as in section 20, there are these safeguard ideas, as it were.

GAGELER J: Can I just follow up the factual question? We are focusing here on regulation 3.1.2, which is about control of risk. The preceding sub-regulation is 3.1.1, which involves the identification of risk. As a matter of fact, did that occur here?

MR UREN: No – or yes, depending on the view you take of the evidence. But we think the answer is no, because there was evidence in one of the respondent’s documents of risk assessment of manual handling tasks and I think it was assessment 17, if my memory serves me right, which identified a risk in respect of putting up the displays. But I think it did not identify one in respect of taking them down.

Justice Digby referred to that attachment in his reasons, but I think it is right to say that there probably was no risk assessment with respect to removing the objects, although there was a risk assessment in respect of putting them up and reasons for the omission were not explained.

But the point we have just been talking about is what is the path of reasoning which says that it is consistent with the protective purpose which requires the highest protections to be given and that the connection between the activity and the anticipated risk be reduced so that it is “close”, which is a concept which is not explained and I must say nor was it explained why, in the present case, the connection was not close in any event because how closer could you get than what happened in the present case involving a time lapse of a few minutes at the most and a clear path between the activity and the injury?

But in any event, the real reason for the requiring of a close connection appears to be, we think, what was said at the bottom of that paragraph 24, that were it otherwise, taking the present case as an example, an employer would potentially face the prospect of both civil and criminal liability for failing to identify and act upon a risk which only assumed that character.

It is not entirely clear what “that character” means in that context because the employee sustained injury in a manner tenuously connected with a workplace activity. As a matter of fact, there are grave difficulties, we would submit, with that passage because why the injury is sustained in a manner tenuously connected with workplace activity is not, with the greatest respect, clear at all. In fact, it must obviously be wrong.

In any event, the reason which the court gave as the major reason, we would think, for reducing the strictness of what is required by the regulation is that employers would otherwise face the prospect of civil and criminal liability. The submissions that we go on to make at paragraph 25 deal with this concept as well as with the ones which have just been mentioned with respect to the ordinary meaning of the words and the context of the legislative text.

NETTLE J: Mr Uren, just before you pass from that point, it appears that the majority identify or characterise the task as being simply to remove the displays from the board, whereas you would characterise it as removing it from the board while standing on a stepladder.

MR UREN: Yes, but with the other additions, that is to say to start off with they left her to work out her own method of dealing with it and traditionally that has been a no-no with respect to workers’ protection. You do not leave it to the employee to devise his own safe method of work. So it would be entirely inconsistent with the general structure, as it were, or tenor of the law in this area to say that you can just identify the task in a general way or, sorry, you can describe the task in a general way and then for the purposes of the regulation completely ignore the way the employee chose to carry out the task, you not having told the employee to do it in the other way at all.

The passage we read to the Court a moment ago from Cahill explains the error in that way of thinking – that is to say, you do not define the task with such a degree of generality as to reduce the obviousness of the risks – when I say “obviousness” that is not the correct word – but to reduce the possibility of the risks which might be attendant on it.

You do not say it is so generally described as to be completely amorphous with respect to risk possibility. You have to look at what is being done by the employee. If you leave it to the employee to devise a particular method, then unless she was standing on her head while she did it or some silly thing of that sort, you would have to look at conceivably possible ways in which the employee might carry out the task. It could not in respect of this particular case be said that the way in which she chose to carry out her task was one which was inconceivable or not one which might be thought of by an employer who actually sat down and decided to think about how removal would take place.

KIEFEL J: Mr Uren, is it any part of your argument that the Court of Appeal in the paragraphs 143 to 146 elide the question of common law causation and the question of what duty and standard arises under the statute and whether it is breached, that is to say, the first questions concern the identification of the duty which arises pursuant to the standards set by the statute and whether there is breach; then one turns to the question of whether or not there was cause in fact by that breach by reference to what the person did. Do you say that there is any elision? Do you rely upon that at all or - - -

MR UREN: Well, your Honour, we had not looked at those paragraphs for that purpose, but if that was what was done it would be wrong, there is no doubt because - - -

KIEFEL J: Well, it is just that it seems that the Court of Appeal is drawing upon the particular factual circumstances in aid of somehow determining what the duty is under the statute. That seems to be on one view a confusion of two tasks.

MR UREN: Yes. In their addition of the view that what was being done only assumed the character of being risky because she chose to do it in the way she did, but that is to - - -

KIEFEL J: I think it is perhaps most evident in paragraph 146, the reference to the “causative relationship with the . . . fall”.

MR UREN: Yes.

KIEFEL J: And then a reference to “the relationship between risk and activity”.

MR UREN: Yes, but if there is a causative relationship then unless the circumstances which were at the other end of the – sorry, at the relevant end of the causal chain were such that they could not be reasonably conceived as being a likely result - see, you can have, let us say, event A causing injury because of B. If you look at the injury which has occurred you might say, well, there is a causal relationship between A, B and the injury, but that does not in all cases in any event assist in the application of the regulations because you start off at the beginning rather than start off at the end.

You start off at the beginning by looking at what might conceivably happen and, although for the purposes of a cause of action you need to establish cause and effect because unless the breach caused the accident and the injury you have no cause of action. The purpose of the regulations which are all the cases say are not intended so much as to prevent injury but to prevent risk of injury and to eliminate the risk and no doubt in eliminating the risk you have a knock-on effect with respect to injury itself, but the object is to eliminate risk and the elimination of risk has to take place, naturally enough, before the particular event occurs.

So the employer sits down – or should sit down – and think of ways in which the overall task might conceivably be carried out. This relates to another submission that we make later on with respect to site-specific obligations. It is not sufficient just to give a generalised instruction to an employee – say, “do not do anything silly” or something of that sort.

The instruction which you have to give has to be related to the particular task being carried out. It has to be site specific, are the words used in some other cases, rather than generic or general. The employer sits down and, although the two regulations are stand-alone ones, first, he should identify the risks attendant on doing the job, which means that he has to work out the ways in which the employees might conceivably carry out the work, and also there is an obligation to eliminate risks – not the risks that have been thought of, but the risks which are associated with - - -

FRENCH CJ: In terms of the exercise being undertaken in paragraphs 143 to 146, there is the constructional exercise, which indicates that the relational term “associated” has a limit indicated by the use of the term “close connection”, I think, in 143. Then, there is the question whether the evidence was capable of falling within the causative relationship which could be inferred from the evidence – that is 146 – because they are dealing with the question whether the evidence was sufficient as it were to go to the jury. The question at 146 is whether the causative relationship which could be inferred from the evidence of what had occurred was capable of fitting within the “close connection”, which was their constructional approach to “associated with”, I think.

MR UREN: Yes, and “causal connection” is for the purpose of the cause of action. The “close connection” is for the purposes of the application of the regulation - - -

FRENCH CJ: That is right.

MR UREN: But then the real reason, it seems, for saying that a close connection is required is because the employer would otherwise face the prospect of liability in particular circumstances, that is to say because the employee would look, it would seem, because the employee decided to do the work the way the employee did; in the context, we would add – although the court did not, although perhaps it should have, with respect – of not having told the employee to do the work in any particular way.

The next point we make in our submissions is that it is completely inconsistent with the objects of the Act that the prospect of civil and criminal liability is you - of an employer for breaching the protective provisions of the Act is used to reduce the extent of the protective provisions. One asks rhetorically, how can that be? They are meant to protect workers and other people. They are meant to penalise employers, yet the prospect of penalty is being used by the court in reduction of the protection. But surely it is the other way round.

You are penalised because people need protection. How can it be that the penalty reduces the protection? That is the submission which we make further on in our submissions, looking in this context, I think, at the bottom of page 9 of our submissions and the top of page 10.

