Carey-Schofield v Hays & Civeo [2024] QSC 60

TORTS - NEGLIGENCE - DUTY OF CARE - where the plaintiff suffered a workplace injury while employed by the first defendant and labour hired to the second defendant - where liability for injuries is disputed - where quantum of damage is disputed - whether the defendants are liable in negligence

DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - INCOME LOSS AND LOSS OF EARNING CAPACITY - GENERALLY - where the plaintiff has returned to work since the date of injury - where the plaintiff has in the past had long periods of sporadic employment - where the plaintiff cannot undertake heavy physical work - what measure of damages for past and future economic loss and Griffiths v Kerkemeyer damages - how should the damages be apportioned between defendants

Law Reform Act 1995 (Qld), s 6, s 7

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305D, s 306J, s 306M, s 306N

Workers' Compensation and Rehabilitation Regulation 2014 (Qld), sch 9

Boon v Summs of Qld Pty Ltd [2016] QCA 38

Cains v Mathers Shoes Pty Ltd [1993] QCA 193

Evans v Port of Brisbane Authority (1992) ATR 81-169

Heywood v Commercial Electrical Pty Ltd [2013] QCA 270

Higgins v William Inglis & Sons Pty Ltd (1978) 1 NSWLR 649

Hughes v Grogan & Anor [2007] QSC 046

James Thane Pty Ltd v Conrad International Hotels Corporation & Ors [1999] QCA 516

Market Form Managing Agency Ltd v Ashcroft Supa IGA Orange Pty Ltd [2020] NSWCA 36

McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60; (1984) 155 CLR 306

Meandarra Aerial Spraying Pty Ltd & Anor v GEJ Geldard Pty Ltd [2012] QCA 315

Mott v Bogan [1999] QSC 216

Paskins v Hail Creek Coal Pty Ltd (No 2) [2018] 2 Qd R 518; [2017] QSC 213

Paul v Rendell [1981] UKPC 19; (1981) 55 ALJR 371

Robinson v Fig Tree Pocket Equestrian Club Inc & Ors [2005] QCA 271

Shaw v Menzies & Anor [2011] QCA 197

Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11

Thomson v State of Queensland & Anor (No 2) [2019] QSC 115

TNT Australia Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1

S J Deaves KC and M Rothery for the first defendant

• [1] On 24 February 2019 the plaintiff, Mr Carey-Schofield, suffered personal injury in the course of his employment with the first defendant (herein after referred to as "Hays"). The plaintiff brings an action in negligence against Hays and the second defendant, Civeo Pty Ltd ("Civeo"), alleging that he was labour-hired by Hays to Civeo to perform work as directed by Civeo at Civeo's accommodation village at Dysart.
• [2] Liability and quantum are in issue and Hays have claimed contribution against Civeo under s 6 of the Law Reform Act 1995.

• [3] Exhibit 9 establishes that the plaintiff was employed on a casual basis between 15 February 2019 and 27 February 2019 to work in the position of "facilities - stores/grounds" at Civeo Dysart.
• [4] The letter of the plaintiff's engagement, Exhibit 9, informed the plaintiff "Your host employer will provide you with a site specific induction on your first day. Should this not occur, please contact me."
• [5] According to the contractor site specific induction,[1] the plaintiff was inducted on 15 February 2019 by Ms Tamika Ammer. Ms Walchsofer, the village manager of Civeo Dysart, was in charge of the 1,500 rooms and "oversee all the departments and the welfare of every staff and guest".[2] Ms Walchsofer could not state the number of facilities cleaning staff that were employed at Civeo Dysart in February 2019. According to page 80 of the additional trial bundle, Ms Walchsofer started her role at Civeo on Thursday 14 February 2019.
• [6] On 15 February 2019, a series of meetings occurred. There was first a management review meeting attended by Ms Walchsofer, Tamika Ammer, Anelin Galang, Chris Richardson, Vikki MacEarchern, Shane Krump and a person identified as Shawn (probably Shawn Lawson). The other meeting was a toolbox meeting conducted by Ms Walchsofer and Tamika Ammer, which 15 team members attended, including Vikki MacEarchern who had been at the management review meeting, and the plaintiff.
• [7] Accordingly, it would appear on 15 February 2019, there were at least 21 people working for Civeo Dysart. Of those 21 identified persons, only Ms Walchsofer and Shawn Lawson were called in the defendant's case. The identity of the person who trained the plaintiff on 15, 16, 17 and 18 February 2019 has not been established.
• [8] On 22 February 2019, Ms Walchsofer conducted a toolbox meeting. According to the attendance sheet[3] there were eleven attendees but only Ms Walchsofer and two of the attendees were called at trial (Kevin Nash and Rebecca Hudson). Shawn Lawson was not recorded as attending and the plaintiff's name is absent from the attendees list. The only name of a team member that clearly attended both the 15 February 2019 and 22 February 2019 toolbox meetings is Vikki MacEarchern. Accordingly, it appears from the second defendant's documents that there were ten different employees attending on 22 February 2019, taking the minimal total number of Civeo team members to 31 team members in the week period from 15 to 22 February 2019.

