WCRA: Griffiths appeal allowed – ss 26(3) & 28 WPHSA & Code of Practice

Griffiths v State of Queensland [2011] QCA 57

I refer to my earlier posting for the facts and decision by Daubney J. Muir and White JJA allowed the appeal and ordered the defendant/respondent pay the agreed damages of $639,435.91. Chesterman JA dissented and dismissed the appeal.

The issue on appeal was despite the defendant’s breach under s 28 of the Workplace Health and Safety Act 1995, whether they could escape liability by establishing compliance with s 26(3) of the Workplace Health and Safety Act 1995 (Qld) (“the Act”) which provided:

26 How obligations can be discharged if regulation etc. made

(3) If a code of practice states a way of managing exposure to a risk, a person discharges the person’s workplace health and safety obligation for exposure to the risk only by –

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

(b) doing all of the following –

(i) adopting and following another way that gives the same level of protection against the risk;

(ii) taking reasonable precautions;

(iii) exercising proper diligence.”

 

The secondary issue as to the civil cause of action did not loom large as all parties on the appeal agreed that reasoning of Daubney J was incorrect.

Muir JA:

[31] The primary judge appears to have concluded that the respondent had met the requirements of the Code. In that regard his Honour said:[15]

“[48] It is important to note that the Code recognises that all manual tasks could potentially be recognised as a hazard, but that not all manual tasks have significant risks associated to them such as would warrant the implementation of a formal risk assessment. It is my opinion that, having regard to all the factors and the requirements of the Code, namely the relatively light weight of the soda lime canister, the infrequent nature of the task, the other options available to the hospital to have a vital piece of equipment sterilized, the lack of suggestion of possible injury, the large number of items processed in the CSSD and the nature of the work being undertaking in general in the area, that the defendant was reasonable in not identifying this as a task which would require a formal risk assessment under the Code.”

The primary judge then said:[16]

“[49] This situation resonates with the sentiments conveyed by Fraser JA in Parry that the significance of the triviality of the risk is important, not in determining liability under section 28(1), but in the ease with which the defendant can rebut the prima facie liability established by the proven contravention.

[50] I am satisfied that the defendant has discharged its duties under the WHSA and would therefore not grant the relief sought for breach of section 28(1) WHSA.”

[32] The fact that the canister was a vital piece of equipment which had to be sterilised would not seem to me to detract from the need for a risk assessment or from the need to handle it safely. A purpose of the Code is to ensure that workplace activities are performed safely, not that they be prevented or restricted. The fact that a task is performed infrequently may not mean that it is any safer to perform. Lack of familiarity with the problems involved in performing the task may increase the risks involved in performing it and thus suggest a greater need for a risk assessment.

[33] It does not appear to me that the conclusion that the respondent was reasonable in not identifying the Task as one “which would require a formal risk assessment” was, in my view, debatable. The Code stated a way of managing exposure to the risk of musculoskeletal disorders caused by manual tasks by, as has already been discussed in more detail, identifying problem tasks, assessing the risks associated with such tasks, controlling the risk and monitoring to review the effectiveness of the controls. Consultation and training were stated to play important roles in the process. Formal, in the context of a risk assessment under the Code does not equate necessarily with “elaborate”.

[34] But even if the primary judge was correct in concluding that a formal risk assessment was not required, what was done by the respondent fell short of meeting the risk assessment requirements of the Code.

[35] Despite the level of concern about the Task expressed by staff which had prompted Ms Ricardi to attempt to have the Task removed from her department’s duties, after she was told that her department could not avoid responsibility for it, she did not “see anything of benefit discussing it further because we know that we need to process this item, we know that it’s awkward to handle”. A short while later in her evidence Ms Ricardi reaffirmed that, in her view, it was futile to further discuss the problem of the canister. The sterilising department had responsibility for it and that was that.

[36] It is reasonably plain from Ms Ricardi’s evidence that she did not give consideration to any consequences which might flow from: the canister’s uneven weight distribution; the fact that the canister was wet and awkward to handle and from the need to grasp the canister and lift it from a tub of a particular height. Certainly, no thought was given by her to how the canisters might best be handled to minimise awkwardness and difficulty in handling and the risk of its slipping. Ms Ricardi made no risk assessment of any kind as she did not perceive there to be a “great risk” associated with the handling of the canister. The personnel referred to in s 6.2 of the Code as necessary for “successful risk management” were not involved.

[37] As counsel for the appellant pointed out, Ms Ricardi based her no “great risk” conclusion on her own handling of the canister rather than on a risk assessment, informal or otherwise. It was not part of her role to observe whether the appellant or others were handling the canister in an appropriate way to avoid risk. She did not observe “work processes” or “speak with workers” in any relevant way.[17]

Was there consultation within the meaning of the Code?