Could we say in this context there are a large number of cases in New South Wales and elsewhere where, in sentencing people for breach of the regulations, deterrence is said to be an important factor because deterrence is meant to improve performance. Looking, for instance, at the passage from Coates, which we refer to at about line 20 on page 10, the Court of Appeal there said:

For offending of this kind, general deterrence is also a consideration of great importance. In Orbit Drilling, this Court endorsed the view of the Industrial Commission of New South Wales in Court Session, that the fundamental duty of the Court in this important area of public concern . . . [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues –

What the Court of Appeal did was to, in effect, turn it on its head and to use the prospect of a penalty as a reason for not compelling attention to occupational health and safety issues but to reduce, one would think, the need for that attention because the regulation has been read down to have a lesser effect than it would have in its ordinary meaning or indeed in an enhanced meaning in the context of the objects of the statute.

In the context of what is said in Coates and also in Capral, which we refer to, there is also, I think, a passage in DPP v Irvine, at paragraph 52, which I will not read for present purposes. In our submission, it is quite inconsistent with the objectives of the Act and the protections required and with the concept that it is necessary to penalise people for breaches to compel attention to the important factors of occupational health and safety that you in fact reduce the protection in the interests of those persons who have not given attention to those matters, applying the ordinary meaning of the regulation which imposes an obligation on them.

But those are the only reasons that we can see in the reasons of the majority for the reading down which the judgment shows. It is for the purposes of protecting the employers from a liability which the court thought was not reasonable. But this is to do what we have submitted the court should not do on page 9 of our submissions in paragraph c), that is to say the majority has considered for itself what it thought the appropriate scope of the legislation was and interpreted it in the context of that consideration, but in our submission, that is something which should not have been done.

It would seem to us fairly clear that on the ordinary meaning of the words “associated with”, the ordinary meaning is at the very least is the concept which should have been applied. On that basis there should have been found to be a clear breach here on the part of the employer if the jury had accepted the circumstances of the accident as the appellant described, uncontradicted, I must say. So presumably there would be no reason why her evidence as to how things happened would not be accepted.

At page 11, we refer to the well-known passage from Waugh v Kippen, which was referred to and applied in R v ARC Roofing Pty Ltd, which is referred to at the bottom of page 10, that is to say the legislation is not construed so as to deprive the worker of the protection which the Parliament intended that the worker should have and in the present case Parliament has carefully set out that protection in terms which permitted no reading down construction in the interests of anybody else. That is the submission that we make there.

Going on to page 12 of our submissions, there is an argument there which deals with passages of the reasoning of the majority which, in our submission, show that the majority considered that the regulations required that the injury or the risk of injury be from the application of force itself and not merely be a risk of injury, as the regulations themselves provide, associated with the manual task.

We make submissions as to why that interpretation is incorrect because in part it requires a reconstruction of the regulation and also an addition of words to the regulation and to a view about its meaning and application which it has not got from its own words.

Now, the respondent in the present case takes the view, as they have expressed, that this was not a reason for the court’s conclusion but only a passing observation, although it is not clear why the court would do that, but nonetheless, the respondent does not support the view of the meaning of the regulation if that is what it is. So that particular use of force argument the respondent says does not arise and if it does arise they do not support what we said the Court of Appeal in fact meant.

NETTLE J: Yet, seemingly, that is the only way in which the Court of Appeal gets to the last sentence at paragraph 145. In other words, they have restricted the task to taking the thing off the board because that involves the use of force as opposed to taking it off using a ladder where the ladder is productive of the risk.

MR UREN: Yes, that is certainly one way of looking at that. The other way is the way the respondent looks at it, that the Court of Appeal has invented a new principle, that is to say, the principle of generic task. The respondent’s point is, it seems, the only point of substance in their submissions, although we do not think it is very substantial, if we might say so. But in any event, their point is that the court has without reference to any other authority invented a concept of generic task.

You look at the generic task expressed in a few words and say the risk only arose because the appellant chose to perform that task in a particular way and therefore the regulation is not engaged. Now, this falls foul, in our submission, of the site-specific principle that we referred to, and it also falls foul of the passage from Cahill’s Case that we read with respect to not, in a sense, denaturing the protections by giving a too general description of the task.

In our submission, the only way in which the regulations can sensibly give the protections which are required is for the task which the employee is actually performing – that is to say the method of performance to be looked at for the purposes of ascertaining whether the regulations have been breached or not. So, to go back to the - - -

KIEFEL J: Are you saying then that what the Court of Appeal has done is to apply the task in a manner in which it was performed to determine whether or not there should be liability and then construe the regulation according to that perception?

MR UREN: No, not so much that. What they have said in 145 is if an employer considers a generic task of removing light displays that is all the employer thinks. Then they have said, why should the employer be liable because the worker has decided to do it a particular way? But this is not to apply the regulations because if the regulations require the elimination of risks from conceivable ways in which a task might be performed, then somebody has at the beginning to think of how the task will be done because - - -

KIEFEL J: I was really thinking of paragraph 145 as an expansion upon what was said at paragraph 143. The court takes the example of why should there be liability for this as a reason for saying why there should be a close connection, which I think is consistent with what you said earlier, that the court seems to have come to its own view of where – how narrow the limit of liability should be.

MR UREN: Yes, of what the legislature should have – sorry, because of what it thought was the unreasonableness of the result, that is to say, the employer being made liable for the way the employee decided to do the generic task, that therefore some lesser construction should be given I think to the regulation. But if you approach it in the way that we think is the proper structural way, then following what was said by Justice Harper and approved of in Coates, the hypothetical employer should, when he writes down removing light displays from pin boards - the word “light” seems to get some prominence in the reasons in various places.

But the lighter the display, the more awkward it is, in one sense. If it was made of masonite, you could carry it down in one hand. If it is a wobbly piece of card which you want to keep the hungry caterpillar integral in respect of for later use by children, you do not knock it down with a stick. You actually carry it down and of course it bends in the middle, and so do all the other things on top of it.

So, it may be the court was horrified in one sense by the prospect that this little sort of thing could give rise to these liabilities, but people can be tripped up by molehills much more easily than by mountains and at least the employer, in our submission, really has to sit down and think how is it possible that this task will be carried out by an employee who we do not tell how to do it.

GAGELER J: As I understand the facts we are asked to assume, the light displays in question in this generic task in any event are displays that are above head height.

MR UREN: Above her head height. She was relatively small, by which I mean smaller than me. I think she is 143 centimetres or something, so she is relatively short. She had to step on the step. She was actually on the very top of the step when she was holding the object and then had to descend from the top, and it was that – that holding and supporting constituted the manual handling task, but it also included the supporting while descending, and that seemed to be what gave rise to the problem because there was both unsighting as a result of the holding of the objects, and also the lack of personal stability as a result of having no free hand. So, all these things connected the manual handling with the injury via the concept of risk.

GAGELER J: Insofar as putting up the light displays is concerned, part of the risk that was actually identified in that case was the risk associated with the ladders to do so, as I understand it.

MR UREN: Yes, yes, the risk of putting them up. So you would think normally that there would be greater risk in taking them down, but in any event certainly a risk. Now, in paragraph 28 of our submissions we do what we think is a sort of a wrap up of the evidence and in that context we rely also on the reasons for judgment of Justice Digby, starting at appeal book 591, without reading them particularly. Could we also mention that Justice Digby referred to the passage from Holmes’ Case which was approved of in Coates at page 579 of the appeal book?

The last thing to mention, I think, is the concept which our learned friends mentioned in their submission, that is to say, the concept of generic task and the fact that the Court of Appeal, it was said correctly, identified that as the relevant matter and they do that, I think, in their submissions at paragraphs 23 to 25. At 25 they are bold enough to say:

The actual task undertaken by the appellant, however, was materially different from the generic task -

although it is difficult to say how that can be justified, bearing in mind the task undertaken by the appellant was only a means of carrying out what is described as a generic task, the employer not having provided any other means of doing so but in any event, in our submission, there is no split between generic and actual tasks which the regulations require or approve of.