"Usually, if someone new came on, they would come out with us for a day or two just to get a - like, get their head around how we would do the operations for everything, and, you know, we'd show them how to take the bags out, put them in the ute, re-line the bin, where the bin - like - where the tr - where the ute got full, where to go to empty it all."

• [18] Rebecca Anne Hudson had worked for Civeo Dysart for four years, having commenced as a housekeeper, then transitioned to the facilities team at a date which she could not recall. Of her training, Ms Hudson said:

"When you first start with the - with the - a site, everyone gets assessed a- like - a - a buddy to go along with them to show them what to do and where to go and that sort of stuff."

• [19] Ms Hudson said when she first transferred into facilities, she buddied up with someone for the first week to do on-the-job training. Ms Hudson said she was trained to tie the bin liners up, take the bin liner out of the bin, put them immediately in the back of the ute and then go to the next one. Ms Hudson said she could not recall who her first buddy or trainer was and that she may have been buddied up with a number of people.[17]
• [20] In cross-examination, however, Ms Hudson was reminded that she had provided a written statement in late 2019 where she had asserted that she had moved into the facilities team about a week before the incident on 24 February 2019 and that her assigned buddy was Shawn Lawson. When reminded of her statement, Ms Hudson confirmed that was indeed correct and that Mr Lawson was buddied only to Ms Hudson for the first week.
• [21] The plaintiff asserted he had been trained by a male but could not recall his name, which is understandable given the plaintiff was employed at Civeo Dysart for less than two weeks. There is an absence of paperwork establishing whom of the many other male Civeo employees may have been the plaintiff's buddy or trainer.
• [22] Ms Hudson was asked whether she knew how many other persons were employed in facilities at Civeo Dysart on 24 February 2019 and she answered:[18]

"No, not exactly, because we've got a rotating roster. So we do two - our full time staff do two weeks on and one week off, so at any given time, we've got people on holidays. So we've got Kevin Nash was our supervisor and Shawn Lawson and Lino - I can't remember his last name. And then there was - so there were three full time employees plus our supervisor."

• [23] Ms Hudson must be mistaken as to who was working on 24 February 2019 as the plaintiff certainly was.
• [24] The person Lino has not been identified by any witness. What is known about Lino is that he is male. It is accordingly possible that Lino was the buddy provided to the plaintiff, however, that may not be the case, it may be another male as neither defendant is able to identify the male buddy who trained the plaintiff.
• [25] Ms Hudson was understandably uncertain as to the number of persons employed in the facilities team as she was new to the team and a lot of time has elapsed since February 2019. Furthermore as it is clear that the plaintiff was employed in the facilities team as at 24 February Ms Hudson must be in error as she excluded the plaintiff from being present to work in Civeo facilities. Importantly, in providing the evidence, Ms Hudson said she was unsure and did comment "I don't really know."[19]
• [26] Although Ms Hudson did assert that she was the only female employed in the facilities team as at 24 February 2019, that would appear to be based upon her incorrect memory and the incorrect premise that there were possibly four persons employed in facilities on that day, being the three fulltime employees she identified, Shaun Lawson, Lino and herself, as well as a supervisor, Kevin Nash.
• [27] The importance of Ms Hudson's evidence can be seen by reference to the allegations made by the plaintiff as to both his training and what occurred on the morning of 24 February 2019. The plaintiff asserted that in his first four to five days of his attendance at Civeo Dysart, he was trained by a male work buddy.
• [28] The plaintiff asserted that in respect of the task of emptying the bins, that:[20]

"...We were told to basically tie - open the lid, tie up the tops of the bags, lift them out, put them down, put the new liner in, go to the next one, and keep going on and on up until we've got to the end of the row of bins, then come back and collect them and take the bags to the ute."

• [29] The plaintiff asserted that if the bags of rubbish were too heavy: [21]

"We were told to lie them on the ground once we've tied - lie the bin on the ground, drag the bin out on its side, and then stand the bin up, put the new liner in, and yeah, put the bag in the ute, the ru - full bag of rubbish in the ute"..."Only when we were coming back."

