By Stuart Eustice, Partner, Holly White, Lawyer, and Emily McDougall, Seasonal Clerk

Young was employed by Best Bottlers Pty Ltd (Best Bottlers, a wine packaging company) working with a machine that removed wine bottles from the pallets on which they were stored. Young’s work duties included using a ‘duck knife’ to cut plastic straps and wrapping from the pallets of bottles before they were processed by the machine. On 7 April 2016, about four hours into his shift, Young suffered injuries to his right shoulder and elbow while using the knife to cut the plastic wrapping at the base of a pallet. He alleged the blade of his knife had become ‘very blunt’.

Young commenced proceeding against Best Bottlers in negligence and for breach of statutory duty in respect of work-related injuries as a result of the incident and due to the heavy and repetitive nature of his work duties over the course of his employment.

Relevantly, the evidence showed Young noticed the knife was not as sharp as it should have been a day prior to the incident. Before commencing his shift on 7 April 2016, Young did not open the knife to inspect the condition of the blade, nor did he inspect it during his shift or ask his supervisor for a replacement blade. He accepted the process of changing the blade was ‘pretty obvious’ and that he should have asked his supervisor for a new one.

Decision of Trial Judge

The Trial Judge held:

• Young’s injuries were caused by the incident, not the nature of his work duties;
• Young’s claim in negligence was not made out because Best Bottlers’ system for the provision of replacement blades was ‘reasonably safe’ and the system was working as it was intended to work on the date of the incident;
• Young’s claim for breach of statutory duty was made out because Best Bottlers had breached regulations 3.1.1-3 of the Occupational Health and Safety Regulations 2007 (Regulations), the injury was a ‘musculoskeletal disorder’ caused by the intrinsic risks of the ‘hazardous manual handling’ task; and
• Young was not contributorily negligent because ‘he described no particular difficulty cutting on 6 or 7 April 2016 prior to the incident’ and ‘he was acting in accordance with the system of work’ prescribed by Best Bottlers at the time of the incident.

Appeal

Best Bottlers appealed the decision on the basis that:

1. A breach of statutory duty cannot be demonstrated simply by identifying a breach of the regulations and satisfying the definition of ‘musculoskeletal disorder’ without establishing causation.
2. In an action for breach of a statutory duty under the Regulations, causation requires a causal link between the type of injury sustained and the nature of the task being performed at the time of injury.
3. While Best Bottlers accepted a breach of the Regulations, it was not causative of Young’s injury as the risk was obvious to experienced workers.

Young submitted he ought to have succeeded in his negligence claim on the basis that the system of work was unsafe. This submission was rejected as it had not been plead at trial and therefore could not be advanced by way of appeal.

The Victorian Supreme Court Court of Appeal held:

1. Young had the burden of proving the casual link between the breach of the statutory duty and his injury.
2. The Regulations incorporated the need to establish causation and it did not hold that causation in an action for breach of the Regulation was established by identifying an ‘association’ between the breach and the injury.
3. Suggested training in what to do if the blade became blunt, instructing employees to change the blade on a weekly or fortnightly basis or making blades available to employees would not have made any difference to the injury, therefore there was no established causal link between any breach by Best Bottlers and Young’s injury.

The Court of Appeal held leave should be granted and the appeal allowed. It ordered judgment for Best Bottlers.