The more generic the task which the employer decides to identify may mean the employer has to do more thinking in working out how these tasks might be carried out but if the employer does not produce the protections for the worker by the generic description which it chooses to give to the task. The task is what it was. The statute does not say anything about generic tasks. The employer identifies the task in a generic way for

the purposes of his own risk assessment but that does not have any statutory authority.

What has statutory authority is the removal of risk associated with a way in which the employee might conceivably do his or her work and then by asking that particular question, provides the answer. In our submission, the Court of Appeal did not ask that question and the answer which it gave was not to a question posed by the regulations. If the Court pleases.

FRENCH CJ: Yes, thank you, Mr Uren. Yes, Mr Wheelahan.

MR WHEELAHAN: Your Honours, we provided to the Court an outline of propositions which we wish to address. Could we commence our submissions by developing them by reference to the text of the legislation, and we would like to take the Court first to the Act, and to section 2. Section 2 is headed “Objects”, and the objects are set out under subsection (1). We wish to emphasise the concluding words of subsection (1):

having regard to the principles of health and safety protection set out in section 4.

The phrase “principles of health and safety protection set out in section 4” also qualifies subsection (2), to which the Court has already been taken. We then go to section 4, and we wish to emphasise the concluding words of each of subsections (1) and (2), that is, the phrase “reasonably practicable in the circumstances” in the case of subsection (1), and “so far as is reasonably practicable” in the case of subsection (2). What is reasonably practicable, in our submission, is embedded in the Act, and it is embedded in the regulations.

GAGELER J: As a discrete concept.

MR WHEELAHAN: Yes. It qualifies materially all the obligations that are in issue in the present case.

GAGELER J: But the qualification was not reached in the reasoning of the Court of Appeal. It was not applied, as I understand it.

MR WHEELAHAN: Our submission is otherwise. I am going to come now to the content of what is reasonably practicable. What is reasonably practicable – I will develop this, but it includes what is foreseeable. In our submission, that lies at the heart of what the court said, for instance, in paragraph 143.

GAGELER J: Without mentioning the concept, though, I think.

MR WHEELAHAN: If I could just take the Court now to paragraph 143 – the last sentence of 143, which is the rationale for the close connection:

Were it otherwise . . . an employer would potentially face the prospect of both civil and criminal liability for failing to identify and act upon a risk which only assumed that character because an employee sustained injury in a manner tenuously connected with a workplace activity.

FRENCH CJ: What does “close connection” mean? Is it saying something about the level of risk associated with the activity, or something else?

MR WHEELAHAN: In our submission, the connection is close to the two reasons we identify in paragraph 32 of our written outline, that is, firstly – and this is what I am seeking to develop now – it must be reasonably practicable to identify ex ante the connection between the risk and the hazardous manual handling task. The second submission which I will develop is that the risk must be associated with one or more of the hazards which are engaged – that is, one or more of the hazards referred to in paragraphs (a) to (c) of the definition of “hazardous manual handling”. If it is convenient I would like to come back to that point.

BELL J: So that the obligation imposed on the employer under 3.1.2 of the regulation is to be understood in the context of section 21(1).

MR WHEELAHAN: Yes.

BELL J: So that the obligation to ensure – I am sorry, it is explicit in fact in 3.1.2.

MR WHEELAHAN: Yes, so - - -

BELL J: It is an obligation to ensure that you eliminate risks that reasonably practicably you can eliminate, hence your ex ante argument.

MR WHEELAHAN: Yes, and our learned friends emphasise words such as “ensure” but those obligations are not unconstrained. They are expressly constrained by what is reasonably practicable and it is that concept that I now want to develop.

GAGELER J: I will stop interrupting you in a moment but the bottom line of your argument, as I understand it, is that when you read regulation 3.1.2 you read in the concept of “so far as reasonably practicable” twice: once by reference to the express qualification at the end of the sentence, and another time as informing the content of the identification of a risk that is associated with a hazardous manual handling task.

MR WHEELAHAN: Yes, and to give further support with respect to your Honour’s latter proposition, that qualification appears also in 3.1.1.

GAGELER J: Yes, through the word “involving”, is it?

MR WHEELAHAN: Yes. So, just going back to the Act then, I want to take the Court to section 20(1) and (2). The Court has already been taken to subsection (1), but we draw the Court’s attention to the fact that there is express reference to “the regulations” in subsection (1), thus emphasising the application of this concept to the regulations. In relation to subsection (2), there are mandatory considerations there set out.

Now, our submission is that the considerations set out in paragraphs (a) to (e) of subsection (2) have substantial correspondence with the Shirt calculus, as it appears in the reasons of Justice Mason in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at pages 47 to 48. One can see that by looking at the individual elements, that is the likelihood of hazard, the degree of harm. We draw the Court’s attention specifically to paragraph (c), “what the person concerned knows, or ought reasonably to know”.

In our submission, that brings in the idea of reasonable foreseeability –availability of suitable ways in (d) and (e) is also significant. Cost is relevant and that of course will be a practical constraint in many circumstances. Not only, in our submission, does paragraph (c) directly draw attention to foreseeability as an element of reasonably practicable, this Court in Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 – and we have provided this case to the Court – at page 265 their Honours considered the definition of “practicable”, which appeared in the 1985 Victorian Act – that is, a precursor of the Act we are concerned with here.

The term used in the Victorian Act 1985 is “practicable” not “reasonably practicable”, but it was defined in section 4 of the 1985 Act in terms that appear on page 259 in the report of the Court. We wanted to draw the Court’s attention to a passage at page 265, which commences:

It is clear from the definition of “practicable” in s. 4 of the Act that the issue of practicability requires some consideration of the question of foreseeability.

The Court then goes on - we put the submission at two levels. The text of the Act brings it in but, if there were any doubt about it, it would be implicit, in any event, having regard to what the Court said in Chugg.

We take the Court then to section 21 of the Act. Our submission is that section 21 creates the primary obligation. The regulations give content to the obligation as regulation 1.1.7 and the notes to the regulations would indicate. We make the following submissions in relation to section 21. Firstly, the section is concerned with the creation and maintenance of systems and the elimination of risk, subject to the qualifications that I have identified.

The second submission we make is that it is not necessary that an injury had occurred or that harm had befallen an employee for an offence against section 21 to have been committed. We draw to the Court’s attention what was said in Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at 553, at paragraph 13, where the Court made an observation of that nature in relation to the New South Wales legislation, which differs in some material respects from this Victorian Act, but we submit that the observation remains true to the Victorian Act – that is, just to read what the Court said in paragraph 13:

It is not necessary that harm has already befallen an employee for an offence to have been committed.

In our submission, thus understood, it is the failure to provide or maintain systems that constitutes a breach of section 21 rather than the occurrence of an accident. The occurrence of the accident might, of course, be the consequence of the breach but it does not itself constitute the breach. The next feature we note about section 21 is it creates an indictable offence and that appears in subsection (4). The penalties are significant. The penalties are prescribed by subsection (1).

KIEFEL J: What is the relevance of this, given that you have abandoned the notice of contention?

MR WHEELAHAN: The relevance of it is that in seeking to construe some of the core concepts in the Act it is necessary to have regard – we are concerned with a penal provision and that is not irrelevant.

KIEFEL J: How is it relevant to construction in this context?

MR WHEELAHAN: We make the submission having regard to the content of what is reasonably practicable. There is an expectation that the legislation can be reasonably complied with by employers. The consequences of not complying with the legislation are substantial and that is why more is required than mere conjecture, in our submission, in identifying risks of musculoskeletal injury associated with hazardous manual handling, having regard to the consequences of breach. Could we take the Court now to the regulations?

GAGELER J: Can I ask you a question about the construction of section 21(1) first. I do not think you have touched on this or perhaps you have. A natural reading of section 21(1) is that it requires an employer to eliminate all risks – when it says without risks, eliminate all risks “so far as is reasonably practicable”. Is that a fair construction?

MR WHEELAHAN: Of 21(1)?

GAGELER J: Yes, 21(1).