• [30] The plaintiff then said if he couldn't then lift the bag into the ute, he was advised he should call for assistance. The plaintiff explained that his buddy had trained him to take all of the bags out before placing them in the ute so that he would save time rather than walking back and forth with each bag. There is no evidence to contradict the plaintiff's evidence as to how he was trained in the task of rubbish removal. The plaintiff's description of his training does accord with Civeo's written instructions for the task of waste and rubbish disposal.[22]
• [31] In paragraph 14(b) and 14(k) of the first defendant's written submissions, the first defendant submits that when the plaintiff was describing his training, he gave evidence in chief that he was trained to put bags straight onto the back of the utility. The submission is made with respect to the plaintiff's evidence at T1-11, Lines 6-10 and T1-13, Lines 36-40. I do not accept this submission.
• [32] The plaintiff clearly gave evidence of his four or five days of training in his first week of work at T1-10 that he was trained in an area where there were numerous wheelie bins, about eight in a line, up to 10 metres apart and that he was told to "Open the lid, tie up the tops of the bag, lift them out, put them down, put the new liner in, go to the next one, and keep going on and on up until we've got to the end of the row of bins, then come back and collect them and take the bags to the ute."[23]
• [33] The plaintiff described his training as not being behind The Hub but rather being further back behind the mess hall[24]. The plaintiff's evidence as to instruction preceded the evidence at T1-11, Lines 6-10, and importantly speaking of when the full bags of rubbish were to be placed onto the ute, the plaintiff specifically said that the bags were to be put in the rear of the utility "only when we were coming --- we were told to go empty the bins and then pick them up on the way back --- as we were coming back, so we're not walking taking one back out, going back to the ute, next one, back and forth, to save time..."[25]
• [34] I accept the plaintiff's evidence as to how he was trained. I find the plaintiff was not trained to perform rubbish disposal in accordance with Civeo's safe system of work as he was not trained to immediately place full bags of rubbish into the rear of a work utility so as to avoid trip hazards to himself and others.

• [35] Two difficult issues of fact are raised by the parties. They are whether the plaintiff had an interaction with Rebecca Hudson or some other female immediately prior to the incident and what occurred in the incident, in particular which bag did the plaintiff trip on.
• [36] The plaintiff described that the incident in which he was injured occurred around 10:30am when he was assigned to empty the wheelie bins at the back of The Hub. The Hub at Civeo Dysart was described as a pub gathering area. The plaintiff described that there were four or five wheelie bins at the rear of The Hub and that he drove his work utility to a position just behind The Hub near the wheelie bins with the tray of the utility facing The Hub.
• [37] The plaintiff described the rubbish in the wheelie bins as being heavy and full. The plaintiff said when he came to the first bin, he opened the lid, tied the bag at the top of it, but realised it was too heavy and therefore put the bin on its side. The plaintiff then asserted that he "called out" and attempted to put the bag on the back of the ute but found it was too heavy and he could not do it. The plaintiff asserted that he called out to a female who was driving past in a golf buggy. The plaintiff asserted the golf buggy was some 10-15 metres away and was being driven by a female that he could not recognise as he had only been working for a few days. The plaintiff asserted that he called out to the female driving in the golf buggy 10-15 metres away that he needed assistance with lifting heavy bags and that the female did not do anything. The plaintiff asserted that the female continued driving off in the golf cart.
• [38] The plaintiff then described that he "went back to start emptying the rest of them".[26] The plaintiff's evidence was that he got the second bag out using the same procedure as the first bag, however, after he had slid the bag out of the bin, a wasp came towards him and he said he stepped back, causing him to fall over one of the bags he had removed.[27]
• [39] The plaintiff described his tripping and falling as "bang", that is, happening very quickly and that as he fell backwards onto the ground, his left elbow struck the concrete. The plaintiff said that he could not be sure how many bags he had taken out, although he was "pretty certain it was oh - it was only one or two. Seriously, it wasn't like I did a heap of them...".

"First, in referring to her use of the words "tripped" and "slipped" the trial judge said that in ordinary language those two words describe quite different human movements. Whether that is always so may be open to question; but in any event, it is difficult to be sure that the plaintiff herself was using those words according to the precise meanings, rather than indiscriminately to mean tripped. Indeed, to say slipped over rather than the plain slipped itself tends to suggest what she meant was tripped over. [...] It is an obvious possibility that she might in ordinary language use "tripped" and "slipped" with less precision or discrimination than some other people do."