[38] An issue which loomed large on the trial and on the appeal was whether consultation within the meaning of s 2.1 of the Code had taken place and whether training had been given to the appellant “in sufficient depth to do [her] jobs safely”. The primary judge did not decide directly that such a consultation had taken place but if that inference may be drawn from paragraph [46] of the primary judge’s reasons, it is my view that he erred.

[39] Workplace discussions about the awkwardness involved in handling the canister do not amount to a relevant consultation. The consultation the Code has in mind is “an important risk management strategy”[18] for use in “identifying risks and developing controls in the workplace”. A “consultation” may be informal[19] but if the purpose or effect of conduct is not to identify, assess and/or control risks it will not constitute a relevant “consultation”. That was the case here. The absence of consultation would not, of itself, necessarily establish that the way stated in the Code for managing risk was not followed. Consultation is “an effective way of identifying risk” but s 8 of the Code accepts that risks may be otherwise identified. The significance of the lack of consultations for present purposes is that it is a further illustration of the respondent’s failure to comprehend and apply the Code’s requirements.

Was there compliance with the Code’s training requirement?

[40] The primary judge peremptorily dismissed the submission that compliance with s 2.1 of the Code required training in relation to the handling of the canister. His Honour said that:[20]

“[47] …Counsel for the plaintiff suggested that the plaintiff should have been shown specifically how to lift this particular item. The logical consequence of this submission is the preposterous proposition that the plaintiff should have received specific individual lifting instruction in relation to each item which passed through CSSD.”

[41] The “logical consequence” of the submission was not as the primary judge perceived. The canister was known to be awkward to handle. It was wet and its weight unevenly distributed. It caused concern. There was an attempt to avoid having to handle it at all. The evidence did not suggest that there was any other such item among the large number of items sterilised every day. The great bulk of those, it would seem, were contained in trays. To the extent that they were not handled in trays there is no specific evidence about them.

[42] The fact of the matter was that the rudimentary training given to the appellant about the lifting and handling of objects had little, if any, bearing on the handling of the canister. A precaution which could have been taken in relation to the canister was the giving of instructions to shift it by grasping it firmly in a described place or places using both hands. Staff could have been warned not to lift it with one hand placed on a flat, slippery surface and to ensure that their grip was secure. They could have also been told to pause and think before handling it as it was awkward. Consideration could also have been given to whether it was desirable that it be handled by shorter than average or weaker than average persons. Mr O’Sullivan’s opinion was that staff should have been instructed to avoid sudden, extreme or very rapid movements to save a falling item. He said that “such a moreover is widely recognised as a risk factor for low back injury” and should be avoided.

[43] The primary judge observed that the five kilogram canister was “considerably less than the weight referred to in Schiliro[21] where the court held that shovelling 8.5 kilograms of sand was of minimal risk and did not warrant a risk assessment. If, which may be doubted, there was utility in comparing the facts of Schiliro with the facts of this case, the appropriate weight related comparisons would not be dead weights but the forces to which the relevant activities exposed the plaintiff at the critical time.

[44] Mr O’Sullivan’s evidence was to the effect that some 14.45 kilograms of force were necessary to arrest the fall of the base of the canister. It is relevant also that a four kilogram load weight held close to the body equates to a 20 kilogram load weight if held 50 centimetres from the body.[22]

The appellant has thus established errors in the primary judge’s reasoning but in view of earlier findings it is unnecessary to conclude whether there was

non-compliance with the provisions of the Code in relation to training.

Was there compliance with s 26(3)(b) of the Code?

[45] Once it is concluded that the respondent failed to adopt and follow the way stated in the Code to manage exposure to the subject risk, liability has been established unless the respondent has shown that it did all that was required by it under s 26(3)(b) of the Act. It is apparent from the above discussion that the respondent did not “adopt and follow another way that gives the same level of protection against risk”. (emphasis added)

White JA:

[136] The objective of the Act was (and is) to prevent a person being injured by a workplace.[61] That objective is achieved by preventing or minimising a person’s exposure to the risk of injury caused by workplace activities.[62] The Act establishes a framework for preventing or minimising exposure to risk by imposing workplace health and safety obligations and establishing benchmarks for industry through, inter alia, advisory standards and the development of codes of practice involving both employers and workers. The purpose was and is to help reduce the human cost and financial burden of injury as well as the cost of the workers’ compensation scheme caused by workplace injuries. The Manual Tasks Code of Practice 2000 sought to implement the object of the Act in relation to manual tasks undertaken in the workplace. The focus of the Code is the identification of “problem tasks” as an aspect of risk management. The Code emphasises the need to identify manual tasks which have the potential to contribute to a musculoskeletal disorder.