MR WHEELAHAN: The text is:

provide and maintain for employees of the employer a working environment that is safe and without risks to health.

I am reading the version dated 1 July - - -

GAGELER J: Yes, of course. I am perhaps glossing it. I am perhaps interpreting it and I just wanted your submission in relation to that. Why I see it as relevant is that if this regulation is a means of performing that duty it is necessary for me to understand precisely what that duty is.

MR WHEELAHAN: Yes. Having regard to the fact that the phrase “reasonably practicable” is embedded into the obligation, it is not only a qualification; it is an obligation to do what is reasonable, having regard to the mandatory considerations in 20(2), to provide a safe working environment. Our submission is that is not fundamentally different from a common law obligation to take reasonable care to avoid the risk of injury, albeit this section is not directed to injury but assistance, as we have submitted.

BELL J: On the prosecution of a person for an offence contrary to regulation 3.1.2, does the prosecution have to lead evidence to establish that the system the subject of complaint was one involving a risk that reasonably practicably could have been avoided, or does it simply lead evidence of the deficiency in the system?

MR WHEELAHAN: In our submission, with respect, the former proposition is the correct one, and that is in consequence of the Court’s decision in Chugg which held that the onus in relation to what is reasonably practicable lies on the prosecution.

BELL J: Lies on the – yes, right.

MR WHEELAHAN: Could we take the Court now to the regulations commencing with the definitions, and I will take them out of order because of the logical sequence. I will start with “manual handling”. The Court will observe that the definition conceivably is quite broad. We note that the majority found at paragraph 126 of the reasons that in this case:

there was evidence upon which the jury could reasonably conclude that the appellant was engaged in manual handling when she sustained injury.

The question of manual handling is not in issue for the purposes of this appeal. Could we take the Court then to the definition of “hazardous manual handling”? In paragraph (a) it provides:

manual handling having any one of the following characteristics –

In our submission, the definition of “hazardous manual handling” focuses on the characteristics of the task rather than any risk of injury, and we are supported in that submission by what the majority said at paragraph 128, appeal book 533. In this particular case, it is the characteristic in paragraph (c) that is in issue, and the definition of “hazardous manual handling” requires consideration as to whether that is a characteristic of the task. Now, in this particular case, as the majority find at paragraph 118:

there was evidence fit to go to the jury that the activity in which the appellant was engaging at the time of injury fell within the language of paragraph (c) -

Can we go then to the definition of musculoskeletal disorder and we draw the Court’s attention to the fact that in the third line of the definition of musculoskeletal disorder, it picks up the term “manual handling”, so it is:

an injury, illness or disease that arises in whole or in part from manual handling -

Now, I will come back to develop the significance of that point. On the facing page there is regulation 1.1.7 to which we have already referred the Court. We come now to regulation 3.1.1. The first submission we make about 3.1.1 is that the heading is “Hazard identification”.

Now, under section 36(2A) of the Interpretation of Legislation Act 1984 (Vic), headings to sections of Acts passed on or after 1 January 2001 form part of the Act. Our submission is that 3.1.1 directs attention to the hazard. Again, the idea of what is reasonably practicable is embedded in the obligation so it must be reasonably practicable, including, we submit, reasonably foreseeable for the employer to identify a task as involving a particular hazard referred to in the definition of hazardous manual handling or a particular characteristic, to use the text of the definition. Regulation 3.1.1 refers to “any task undertaken”. In our submission, that suggests a task involving routine or repetition but with foresight that the task will continue to be undertaken in a particular way.

KIEFEL J: How do you identify the task in question here?

MR WHEELAHAN: How does one - - -

KIEFEL J: How do you identify it?

MR WHEELAHAN: In our submission, it is through the concept of reasonable foreseeability that one - - -

KIEFEL J: But how would you describe it?

MR WHEELAHAN: The same way the majority described the task at 145, that is:

removing lights displays from pin boards using steps –

that the majority incorporated into their description of the task, the use of steps. That appears in paragraph 145. The point on which the case turned in the majority’s view in essence is they did not regard the handling of the papier-mâché card with multiple layers, three or four, as being something which the employer ought to have identified as an element of the task.

That is why we are emphasising in our submissions the concept of something being reasonably practicable carrying with it the idea that it must be reasonably foreseeable. Regulation 3.1.1 also refers to the task to be undertaken and again that, in our submission, must involve reasonable foresight.

Now, our submission is that for a task to be identified as “involving hazardous manual handling”, and they are the final words of the sub-regulation, the task must have as a necessary feature one or more of the characteristics referred to in the definition of hazardous manual handling in paragraphs (a) to (c). In support of that submission, we refer to the definition of “involve” in the Oxford English Dictionary and in particular definition 6c which we have set out in the speaking note:

To contain implicitly; to include as a necessary (and therefore unexpressed) feature –

So that the steps here are firstly to identify the task, secondly to form a view, which is an intellectual exercise as to whether that task involves hazardous manual handling. In our submission, a risk or a mere possibility that a manual handling task might have one or more of the characteristics referred to in paragraphs (a), (b) and (c) of the definition of hazardous manual handling is not sufficient.

NETTLE J: Did you say a risk or mere possibility of such occurring is not sufficient?

MR WHEELAHAN: Yes, because - - -

BELL J: If it is foreseen, why is it not sufficient?

MR WHEELAHAN: What must be foreseen is that the task will have as a necessary characteristic.

NETTLE J: It is bound to occur.

MR WHEELAHAN: Yes – no, not that the accident is bound to occur - - -

NETTLE J: But the risk is bound to eventuate.

MR WHEELAHAN: No, not that the risk is bound to eventuate but that the task - - -

BELL J: The system will fall within one of the subparagraphs.

MR WHEELAHAN: Paragraphs (a), (b) or (c). So to take the example in this case, paragraph (c) refers to instability, “unstable or unbalanced loads”. So what must be foreseen is that the task will have, as a necessary characteristic, unstable or unbalanced loads. Not that some accident will occur or that some risk is present because, as I submitted earlier, the definition of “hazardous manual handling” does not refer to risk.

FRENCH CJ: You could be carrying a bag, that is a sustained application of force.

MR WHEELAHAN: Yes, in the Newtonian sense.

FRENCH CJ: Well, what other sense?

MR WHEELAHAN: Yes, that the – that engages the definition of manual handling but not hazardous manual handling.

FRENCH CJ: Well, sustained application of force and it brings in manual handling because it requires the use of that force to lift any object, hold any object. So I pick up a bag - - -

MR WHEELAHAN: Yes.

FRENCH CJ: - - - I am holding the object, I walk 100 metres with it, it is the sustained application of the force.

MR WHEELAHAN: That example, in our submission, invites consideration as to whether the word “force” has some different meaning to its ordinary meaning when used in the context of these provisions.

FRENCH CJ: Well, what is the ordinary meaning that you - - -

MR WHEELAHAN: Yes, I accept that proposition, yes. But the submission we are making though is going back – I was starting with 3.1.1 – that because, in our submission “reasonably practicable” picks up therefore “reasonably foreseeable” if one is engaging in a task of identification. What is required is that the task identified involved hazardous manual handling; that is, that the hazard be a characteristic of that task.

NETTLE J: So the employer in this case would have to have foreseen that the task of taking the displays off the board necessarily involved a risk of having to carry unstable or unbalanced loads, or loads that were difficult to grasp?

MR WHEELAHAN: Yes. With respect, that accurately captures our submission.

NETTLE J: But did not he do so, at least for the purpose of putting them up?

MR WHEELAHAN: Yes, I have to accept that, and I will take the Court to the documents in that regard when I come to the evidence.

NETTLE J: Right.

GAGELER J: So where is this all going; to say there was no breach, or could have been no breach, of 3.1.1?