• [66] Accordingly, although I do accept there is some inconsistencies in the versions provided by the plaintiff, I consider there is general consistency between the plaintiff's evidence and his solicitor's description of the accident in Exhibit 5. I accept the plaintiff's evidence as to how the incident occurred in a general sense as set out in the findings of fact below.
• [67] The first defendant raises seven matters[33] in support of an argument the plaintiff ought not be regarded as a witness of credit, or at least ought not be regarded as a reliable witness. First is the plaintiff's failure to give Dr Caniato a full history of his prior psychiatric symptoms. I accept that the plaintiff did fail to provide a full history of his prior psychiatric history to Dr Caniato, and this is not to his credit.
• [68] The second issue relates to paragraph 16 of his quantum statement and repeated to Dr Caniato where the plaintiff asserted he had no problems with police since he moved to Queensland, whereas there was an incident on 22 July 2017 when the plaintiff suffered a right shoulder injury when handcuffed by police and a struggle ensued. That related to a mental health issue suffered by the plaintiff. I accept that the plaintiff's evidence in this regard was incorrect and that is again against his credit.
• [69] The third matter was the plaintiff's use of medicinal cannabis. The plaintiff had asserted that he could produce evidence in court of his prescriptions for medicinal cannabis which were said to be in his hotel room, however, the plaintiff did not attempt to provide that evidence in court.
• [70] The fourth matter also concerns consumption of cannabis with the plaintiff pleading in his reply that he had ceased consumption in March 2018 conflicts with his admission to the staff at Mackay Base Hospital following the incident that he smoked cannabis occasionally. Again, that does not assist the plaintiff and is a matter against his credit.
• [71] The fifth matter relied on by the first defendant is his interaction with a female co-worker being irreconcilable with his statutory declaration. As discussed below, I do accept what is stated in the statutory declaration and accordingly, it seems to me that it is a matter against the plaintiff's reliability.
• [72] The sixth matter is the ownership of the property at Millmerran. The plaintiff asserted it had been purchased by his mother and step-father, whereas Exhibit 22 shows the plaintiff in fact owns the property free from any registered encumbrance. The plaintiff's mother, however, was called and did confirm that she and her husband did provide the plaintiff with $250,000 to purchase the property and there was an unregistered agreement the plaintiff would repay the $250,000 from the proceeds of the sale if he ever sold it. I do not consider that is a matter against the plaintiff's credit, although his evidence differed from the true position, as it seems the property was entirely or mostly financed by the plaintiff's mother and step-father.

• [90] In Exhibit 5, the plaintiff has nominated Bag 3 as the bag that he tripped upon. An important feature of Exhibit 16 is that bins 1, 2 and 3 have been completely emptied, re-lined, and stood up with their lids closed. Bin 4 shows that it has been stood up, however the bin liner is hanging over the lefthand top of the bin cavity with the lid being fully open.
• [91] I am also conscious that in paragraph 1 of Exhibit 5, the plaintiff's version of 7 April 2021, was "when he moved back in his interaction with the wasp his left foot caught the bottom of the bin bag he had pulled out earlier, which caused him to fall." Given the height of the bin at approximately 1.4 metres and therefore the likely height of the bag at something similar, as explained by the plaintiff in his evidence, Exhibit 16 appears to show that the fourth bin liner had been removed from the fourth bin and placed upon the ground.
• [92] Although the plaintiff, whilst being cross-examined, thought that he'd taken two or three bags out of the bins, it seems to me more likely than not on the basis of Exhibit 16 that he had in fact taken out four bags. I reject the plaintiff's evidence at T1-55, Line 45, that all four bags were not out of the bins.
• [93] There is a consistent version from the plaintiff that after the wasp flew out of the bin, it startled him causing him to take a step backwards. As can be shown from Exhibit 16, the only bin that a wasp could have flown out of is Bin 4. Given that Bin 4 is standing vertically it seems to me that the wasp must have flown out after the plaintiff had re-stood the bin and placed the bin liner on the top left-hand corner of the bin.
• [94] If bin 4 were to be laid upon the concrete as the plaintiff said it was, even after the plaintiff had returned the bin to its standing height, it seems to me that the plaintiff's evidence is credible that when the wasp came towards him he stepped backwards. It seems to me it is also credible that if the plaintiff stepped backwards, his left foot, as explained in Exhibit 5 paragraph 1, came into contact with Bag 3, as also indicated upon Exhibit 5, causing the plaintiff to fall towards his left, and upon his left elbow. It is possible but unnecessary to decide if the deformity to Bag 4 was caused by a part of the plaintiff's body striking Bag 4.
• [95] The plaintiff has been asked many times by many different persons as to what occurred in the incident, and whilst there are minor differences, it seems to me that the basic version of emptying bins, placing bags upon the ground, a wasp coming towards him from a bin he emptied, and him stepping back and falling after tripping on a bag is a sufficiently consistent version of the incident that I consider to be truthful and accurate.

