Civil Liability for injury in church hall

Workplace Health and Safety Law in Australia 300

There was a recent reference in the excellent “Law and Religion UK” blog to a decision on the liability of a Church of England vicar and Parish Council for an injury suffered in a church hall: see “Church liability: fall from ladder” (David Pocklington, 8 March 2017). Since this case brings together two of my main academic interests, Law & Religion and Workplace Health & Safety (see my book on the topic, 2nd ed 2016, the cover of which is above), I couldn’t resist a comment on how this sort of case may have been resolved in Australia. 

A. The UK Casson decision

The recently noted decision was that of the England and Wales Court of Appeal in Casson v Hudson [2017] EWCA Civ 125 (3 March 2017). Mr Casson was at the time a prisoner at Her Majesty’s Prison Kirkham, but on day release and working in the hall owned by the Parish of St Wilfred’s, Mereside, Blackpool. He fell from a ladder that he said he was using to prepare part of the hall for painting. His official supervisor was a local community worker, Ms Reid, who had instructed him not to climb ladders while working, but was not present at the time of the accident.

Mr Casson was not an employee of the Parish or the vicar, the Rev Peter Hudson. His action was primarily based on the tort of “breach of statutory duty” (BSD). (This happens to be another favourite academic topic of mine! For some of my articles on the tort see here and here. For present purposes all that needs to be said is that generally safety regulations have been held by the courts to create civil liability for breach, and can be used, even if an action in “negligence” can’t be, to sue for compensation for injury. It is worth noting that in the UK these days the Cameron Government has excluded civil actions based on safety laws, under changes made by the Enterprise and Regulatory Reform Act 2013 (UK), which amended s 47 of the Health and Safety at Work etc Act 1974 (UK) to remove the availability of a BSD action in relation to such regulations. But the accident here happened in December 2009, before those amendments. In Australia, as we will see, such actions are still possible.)

The specific UK regulations being used as the basis for the action were the Provision and Use of Work Equipment Regulations 1998. Reg 3(2) imposed certain obligations as to safe equipment on an “employer”, which were not relevant here, but reg 3(3) relevantly provided that:

“The requirements imposed by these regulations on an employer shall also apply –…
“(b) subject to paragraph (5), to a person who has control to any extent of –…
(ii) a person at work who uses or supervises or manages the use of work equipment; or
(iii) the way in which work equipment is used at work, ”
and to the extent of his control.”

While the ladder had slipped while Mr Casson was working from it, there was some doubt whether it was really unsafe. In any event, in the circumstances here it was held that neither the vicar nor the Parochial Church Council had any “control” over Mr Casson himself or the way he was doing the work. Oddly, he had been given free reign as to the jobs he should do, and no-one from the church had asked him to do the small painting job he was doing, or was watching him do it. The ultimate findings, summed up by Lord Justice David Richards for the court, were as follows:

[18] In order to engage the duties to provide information, instructions and training and to ensure that the ladder was suitable for the purpose for which it is used (regulations 8,9 and 4), the Respondents would have to be a person who had control to any extent of either “a person at work who uses or supervises or manages the use of work equipment” or “the way in which work equipment is used at work” and in either case “to the extent of such control”. In the light of the finding that Mr Casson was not instructed to do any painting but did so on his own initiative and that he had not been given any permission to use the ladder, and indeed was forbidden from doing so both by the terms of his placement memorandum of understanding and by the instructions of Ms Reid, it is impossible to conclude that the Respondents fell into either of these categories.

B. The Australian situation

So no liability for the church in that situation. But the case reminds us that in some circumstances there may well be such. I thought it was worth offering some comments on how this might work in Australia.

1. Civil Liability of local churches generally

In general there is no doubt that people who are injured on church premises or when engaged in church activities might, in an appropriate case, take a tort action against the church. But what do we mean by “the church” here?

I have commented briefly in the past on the unusual situation that may apply where churches are sued. In broad terms, more recently formed and smaller churches often have “legal personality” because they choose to be incorporated under legislation governing “not for profit” organisations (in my home State, NSW, the relevant Act is the Associations Incorporation Act 2009.)