MR WHEELAHAN: Yes, because the actual manner in which the appellant chose to undertake this task – that is, by placing multiple pieces of card on top of each other – that was the feature which made the task that was actually performed unstable, thereby engaging paragraph (c), as the majority found. Our submission is, having regard to the way in which the regulations ought to be construed, and in particular the idea of what is reasonably practicable, the majority in the Court of Appeal was correct to take the view in paragraph 145 that it would only be conjecture that would give rise to the identification of this particular hazard.

NETTLE J: Mr Wheelahan, is it plain from the evidence that if the lady had only carried one of these things down at a time, she would not have been exposed to the risk which she fell foul?

MR WHEELAHAN: I will make that submission by reference to oral evidence which the appellant gave.

NETTLE J: So it is. She would have been sweet had she to carry only one display at a time, you say?

MR WHEELAHAN: Yes.

NETTLE J: No problem at all?

MR WHEELAHAN: Yes. We submit that is plain, and we submit it is plain because the appellant identified the fact that she was carrying multiple layers as giving rise to the instability.

NETTLE J: I see. It is just that I had understood they were made of pretty flimsy cardboard and that is what made them unstable. You have to put your hand under the middle to stop the thing breaking down.

MR WHEELAHAN: Yes, but it was the stacking on top of each other which the appellant herself identified in the evidence as giving rise to the instability. If the Court looks at paragraph 4 of the propositions which we have prepared, we have referred in a high level way to that evidence. But I want to take the Court to some transcript passages when I get to that proposition.

NETTLE J: It just sounds like it is getting perilously close to a job for the jury.

MR WHEELAHAN: Well, that is the proposition we have to meet and I will be making submissions.

GAGELER J: Just so I understand your submissions about paragraph 145, I must say I had not read any part of the Court of Appeal majority judgment as addressing the content of reasonably practicable; rather as concerned with another aspect of the language of regulation 3.1.2. Are you saying that we should read what is being said there as addressed to whether it was open to conclude - or open to make a conclusion about what was reasonably practicable in the circumstances?

MR WHEELAHAN: Yes, we do, because the majority themselves use the phrase “reasonably practicable” in the first line of paragraph 145.

GAGELER J: I see.

MR WHEELAHAN: The analysis that is undertaken here is to compare on the one hand conjecture - one might add hindsight - with what a reasonable employer might reasonably foresee.

GAGELER J: So it is really not a question of whether this disorder was associated with; it is really a question of the reasonable practicality in the circumstances, is that right? That was the question that was taken away from the jury.

MR WHEELAHAN: It was taken away from the jury for a slightly different reason to the one the Court of Appeal considers. As the Court of Appeal correctly observes, it was taken away from the jury because the trial judge thought the task actually undertaken by the appellant as a matter of law could not be regarded by the jury as engaging these regulations or as properly giving rise to a case alleging breach of the regulations. The Court of Appeal starts from the premise that that was not the correct analysis because it looked at the task actually undertaken rather than looking at the matter ex ante.

BELL J: So you say the Court of Appeal, having tracked through and accepted that the evidence was capable of establishing that the appellant was engaged in a task of hazardous manual handling, went on at paragraph 145 to conclude as a matter of law that there was no breach of the regulation by reason of the fact that it was not reasonably practicable - - -

MR WHEELAHAN: Yes.

BELL J: - - - to have eliminated that risk because it was unforeseen that she would engage in handling multiple displays.

MR WHEELAHAN: Yes.

BELL J: The concern was to eliminate the risk that in the system in this case of removing displays from a level above your head - - -

MR WHEELAHAN: Yes. With respect, we accept that as a correct characterisation but with the insertion of an intermediate step and that is ex ante characterising the task as involving one of the characteristics found in paragraphs (a) to (c). The gravamen of the Court’s decision is that it was not open to characterise that the task that the Court identified as involving instability or an unbalanced load arose only because of the particular way the appellant chose to undertake the task.

NETTLE J: And in order to involve, it must be a necessary characteristic of it.

MR WHEELAHAN: That is our submission. That is what the word “involve” entails, in our submission.

GAGELER J: And you say, as I understand it, that the Court in paragraph 146 was dealing with a completely different aspect, or dealing with a different point. So in paragraph 145 it is addressing the reasonably practicable content of 3.1.2 and in 146 it is dealing with an independent point. Is that it?

MR WHEELAHAN: Yes, that appears to be the case, the independent point being the association between the risk of injury and the hazardous manual handling task. I want to make separate submissions about those.

GAGELER J: You seek to support both aspects of the Court’s ruling?

MR WHEELAHAN: Yes, we do.

BELL J: This was a conclusion then that the task of removing displays from a level above head height, presumably using a ladder, was not a task that carried with it the concept of the handling of unstable or unbalanced loads or loads that are difficult to grasp or hold?

MR WHEELAHAN: Yes. In our submission, that is what the majority held and we seek to uphold that decision.

BELL J: You seek to support that?

MR WHEELAHAN: Yes.

NETTLE J: It is not difficult to grasp something over your head standing on a stepladder?

MR WHEELAHAN: In this case the question would have to be: it is not difficult to grasp a piece of light card with papier-mâché on it. Our submission is that read in this way, the regulations direct an employer to identify characteristics which give rise to hazardous manual handling, hence the heading which I started with, “Hazard identification” at 3.1.1. Our submission is that the risk control measures, which the employer is obliged to implement when we come to 3.1.2 are to be directed to the hazards.

Could I come now to the text of 3.1.2? The first submission we make is that the task must be a task that it is reasonably practicable for the employer to identify as a hazardous manual handling task and I have already developed that submission. Could I come then to the nexus associated with – the submissions we make is that firstly it must be reasonably practicable to identify ex ante the association between the risk and the hazardous manual handling task.

Secondly, in development of a submission I have already made, the risk must be associated with one or more of the characteristics set out in paragraphs (a) to (c) of the definition of “hazardous manual handling”. Now, could we draw the Court’s attention to the fact that the term “musculoskeletal disorder” is employed in the second line of sub-regulation (1), and I took the Court to the definition of “musculoskeletal disorder” earlier for the purpose of pointing out that that definition already picks up the defined term “manual handling”.

Now, sometimes a useful way of seeking to construe provisions is to insert the definition of a defined term in the provision and to test it. Now, if one does that here, it is our submission that there is a distinction to be drawn between a mere manual handling task which is already picked up by the definition of “musculoskeletal disorder” and the hazardous manual handling task. In our submission, when seen in that way, the regulations direct the employer not simply to a risk of musculoskeletal disorder arising from mere manual handling, but the risk associated with hazardous manual handling, and that in turn directs attention to the characteristics of “hazardous manual handling” found in the definition of that term.

In our submission, were it otherwise, an employer would be required to identify aspects of the task that might bear no relationship to the hazards to which attention is drawn by these provisions. A particular task might involve a number of activities; they might involve mere manual handling, hazardous manual handling and, indeed, other activities which are not manual handling, but our submission is it is only the association with the hazards that are identified which attracts the operation of this provision.

BELL J: Well, that is clear from its terms, but all that is required is that it be associated with hazardous manual handling. Coming back to the construction adopted in 143, why the super-adding of “close connection”?

MR WHEELAHAN: The submission we have made is that it is close in the two ways that we have identified, that is, it must be reasonably practicable ex ante to identify. Secondly, the risk must be associated with one of the hazards. That gives content to the majority’s analysis that the association must be close. They are the submissions we have made to support that conclusion of the Court of Appeal.

GAGELER J: Which conclusion? Paragraph 145 or the 146 conclusion, or both?

MR WHEELAHAN: Paragraph 146, read in conjunction with 143. At 143, at about line 26 on the page there is reference to the requirement of a “close connection.”

GAGELER J: So 143 links to 146 and 145 is independent?

MR WHEELAHAN: Yes, but 145 is an independent basis upon which to justify the conclusion that 3.1.2 was not engaged.

GAGELER J: Yes.