(a) The plaintiff was a casual employee of the first defendant, labour-hired to the second defendant to work from 15 February 2019 to 27 February 2019 at Civeo Dysart.

(b) The plaintiff was employed to perform work in the facilities section of Civeo Dysart, performing stores and grounds duties.

(c) After a generic induction at the Civeo site, the plaintiff was placed with a male work buddy who provided practical demonstration as to the method that the plaintiff was required to carry out his duties.

(d) In respect of the task of rubbish removal, the plaintiff was instructed by his male trainer buddy to drive a work utility to the area where the bins were located, attend at a bin, open the lid of the bin, tie the top of the garbage liner, lift the garbage liner out of the bin and put it down on the ground, put the new liner in the bin and then go to the next available bin until each of the bin liners have been removed. The plaintiff was then instructed to collect the bags and take them and lift them into the back of the utility.

(e) The plaintiff was further instructed that if the full bin liners were too heavy to lift, he ought to lie the wheelie bin on the ground and then drag the bin liner full of garbage out on its side, then stand the bin up and put the new bin liner in the wheelie bin. The plaintiff was further instructed that if he was unable to lift the garbage bin liner full of rubbish from the ground to the tray of the work utility, he ought to call for assistance.

(f) The plaintiff was instructed to remove garbage bin liners full of garbage from behind The Hub prior to 10:30am on 24 February 2019.

(g) The plaintiff attended to the four wheelie bins at the back of The Hub, as shown in Exhibit 16, and after opening the first wheelie bin, he realised that the bags were too heavy and that he would need assistance to lift the bags. Soon after the plaintiff observed a female co-worker, not Ms Hudson, driving a small Civeo buggy (similar to a golf cart with a tray), approximately 10-15 metres away who, as set out in Paragraph 7 of Exhibit 6, came to his assistance, tried to lift a bag up and said words to the effect "These are heavy. We'll pick them up on the way back."

(h) The plaintiff continued his work as he'd been trained to do, by removing the garbage bin liners from the three remaining wheelie bins and leaving them on the ground in a position as indicated in Exhibit 16.

• [101] The parties agree that the first defendant owed the plaintiff a non-delegable duty of care to take precautions against risk of injury that was foreseeable and not insignificant. The second defendant held essentially the same duty of care.
• [102] The defendants argue[40] that the risk of a plaintiff tripping on a bag which he had only just and temporarily placed upon the ground was not a risk which could reasonably be considered to be a significant risk such that the plaintiff's claim ought to fail.
• [103] Underlying this argument is the defendants assert that the plaintiff has failed to frame the risk in a proper way such that the plaintiff has stated the risk at too great a level of generality as the plaintiff's formulation of risk failed to incorporate what was fundamental to the occurrence of the incident, that is the plaintiff's sudden movement to avoid the wasp without regard to his surroundings.[41] On behalf of Civeo it is argued[42] that the risk ought to be defined with respect to the presence of the wasp causing a worker to have a fright by reference to an analogy of a worker placing a toolbox down, being frightened by a wasp and tripping over his own toolbox. That, however, to my mind, is not analogous at all. It has to be recalled that Civeo has 1,500 rooms at its complex in Dysart, and the evidence is there are numerous 240L wheelie bins throughout that large complex which are emptied twice a week. Emptying garbage bags was a frequent task, which is performed in the manner in which the plaintiff was trained, that is by leaving garbage bags all about the place, would create hundreds of potential tripping risks and as Mr Lawson correctly identified, the risk being to the person moving the garbage bag or to another person.
• [104] On behalf of the plaintiff, the risk was defined as the risk of suffering personal injury by tripping over bags of rubbish that had been emptied onto the ground from several 240L wheelie bins before transferring them into a work vehicle.
• [105] In Tapp v Australian Bushman's Campdraft & Rodeo Association Limited [2022] HCA 11 at [106] the plurality said:

"The proper assessment of the alleged breach of duty depends on "the correct identification of the relevant risk of injury", because it is only then that an assessment can take place of what a reasonable response to that risk would be. The enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages. The characterisation of the relevant risk should not obscure the true source of the potential injury." [footnotes omitted]

• [106] In Boon v Summs of Qld Pty Ltd [2016] QCA 38, Gotterson JA with whom Homles CJ and Applegarth J agreed, said:

"[27] The appellant's principal challenge to the analysis of risk is centred upon the learned trial judge's statement at paragraph 74 of the Reasons that the appellant had failed to establish that a reasonable person in Mr Summerfeldt's position would have foreseen that using a sharp knife to peel an orange during lunch would have involved a risk of injury to persons nearby, including the appellant. The appellant submits that the adoption of the peeling of an orange with a sharp knife as the relevant frame of factual reference for risk analysis was wrong and led to an erroneous conclusion with respect to breach of duty.