[137] The evidence at trial failed to indicate any systemic process at all for identifying manual tasks which had the potential for musculoskeletal injury. Even if Ms Ricardi did not, herself, think that moving the canister from the tub to the decontaminator was a manual task that had the potential to contribute to a musculoskeletal disorder, the concerns of more than two or three workers who had expressed their unhappiness with the item were directly known to her. From her own evidence it appears that Ms Ricardi thought that she need only engage in a risk assessment if she was of the view that it constituted a “great” risk.[63] As the Code makes clear, individual factors such as a worker’s physical capacity may mean that a task will have adverse health effects for one person and not another. The appellant’s height may have caused difficulty in performing the task. Ms Ricardi being of approximately the same height as the appellant and not regarding the task as involving great risk, did not, apparently, consider this as a factor. It is clear that the task was, at least for some of the workers in the CSSD, a problem task.

[138] The process employed by Ms Ricardi in dealing with their concerns was to attempt to avoid cleaning the canister in the CSSD. When that was unsuccessful she abandoned the attempt. That was hardly responsive to a risk management process envisaged by the Code. The primary judge concluded that because Ms Ricardi worked alongside other workers in the CSSD, “appeared to be willing to listen to their concerns,”[64] and had discussions with theatre staff, that was sufficient to discharge any obligation to identify a problem task and assess it for its potential to cause a musculoskeletal injury. His Honour appears to have concluded that while awkward, the canister had no potential for causing such an injury. He described it as weighing “only 5 kilograms”, and a weight “considerably less than the weight referred to in Schiliro”.[65] This suggests a disregard for the evidence of Mr O’Sullivan that the weight the appellant had to contend with at the crucial time after the slip was a weight in excess of 15 kg.

[139] The primary judge appears to have adopted Ms Ricardi’s strongly expressed evidence that it would be impossible to carry out a risk assessment and training for each of the 10,000 to 12,000 items which passed through the CSSD each month.[66] That was not the appellant’s case. So far as the evidence revealed it was only the canister which was the subject of complaint, and from more than one worker. His Honour said:

“It is important to note that the Code recognises that all manual tasks could potentially be recognised as a hazard, but that not all manual tasks have significant risks associated to them such as would warrant the implementation of a formal risk assessment.”[67]

It is true that the expression “significant risks” is used in s 2 of the Code but immediately following is the directive to select tasks for assessment “that may have the potential to contribute to a musculoskeletal disorder”. Furthermore, as mentioned, the Code refers to the needs of individual workers and, importantly, for a systemic approach to the identification of manual tasks having risks associated with them, not to approach the discharge of the obligation on an ad hoc casual basis. The Code is at pains to emphasise the importance of the identification of risk by consultation and observation in the workplace itself but that is only part of the process.

[140] The primary judge concluded:

“It is my opinion that, having regard to all the factors and the requirements of the Code, namely the relatively light weight of the soda lime canister, the infrequent nature of the task, the other options available to the hospital to have a vital piece of equipment sterilized, the lack of suggestion of possible injury, the large number of items processed in the CSSD and the nature of the work being undertaken in general in the area, that the defendant was reasonable in not identifying this as a task which would require a formal risk assessment under the Code.”[68]

His Honour apparently regarded the risk of injury as trivial since he referred to observations of Fraser JA in Parry v Woolworths Ltd[69] that the significance of the triviality of the risk was important to demonstrate the ease with which a defendant could rebut the prima facie liability established by the proven contravention. His Honour was satisfied that the respondent had discharged that onus.

[141] A number of the factors which influenced the primary judge in reaching that conclusion were not, in my view, relevant to the enquiry. The infrequent nature of the task is no reason for failing to undertake a risk assessment. If it constitutes a risk it will be a risk on each occasion no matter how infrequently carried out. That it was a vital piece of equipment needing to be sterilised did not detract from the obligation to assess the risk. How the problem would be managed after the assessment process was for the next stage. The concept of a formal risk assessment under the Code might have involved referring the matter to the respondent’s relevant workplace health and safety committee. The Act and the Code are fundamentally concerned with the reduction of injury in the workplace for the very laudable motives of reduction in the toll on individuals, their families and the overall cost to the community, including to employers. In my view the primary judge erred in his ultimate conclusion. [70]

[142] The primary judge also concluded that s 30 of the Act did not confer a civil cause of action. There are mixed authorities on this issue[71] which it is unnecessary to resolve. It was accepted by both parties on appeal that his Honour’s reasoning was incorrect. But even if s 30 conferred a right to recover damages, that right does not go beyond those rights in s 28.

Brisbane Barrister – David Cormack

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