MR WHEELAHAN: The third regulation which was pleaded was 3.1.3. I do not need to make any submissions on that. Its operation would be dependent upon 3.1.2 being engaged in this case. Could we take the Court to paragraph - - -

FRENCH CJ: I suppose one of the problems is relational terms like “associated with” have a kind of a sliding scale and the constructional sense that is the range of that scale is determined by reference to the purposes and so forth of the statute. We have had many, many examples of that sort of thing. But within that range it is very much an evaluative judgment about the application to particular circumstances. My concern is that it is a very big call to say that this falls outside the range that a jury might determine applicable to the facts.

MR WHEELAHAN: Perhaps I could address this now but that, in our submission, would address the Naxakis side of the case. Our learned friend made the submission that Naxakis was not relevant to this appeal. Our submission is that it is relevant because there are two steps. The first step is the proper construction of the legislation. Having construed the legislation, the second step is was there sufficient evidence such that there was a proper case to go to the jury, having regard to the principles essayed in Naxakis. I will come to address that part of the case separately. Those considerations were before the Court of Appeal, because the court set out at length relevant passages from the reasons of this Court in Naxakis.

I wanted to take the Court just very briefly to paragraph 34(a) of our written outline filed with the Court. Towards the end of their reasons, the majority referred to Justice J. Forrest’s decision in Lindsay-Field, and our learned friends have made some submissions about that. We have made a response in 34, and we stand on our response, but I just wanted to take the Court to the last two lines on page 11 of our written submissions to illustrate a point. In Lindsay-Field, it was the position taken by the plaintiff in relation to the rear of the horse that gave rise to the hazard. But that was not a hazard that would engage the definition of “hazardous manual handling”.

NETTLE J: It would be a good argument if you did not accept that the ladder was involved in the handling task. You do accept that, though, do you not?

MR WHEELAHAN: That the - - -

NETTLE J: Ladder - the use of the ladder was part of the task which the employer had to foresee and take provisions against the risks of.

MR WHEELAHAN: Yes, and as the Court of Appeal said in paragraph 145, yes.

NETTLE J: But if that were not the case, what was said by Justice Forrest might be a pretty sound basis for an argument, but given that it is accepted that the ladder was in as part of the task, how does it help?

MR WHEELAHAN: The use of the ladder was not in and of itself hazardous, looking at the characteristics in paragraphs (a) to (c) of the definition of “hazardous manual handling”.

GAGELER J: You mean the danger has to come from the papier-mâché?

MR WHEELAHAN: Yes, and the case I have to put is it is the stacked papier-mâché.

GAGELER J: Or the caterpillar.

NETTLE J: That is a greater risk, obviously – standing on a stepladder than when you are standing firmly on the ground, is it not? One would think.

MR WHEELAHAN: One would think, but it would be easy to include in the characteristics of the hazardous manual handling task using steps, but the legislators have not done that. They are directed to other characteristics.

NETTLE J: Yes, I see. Thank you.

MR WHEELAHAN: Can we come now to the submissions we want to make about Naxakis, and we can be brief. Our submission is that at paragraphs 97 and 99 to 103 of the majority’s reasons, the majority correctly identified the principles, as the citations of the passages from Naxakis would indicate. In our written submissions - - -

KIEFEL J: Well, their Honours set out quite a lot of direct quotes from Naxakis. That is often the case, whether they identified the relevant principles coming from it – it takes longer to actually identify the relevant principles. It is why people quote so much.

MR WHEELAHAN: In our submission, the relevant principles captured by the majority at paragraph 97 – albeit not in the precise language used, for instance, by Justices Gaudron and McHugh in Naxakis – what is set out in paragraph 97, in our submission, demonstrates a correct understanding of the relevant principles.

We have addressed Naxakis at paragraphs 17 to 19 of our written submissions. I will not take the Court to the text of those submissions, but we have cited some cases and set out some passages for the purposes of identifying one side of the Naxakis principles, and that is that where there is not a proper case to go to the jury, it is the duty of the judge upon application to take it away from the jury and where it is - - -

KIEFEL J: Can we just discuss what the judge determines and what is to be considered a matter for the jury? The judge certainly construes legislation.

MR WHEELAHAN: Yes.

KIEFEL J: Does the judge identify the task? I am just wondering if we - - -

MR WHEELAHAN: No, the judge analyses it at an earlier stage and that is, on the evidence, what task was it reasonably open to the jury to conclude should have been identified?

KIEFEL J: That is after the process of construction is complete.

MR WHEELAHAN: Yes.

KIEFEL J: So you construe, and so we are at the point then of the question of what goes to the jury.

MR WHEELAHAN: Yes.

KIEFEL J: The question is the identification of the task goes to the jury?

MR WHEELAHAN: Yes, but on the basis that it is reasonably open to the jury to identify a task which can reasonably lead to the result that a cause of action for breach of the regulations can be sustained.

NETTLE J: Surely the judge takes it from the way in which the plaintiff puts his case. If the plaintiff says, “I contend that the task was the following”, the judge decides whether there is evidence fit to go to the jury on that basis.

MR WHEELAHAN: Yes, with respect, we adopt that qualification because that contains the case to relevant issues.

NETTLE J: And here you accept that the task as formulated by the plaintiff was correctly formulated, namely, standing on the stepladder taking the displays off the board?

MR WHEELAHAN: Having regard to the evidence, yes.

NETTLE J: So the question was was there evidence fit to go to the jury on the question of whether that was something which the employer should have foreseen of the risk of and guarded against?

MR WHEELAHAN: Having regard to all the elements of - - -

NETTLE J: Yes, with proper directions as you would have it according to their right test.

MR WHEELAHAN: Yes, but I am agreeing to that proposition subject to the analysis of the regulations which I have sought to undertake through the submissions.

BELL J: Coming back to that analysis, when the employer is looking at risks, the employer considering the risks of an employee removing a display from above head height with the use of steps does not factor in the use of steps in considering whether the characteristics of (c) in the definition is met. That is, when you are handling something on steps, it may be more difficult to handle than if you were not on steps but that is, on your argument, as I understand it, not something you take account of.

MR WHEELAHAN: No, I would not, with respect, embrace that proposition as part of my argument.

BELL J: So you accept that in the identification of the task the employer takes into account that removing a display from above head height using steps may involve some instability in that which is handled by reason of the fact that you are on a set of steps?

MR WHEELAHAN: It might, but our submission is drawn back to the text of the regulation and take paragraph (c), for instance, of the definition of “hazardous manual handling”. What is required is that the load be unbalanced.

BELL J: That is the point I was raising with you. Do you factor into that that the load may be unstable, unbalanced, difficult to grasp or hold by reason of the fact that you are on a set of steps?

NETTLE J: Working overhead.

MR WHEELAHAN: Yes, I must accept that.

BELL J: Yes.

MR WHEELAHAN: Because that is a necessary characteristic of the task and so just making submissions generically the characteristics of the task may in many circumstances that one could imagine lead to the load itself being unstable or unbalanced. Just addressing Naxakis, the only point we wish to emphasise in our written outline therefore is the corollary of allowing a case to go to the jury is the duty of the judge to take the case away if it is not a proper case. That duty in many cases will assist the trial judge because in cases where there is no sufficient evidence it will be difficult for the trial judge to direct the jury where there is no reasonable case that is open.

Could I come now to the evidence – this is paragraph 4 of our list of propositions. Could I start by taking the Court to the transcript at page 88 – and this is in the evidence of the appellant. It is in the first volume of the appeal book. I want to start at 88, line 26.

NETTLE J: That is the transcript page 88 or appeal book 88?

MR WHEELAHAN: Yes. I should be clearer. It is appeal book 40, transcript 88. So, the evidence was:

I didn’t want to damage them so I had them stacked a couple on top of each other, and I had them this way in front of me.

Then the appellant was asked:

Was there any other way that you could reasonably carry those props in order to step back down the ladder whilst holding them without damaging them? --- I can’t see any other way, no.