[28] In Roads and Traffic Authority (NSW) v Dederer, Gummow J, with whom Hayne J agreed, stressed the importance of the correct identification of actual risk to the assessment of breach of duty. His Honour observed that it is only through the correct identification of risk that one can assess what the reasonable response to the risk would be.

[29] The guidance given by Gummow J in Dederer requires a precise identification here of what it was that exposed the appellant to risk of injury. To my mind, it clearly was the conduct of Mr Summerfeldt in rising from a crouched position with a knife in his hand, the knife having a long, sharp blade which was unsheathed. The risk of injury to the appellant arose because, as Mr Summerfeldt was moving to an upright stance, the blade might have struck a passer-by such as the appellant.

[30] I am unable to agree with her Honour that the relevant conduct on Mr Summerfeldt's part was using the knife to peel an orange. The mere actions involved in peeling the orange with the knife did not expose the appellant to any relevant risk.

[31] Once the appropriate risk is identified, the inescapable conclusions are that there was a foreseeable risk that a passer-by such as the appellant might have been struck by the blade of the knife; that Mr Summerfeldt ought reasonably to have known, at least, of that risk; and that the risk was not an insignificant one. The last conclusion is fortified by the admitted fact that the location where the incident occurred was frequently traversed by workers." [footnotes omitted]

• [107] In the present case, the presence of the wasp as it approached the plaintiff and in fact stung him on the left wrist is not, in my view, the event which exposed the appellant to the relevant risk, nor is the action of the plaintiff walking backwards away from the wasp the relevant risk. The relevant risk was the risk of tripping on the garbage bags. Absent the garbage bags as a trip hazard, the plaintiff would not have tripped. I accept the submission that the risk of injury to the plaintiff arose as a result of the placing of the garbage bags on the ground in his workspace. This risk was expressly acknowledged by Mr Lawson. The reason for the immediate placing of the garbage bags into the back of the ute was to seek to prevent a tripping hazard both to the person who placed the bag on the ground and to other workers.
• [108] Furthermore, as set out in the evidence of Ms Walchsofer and Mr Nash, the senior employees of Civeo, expressly acknowledged that placing garbage bags on the ground would create a trip hazard. In terms of section 305B of the Workers' Compensation and Rehabilitation Act 2003, the resulted injury was foreseeable and not insignificant as against Hays and under common law as against Civeo.[43]
• [109] By Paragraph 14(b) and (k) of the further amended statement of claim the plaintiff alleges that the defendants breached their duty of care to the plaintiff by failing to provide the plaintiff with any or any adequate manual handling assistance in the form of mechanical assistance (a bin lifter) or additional workers to assist in the completion of the task.
• [110] In this regard, it is to be recalled it was Mr Nash's firm evidence that another worker was to be provided for this task and that it was not the case when the plaintiff was injured. It seems to me therefore that it is correct to accept that the incident could have been avoided entirely if a system of work had been implemented which would have prevented rubbish bags being left as trip hazards upon the ground and that, in my view, could easily have been achieved, as alleged in Paragraph 14(b) and (k) of the amended statement of claim by the provision of an additional worker or by a mechanical lifting device. It seems to me therefore that the allegation at 14(b) and (k) has been proven by the plaintiff.