But, ironically, suing larger and more well-established churches is sometimes quite difficult. I discussed some aspects of this in an article which has recently been published: Neil J Foster, “The Bathurst Diocese Decision in Australia and its Implications for the Civil Liability of Churches” (2017) 19/1 Ecclesiastical Law Journal 14 – 34. (For the earlier conference paper on which the article was based, see here.) In brief, often denominations such as the Anglican Church of Australia or the Roman Catholic Church do not have any formal “legal personality”. They usually have established Property Trusts, but in the past it has sometimes been successfully argued that such trusts only exist for the purpose of holding real estate, have no control over the actions of individual congregations or clergy, and hence cannot be sued for damages based on the actions of congregations or clergy. (In Australia this has become a significant issue in relation to historic clergy child sexual abuse claims. See Trustees of the Roman Catholic Church v Ellis & Anor [2007] NSWCA 117. It seems likely that recommendations of the current Royal Commission may lead to changes in this area in these sort of cases.)

However, in relation to personal injury claims, in either church contexts or in cases involving Roman Catholic parochial schools (which are often literally owned and controlled by the local parish priest), it is fairly common for church authorities not to rely on the Ellis doctrine, and to concede liability to allow access to relevant insurance policies.

2. Breach of statutory duty in a local church

In fact, there are a couple of cases in Australia which replicate to some extent (though not precisely) the facts of the Casson case.

In one, the closest analogy, Lenz v Trustees of the Catholic Church [2005] NSWCA 446, renovations were being carried out on a Roman Catholic church building. Mr Lenz was a retired builder, who had volunteered to help with some roofing work. He was injured when he fell from the roof. An action for breach of statutory duty (BSD) was based on the (former) Construction Safety Regs 1950 regs 73 & 74. The Court held that these regulations applied for the protection of volunteers who were involved in construction work, as well as to protect paid workers- see eg Mason P at [53], [90].

The regulations imposed an obligation on the “person carrying out” the construction work; this was held not to be the plaintiff himself, but the volunteer supervisor overseeing the renovations on behalf of the Church, a Mr Ireland (acting as an agent for the Church)- [73]. In addition one Mr Kenny, who was actively supervising the roof work, was also “carrying out” the work.

While the Church (through Mr Ireland) was “the person in charge” of the work under reg 74, Mr Kenny due to his limited role in supervising only the roof work was not caught by reg 74. Hence the Church & Mr Kenny were both held liable for the plaintiff’s injuries, though under different regulations.

Another, more recent, example of a church representative being sued for an injury in a BSD action can be found in the High Court of Australia decision in Deal v Father Pius Kodakkathanath [2016] HCA 31. This involved a teacher employed at a local Roman Catholic primary school (as noted, the parish priest was sued as her employer, though of course it seems clear that an insurance policy issued by the denomination would have covered the damages.) She had climbed up a ladder to remove some student art-work from a notice-board, and was seriously injured when she fell. The High Court examined the Victorian regulations dealing with “manual handing” in some detail (see regs 3.1.1, 3.1.2 and 3.1.3 of the Occupational Health and Safety Regulations 2007 (Vic)) and concluded that the school were liable to pay damages.

In NSW the relevant law now would be the Work Health and Safety Regulation 2011, a version of a “model law” applicable in most other jurisdictions in Australia today (Victoria and WA excepted). The relevant Act, the Work Health and Safety Act 2011, applies to “persons conducting a business or undertaking”, which under s 5(1)(b) applies “whether or not the business or undertaking is conducted for profit or gain”.

If someone fell from a ladder in a church hall in NSW, it seems possible that there might be a breach of cl 78 of the Regulation, which provides that:

78(1) A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person.

“Managing risks” under Part 3.1 involves identifying hazards and putting in place appropriate “control measures”. In addition, cl 79 also provides for specific safety precautions that may be needed in the case of someone asked to work at heights, including “fall prevention devices” if needed to ensure safety.

While there are as yet no civil cases where the provisions of the Model Regulations have been used in a BSD action, I have argued in a jointly authored article with my college Ann Apps,  “The neglected tort — Breach of statutory duty and workplace injuries under the Model Work Health and Safety Law” (2015) 28/1 Australian Journal of Labour Law 57-76, that the Model Act clearly allows such actions to be taken based on the provisions of the regulations, and I expect to see these actions become more common in the future.

Churches of all organisations should be concerned, when asking people to conduct work for them, to pay attention to the principle of “love for neighbour” and do all that they can to provide a safe working environment. The law of torts, which after all was heavily influenced in one of its major decisions, Donoghue v Stevenson [1932] AC 562, by the parable of the Good Samaritan (Luke 10:25-37), reinforces this moral obligation to care for workers and volunteers, by making it a serious legal obligation as well.



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