Then at 92, transcript 92, appeal book 44, line 11, we draw the Court’s attention to transcript 92, line 11 to transcript 93, line 2. That passage is set out at paragraph 20 of the majority’s reasons and thirdly and finally, to transcript page 171, line 21, to 172, line 19, and that was set out in the majority’s reasons at paragraph 24. Now, our submission is that the tenor of that evidence is that it was the fact that multiple cards were stacked on top of each other that led to the instability and we rely upon that evidence as supporting the majority’s conclusion in that regard.

GAGELER J: What conclusion, sorry?

MR WHEELAHAN: That it was only that feature of the task that the appellant chose to employ, that is stacking multiple cards on top of each other that engaged the definition of “hazardous manual handling”, in particular paragraph (c), but the majority’s reasoning is that that was not something that it was reasonably practicable to identify looking prospectively, because it was a product of the particular way the appellant chose on this occasion to undertake the task.

NETTLE J: But if you do them one at a time, you would be there all day, would you not?

MR WHEELAHAN: Well, that was her evidence but that was not the only alternative. Alternatives included doing it at class time when children were available. The evidence was that the children handed them up when they were placed on the pin board. It was open to the appellant to wait. She did it after hours; that is the evidence, but she could have waited until the following day and handed them down, just as they had been handed up.

Could I take the Court now to some documentary evidence - firstly to appeal book page 346 which is in volume 2. This is attachment 7 to the 2005 Occupational Health and Safety policy and it is referred to in the majority’s reasons at paragraphs 87 and 117. So we draw the Court’s attention to the fact that on the left-hand side of the page there is a column with the heading “Task” and the first item is “Placing and removing displays from pin boards”.

Then across the page there are some number of characteristics where it can be observed that they correspond to the characteristics in the definition of “hazardous manual handling task” in the regulations. No box was ticked in relation to the task, “Placing and removing displays from pin boards”, but we take the Court to the following page, page 347, and the second task on page 347 is, “Writing on blackboard/whiteboard”.

Now, if we take the Court to that entry to support a submission that these were tasks that were mere candidates for “hazardous manual handling task” and our submission would be it would be difficult to conceive that writing on a blackboard or whiteboard would involve handling loads that are unstable or unbalanced.

GAGELER J: It might involve adopting an awkward posture.

MR WHEELAHAN: It might, but it would have to reasonably involve adopting an awkward posture in order to engage the regulation. Our submission is that this is a generic form. It was downloaded by a witness, Sally-Ann Morrison, and, without reading her evidence on that topic, it is at appeal book 267 to 268, transcript 498, line 20 to 499, line 25. Our submission is that this document is silent on the question whether placing and removing displays from pin boards might be capable of involving hazardous manual handling.

Could we take the Court then to a second document, to which our learned friend has already referred, which is a manual handling risk assessment which is at page 321 of the appeal book. There are two risk assessments in the appeal book, (16) and (17). The differences include that the job task for (16), on page 321 of the appeal book, at the top right-hand corner of the form is “Hanging large/heavy art work for displays.”

On the right-hand side of the book, at page 322, on the top right-hand side the job/task is identified as “Hanging paper & cardboard displays.” Our submission is one must look at this form in its entirety for context. If one looks in the box, at about line 15 on page 322, there is a heading “Task/process steps.” It is described as “Climbing ladders to hang light displays.” The second is “Stretching up to hang displays.” We draw to the Court’s attention on the right-hand side of the box labelled A, under the heading “Handling loads that are unstable, unbalanced or difficult to move” there is a tick.

KIEFEL J: Mr Wheelahan, forgive me, would you remind me why we are looking at this evidence and what question it is addressed to.

MR WHEELAHAN: Because the submission I have to sustain to support the Court of Appeal’s reasons is that there was insufficient evidence at trial for a case to go to the jury on the question whether it was reasonably practicable to identify a task as a hazardous manual handling task. This evidence bears on that question, so therefore I wish to take the Court to - - -

KIEFEL J: But how does it bear on it?

MR WHEELAHAN: It might be thought that the jury might be entitled to take it into account.

NETTLE J: As to whether it was foreseeable that it would necessarily involve handling an unstable load?

MR WHEELAHAN: Yes.

GAGELER J: How does it help you?

MR WHEELAHAN: It does not necessarily help me, but I just want to ensure that I draw the Court’s - - -

NETTLE J: You want to disarm it?

MR WHEELAHAN: Yes, but I also want to ensure I draw the Court’s attention to the document.

GAGELER J: So does this document actually show that the employer identified as a relevant hazard the handling of an unstable load while climbing a ladder to hang a light cardboard display?

MR WHEELAHAN: That, with respect, is a conclusion that would be reasonably open.

GAGELER J: Yes, and you say that conclusion being reasonably open, it is not reasonably open to conclude that the employer ought to have foreseen that doing the same task but this time taking down the cardboard display would give rise to a relevant risk?

MR WHEELAHAN: Yes, and so I just want to very briefly address some submissions to this document. So the first submission we make is that correctly understood what is described here is a different task and we understand that our learned friend accepted that in argument. The second submission we make is one has to read the document as a whole, so that the two attributes here are climbing ladders and stretching.

We look at what is identified as the risk control recommendations. They include installing a pulley system. That might be responsive to a risk involving heights per se, marking maximum heights, designing mechanical aids, advising staff, providing documentation. In our submission, the risk control recommendations inform the nature of the risk that in fact was identified.

Now we also submit, in support of our submission that this was a different task that there is nothing in this document to suggest that the source of the instability or imbalance, as it was in this case, would be stacking multiple cards on top of each other with the consequence that vision was hindered. It is that particular hazard which, in our submission, it was necessary to identify ex ante. That is not the same hazard that is identified by this particular document.

KIEFEL J: So you rely upon these documents to say that because they were not identified they were not identifiable.

MR WHEELAHAN: No, I do not rely on that particular proposition. I rely on a more general proposition which aligns with what the majority in the Court of Appeal held at 145 and that is it is not reasonable to foresee that the task that the appellant was required to undertake would be undertaken in the particular way she chose to do it, thereby giving rise to one of the statutory hazards.

NETTLE J: You are taking us to this to say that just because the employer foresaw the possibility of unstable load giving rise to risk going up the ladder there was no reason for him to see such a risk arising coming down the ladder?

MR WHEELAHAN: I make that submission but my submission is a bit more elaborate than that – that is, there is nothing in this document to suggest that the source of the instability is stacking papier-mâché cards on top of each other with the consequence that vision was impaired, which was the actual hazard which arose in this case.

So, therefore, the evidence, including this document at page 322, does not gainsay the majority’s conclusion at paragraph 145 which is that apart from conjecture, and one might add hindsight, it is not open to conclude that it was reasonably practicable to identify ex ante the prospect that removing light displays from the pin board would have as a necessary characteristic instability because we know here, having regard to the appellant’s evidence to which - I at least referred the Court to it - the instability arose only as a result of the way the appellant chose to carry out her tasks.

FRENCH CJ: What do you say about paragraph 133 at page 534, “that there was evidence fit to go to the jury that the load carried by the appellant was unstable or unbalanced” and that “Regulation 3.1.1 was potentially engaged”? It seems as if regulation 3.1.1 has sort of been acknowledged but sidelined because the bite in terms of civil liability came from 3.1.2 and 3.1.3.

MR WHEELAHAN: The submission we make about 133 of the majority’s reasons is that is the turning point in the majority’s analysis. They accept in fact that the load was unstable and they then turn to the ex ante analysis.

FRENCH CJ: That is to do with 3.1.2 and 3.1.3.

MR WHEELAHAN: Could I take the Court briefly to some passages in the reasons of Justice Digby, the dissenting judge, commencing at appeal book 584 in the third volume, paragraph 325. In our submission, the premise from which Justice Digby commences at paragraph 325 is correct. But we want then to turn to paragraphs 353 to 354 of his Honour’s reasons. We take the Court to 353 to demonstrate the departure – or the difference between Justice Digby and the majority. Justice Digby looks at the actual task of demounting displays and says it:

arguably involved manual handling of unstable and unbalanced loads which were also difficult to grasp or hold, notwithstanding that they were individually and, when a number were combined, relatively light.