• [119] After his fall, the plaintiff was taken first to the Dysart Hospital and then transferred to Moranbah Hospital and then by air to the Mackay Base Hospital. X-rays showed the plaintiff had suffered from a comminuted intraarticular fracture of the left distal humerus with displacement. The plaintiff was taken to theatre. The loose bone fragments were removed and an operative reduction and internal fixation of the left distal humeral fracture was undertaken by Dr Wainwright.
• [120] The plaintiff's arm was placed in a splint until there was progressive union of the bones. The plaintiff had limited movement of his left elbow and so he received physiotherapy treatment.
• [121] The plaintiff had numerous difficulties and could not drive a car. The internal fixation was removed from the plaintiff's left elbow in August 2019, however, that did not alter the function of the left elbow and the plaintiff was left with significant limitation in range of movement of the left elbow. As MRI studies had shown synovitis and post-traumatic degenerative change, Dr Rhau performed a synovectomy, ostectomy, debridement and capsular release. The plaintiff then underwent intensive therapy and this had the effect of improving his range of motion. The plaintiff was then able to drive an automatic motor vehicle with a steering ball.
• [122] When examined by Dr Boys on 20 June 2022, the plaintiff presented with a left elbow deformity and muscular wasting of the left arm. Dr Boys noted a fifty-five degree fixed flexion deformity of the left elbow. Dr Boys opines that the plaintiff will suffer from post-traumatic osteoarthritis in his left elbow with capsular contracture and that he has a poor prognosis. Dr Boys is of the opinion that radiological evidence shows post-traumatic degenerative change and that would likely be ongoing. Dr Boys opines a 7% whole person impairment with an additional 1% whole person impairment for post-surgical scarring. Dr Boys has explained that the injury has affected the articular surface of the left elbow joint and degenerative change is a natural progression from such injury. Dr Boys considered it fair to describe the injury as a bad injury. Dr Boys' occupational prognosis is that the plaintiff is restricted to light semi-skilled employment. Dr Boys was asked to comment upon the plaintiff's current work position in March 2024, which required occasional heavy lifting. Dr Boys' opinion is that the plaintiff's ability to perform that work with occasional heavy lifting depended upon whether or not the plaintiff could manage the pain that he sustained from such tasks, and if the pain became too much he would need to cease. I accept Dr Boys' well-reasoned opinions.

• [127] The acceptance of Dr Boys' opinion in my view places the plaintiff's injury in an Item 101 serious elbow injury within Sch 9 of the Workers' Compensation and Rehabilitation Regulation 2014. In my view, the injury requiring, as it did, three surgical procedures and with a fracture into the intraarticular surface of the left elbow results in the injury being properly viewed as a serious fracture with secondary arthritis. The plaintiff has a permanent poor restriction in range of motion. This, in my view, squarely meets within the descriptors in Item 101.
• [128] On behalf of the defendants it is argued that the injury ought to be an Item 102 moderate elbow injury. It is true that the plaintiff's injuries are a fracture but I do not consider that the plaintiff has made a reasonable recovery. The plaintiff has required an open reduction and internal fixation, however, he required 2 more surgical procedures, which in my view is protracted. The plaintiff does not have good function in his left arm. The plaintiff's prognosis is poor with the likelihood of ongoing and increasing degeneration in the left elbow joint. Although Dr Boys' assessment of permanent impairment at 8% falls within an Item 102, it does seem to me that with three bouts of surgery, the protracted rehabilitation, the ongoing pain and suffering and the likelihood of further degeneration, the injury ought to be quantified as an Item 101 serious elbow injury.
• [129] The plaintiff's adjustment disorder is properly quantified as an Item 12 moderate mental disorder with an ISV range of 2 to 10. As the elbow injury would be towards the bottom half of an Item 101 serious elbow injury, it seems to me that although this is a case of multiple injuries, the ISV range of 13 to 25 is adequate to compensate the plaintiff for the injuries that he sustained as a result of the accident. In my view, accepting Dr Boys' opinion, the elbow injury is in the middle of the range of Item 101 and with the addition of the moderate mental disorder, I consider that the plaintiff's injuries are properly assessed at an ISV of 20 which quantifies general damages at $37,950.

• [134] The plaintiff's case is that having obtained work at Civeo Dysart, he had his "foot in the door" into the mining industry and was intent on pursuing a career as a miner. If he had been successful that means he would have earned sums in the vicinity of $2,000 nett per week (npw). The plaintiff, however, had never worked in the mining industry and nor is there any evidence capable of showing that the plaintiff had a reasonable prospect of obtaining work in the mining industry. It seems to me therefore that the plaintiff's economic loss ought to be assessed on the basis of his past average and current earnings, allowing for the positive vicissitudes of a chance of obtaining work in the mining industry balanced by his long term history of short term employment and his long standing dysthymic disorder, which are negative vicissitudes.
• [135] Schedule ASC2 to Exhibit 2 the plaintiff's quantum statement shows his nett income from employment in the 2016 financial year at $22,581 or $434 per week. The plaintiff's nett earnings from employment in 2017 were $13,515 or an average of $260 per week. In the 2018 financial year, the plaintiff's nett earnings from employment were $9,211 or $177 per week. In the 32 weeks of the 2019 financial year prior to the plaintiff being injured, the plaintiff earned $20,345 from the Seymour Family Trust performing hydroblasting and a further $5,000 nett from the first defendant performing labouring duties, a total of $25,345 or an average of $792 per week.
• [136] The plaintiff was then unemployed from the time of the accident until he found employment on 22 January 2024 for Agtronics Goondiwindi Pty Ltd working as a production welder earning $5,427 nett to 28 March 2024.
• [137] The plaintiff's payslips for the week ending 20 February 2024 shows his nett earnings at $838 per week for 31.25 hours. The plaintiff's payslip for the week ending 28 February 2024 shows a net earnings of $817 for 30.25 hours. The plaintiff's current earnings of approximately $800 per week is similar to his 2019 pre-accident earnings and accordingly it seems to me reasonable to quantify the plaintiff's economic capacity from the date of the accident until January 2024 at the rate of $800 npw. I am conscious this far exceeds his 2016, 2017 and 2018 average, however, the plaintiff had moved to Mackay in search of higher-paying employment and had in fact obtained that employment. The plaintiff was, as pointed out by Dr Varghese, in a good mental state and he had hope and prospects for his future.