The difference between Justice Digby and the majority is the majority does not consider that the carrying down of multiple cards was to be foreseen as a matter of reasonable practicality.

At 354, his Honour, in our submission, focuses on the task in question – that is, the task actually performed – and that is another difference between at least this aspect of his Honour’s approach and the majority approach, where the majority quite clearly hang their reasons off the idea one must look at it only prospectively.

BELL J: But his Honour is here looking at the particular facts with a view to considering whether there was evidence sufficient to go to the jury. Surely one cannot do that without looking at the facts?

MR WHEELAHAN: Yes, I accept that latter proposition.

KIEFEL J: His Honour is dealing with this under the heading of causation. If one compares what his Honour said at paragraph 297, appeal book 577, his Honour makes the point that the regulations are directed to “hazard identification, risk control”, not predicated on the “actual occurrence or precise accident”.

MR WHEELAHAN: The heading “Causation” is above paragraph 325 - - -

KIEFEL J: Yes, I know, but what I am really saying is what you have been discussing are apparently questions of factual causation. His Honour, when discussing the approach to be taken to the regulations in the preceding section, at 297 and 299 discusses that it is about risk control rather than taking into account the actual occurrence. The criticism that you are making, I think, was not borne out by what his Honour said before.

MR WHEELAHAN: Yes. The way I expressed myself was to seek to draw a distinction between the approach of Justice Digby and the approach of the majority. There is an intermediate heading that appears above 342, “Conclusions as to whether the Appellant’s cause of action for breach of statutory duty has any real prospect of success”.

KIEFEL J: Yes, I see.

MR WHEELAHAN: At 342 at line 21 his Honour repeats the phrase “any real; prospect of success” and at 347 at about line 19 again his Honour refers to “real prospect of success”. That is a point that assists the appellant but “real prospect of success” is not the test that one finds in any of the reasons in Naxakis. That is a test found in Victoria in the Civil Procedure Act in the context of applications for summary dismissal.

I come then to the final paragraphs of our list of propositions. By reference to the text of the legislation and also by reference to the evidence which we have taken to the Court, we have sought to develop the propositions that we have identified at paragraphs 5, 6 and 7. If the Court pleases.

FRENCH CJ: Thank you, Mr Wheelahan. Yes, Mr Uren.

MR UREN: If the Court pleases. If I could address first what appears to be our learned friend’s major proposition which is that the concept of reasonable practicability has to be imported into the regulation in the portion that is currently under consideration. In our submission, that is not what the words of the regulation say at all. That matter is addressed in a later stage of the proceeding which was not relevant to the present case.

Secondly, it is quite inconsistent with what was said in Coates when the Court of Appeal there approved what was said by Justice Harper, that the question in cases such as the present is not whether the detail of what happened was foreseeable but whether accidents of some class or other might conceivably happen. You look at what might happen, not what the employer or other relevant person might reasonably apprehend and therefore be able to deal with.

It is a question of whether accidents of particular class or other might conceivably happen and the relevant concept in the present circumstances is that of “associated with”. It is nothing to do with the employer’s apprehensions, reasonable or otherwise. The question is whether the risk is associated with the task and that, in our submission, is a factual issue. If it is, then other considerations apply with respect to removal but not with respect to the question of whether there is an association between risk and activity.

BELL J: Is the reasonable practicability with which the regulation is concerned, the practicability of eliminating the risk?

MR UREN: Yes, yes.

BELL J: That is as far as its field of operation goes?

MR UREN: In our respectful submission, yes.

GAGELER J: Then part of that is the practicability of identifying a risk – being aware of a risk.

MR UREN: That is, in our submission, covered by the question of whether the accidents of the sort – relevant sort might conceivably happen. If they might, you have to do what is reasonably practical to get rid of them. But the two concepts should not be conflated. They have been conflated in Chugg. The reason why Chugg is not relevant here is because the offence in Chugg included – and this is what the High Court decided – the offence in Chugg included because the statute said so the practicability concept and, therefore, practicability was a matter which had to be addressed by the prosecution in that particular case. But that was because of the description of the offence contained in the statute. It was not because of anything which was relevant to the regulation which is under consideration here.

Also, one of the cases referred to in our list is that of Capral Aluminium and in Capral Aluminium it was said that foreseeability is a not a matter which is relevant to liability because Capral was a sentencing offence - a matter – it goes to the question of the penalty which is appropriate but not a matter which related to liability. That was a criminal prosecution but, nonetheless, the concept, in our submission, is equally applicable here because you do not have a different interpretation of the provision depending on whether the matter in which it arises is civil or criminal. If I could get the – find where my note is, I could actually get the page reference to Capral.

NETTLE J: It is 49 NSWLR 610.

MR UREN: If the Court would excuse me for a moment, I think it is paragraph 81 at page 646, and it refers to a longstanding decision called Drake Industrial. It may be the New South Wales situation is a bit complicated I think by the fact that one portion of what in Victoria has to be proved by the prosecution I think is an exculpatory matter that has to be proved by the defence, but I do not think that affects our present point.

So we really go back to the prime point which is whether the risk is associated with the task and whether that is a matter of objective fact. If that submission that we make, supported as it is by authority is right, then the proposition that you take into account, reasonable apprehension or anything of that sort, in working out whether a risk is associated with a task, must go by the by, especially as it does not seem to be supported by any particular authority apart from that of the Court of Appeal.

FRENCH CJ: Risk itself being a notion of probability does not involve any ex ante element?

MR UREN: No, risk is risk.

FRENCH CJ: Well, it is probability of something.

MR UREN: Risk is, yes.

FRENCH CJ: Something bad happening.

MR UREN: Yes. Well, there has to be some degree of likelihood that - - -

FRENCH CJ: Maybe it has to be judged objectively. I am not saying that - - -

MR UREN: Yes, I follow what your Honour says, but nonetheless, the test is not a difficult one to satisfy, because whether – and especially when it has been said that the occurrence of an accident itself can be evidence of the fact that there is a risk, it is difficult to see how an accident could happen without there being a risk of occurring - - -

FRENCH CJ: Well, it has to be a causal pathway between the outcome and the task.

MR UREN: Yes, but also for prosecution purposes, if you were to prosecute somebody for not having complied with the obligation to remove the risk – it is true that there has to be a causal path between the two events,

the injury and the other one, but nonetheless, the primary object is to ascertain whether there is a risk. It is difficult to see why, if an accident happens which is causally connected with some task, there was not a risk of injury associated with the task itself, even apart from the question of whether an accident had or had not happened.

Some attention has been paid by our learned friends to the fact that the appellant chose to remove several displays at the one time. She herself attributed that to efficiency and that I think is at page 150 of the transcript at 104 of the appeal book and of course it is certainly - I mean, when one carries files or groceries from the car to the house or so forth, one often carries more thing at a time, simply for efficiency sake. You do not want to go up and down, up and down, up and down, and up and down.

In one sense, you might say that increases the risk of a slip or a fall if you have to do the same thing a number of times. She attributed to her choice of that method of approach to efficiency and it does not seem, so far as we can see, that she was challenged on that ground. It was interesting to see that our learned friends’ argument suggests a number of methods which the appellant might have employed for the purposes of eliminating the risk herself but the interesting factor is these methods were not ones which were suggested by the employer.

It is the employer’s job to suggest - to eliminate risk by proposing measures which are addressed to that purpose but the argument seems to be that the legislature leaves that in this particular sort of case to the employee which, in our submission, is to turn the matter completely on its head. I think there is probably nothing else we need to say by way of reply.

FRENCH CJ: Thank you, Mr Uren. The Court will reserve its decision. The Court adjourns to 9.45 tomorrow morning for pronouncement of orders and otherwise to 10.15.

AT 12.54 PM THE MATTER WAS ADJOURNED