• [143] Quantification of loss of economic capacity in the future is a most imprecise exercise in the art of double prophesying[49]. As noted above I reject the basis for the quantification of economic loss that the plaintiff would have obtained work as a coal miner. As the plaintiff has obtained work earning approximately $817 to $830 per week for 30.25 to 31.25 hours, it is reasonable to affix his economic capacity for the future at $840 npw.
• [144] It seems to me in the present case that the positive vicissitudes, namely the plaintiff's determination and success in finding employment despite his disabilities and the fact that the plaintiff had a chance of obtaining employment in the mining industry are almost evenly counter-balanced by the negative vicissitudes, namely his long term employment history and his dysthymia. In view of the plaintiffs poor work history prior to 2019, I consider a 10% discount for general vicissitudes is appropriate.
• [145] The defendants made an attack upon the plaintiff's economic capacity based upon his musical preferences. I had the misfortune of having to listen to two of the plaintiff's "songs" during evidence. The genre is described as some form of death metal. I was subjected to listening to two of the plaintiff's songs, the first being a song entitled "Raped Back to Life". The music was far from pleasant and the lyrics were truly horrendous. Prior to playing the first of the songs, the plaintiff volunteered "Be warned, it's a little offensive, guys." The music was described by senior counsel for the second respondent as "Some of the most horrific misogynistic lyrics you can imagine." That description is an understatement.
• [146] In any event, the defendants wish to argue that as the plaintiff had an open Facebook page, employers could discover his horrific, violent, misogynistic lyrics and therefore decline to employ him. The plaintiff did say that he would not share his music with any co-worker. The plaintiff thought that he had published his "music" on a private Facebook page and that it would not be publicly viewable. The plaintiff explained in respect of his music that people ought not to take it seriously and if the person did, they were taking it completely the wrong way around, and that his lyrics were just "horror stories".[50]
• [147] In the present case, although the plaintiff had published on his Facebook page a form of music which was extremely violent and misogynistic, I accept his evidence that he would not share that "music" with work colleagues. Although theoretically, employers could make searches upon their employees' music choices, there is no evidence to support the proposition that that would occur.

• [151] The plaintiff cannot claim damages for domestic assistance against his employer the first defendant,[54] but he can claim damages against the second defendant. As recorded above, after the plaintiff's first surgery of 27 February 2019, he had significant limitation of movement in his left elbow. Despite internal fixation devices being removed in August 2019, he required the third bout of surgery on 21 February 2020 which did improve his symptoms and range of movement.
• [152] It is plain in the period from the accident on 24 February 2019 to after February 2020, the plaintiff required considerable domestic assistance as he was essentially only able to use one arm.
• [153] The plaintiff commenced a relationship with Ms Nicole Tilly in late 2019 and the plaintiff and Ms Tilly became de facto partners in February 2020 when she moved into his residence in Mackay. As Ms Tilly described, prior to and from the operation of 21 February 2020, the plaintiff could not perform his general home duties. She described that the laundry had not been done, the dishes had not been done and the sweeping had not been done. When Ms Tilly moved in in February 2020, she started performing these types of household duties.
• [154] According to Ms Tilly's evidence, she moved in with the plaintiff at the time that he had his last surgery on 21 February 2020. Ms Tilly's evidence was that in the first 6 months post-surgery, the plaintiff needed assistance in personal care for about an hour per day. The total of that post-surgical care is 182 hours (26 weeks x 7 hours per week). I accept this care was provided, was necessary and arose as a result of need for care caused by the accident.
• [155] Ms Tilly also gave convincing evidence of the poor state of the plaintiff's unit due to the fact that he could not perform cooking or cleaning and so it fell on Ms Tilly to perform an initial clean of the plaintiff's unit in Mackay. Ms Tilly says that she spent approximately three hours per day for two weeks performing laundry (42 hours) and then spent a full day cleaning the kitchen and a full day cleaning the balance of the house (a further 16 hours), a total of 58 hours.
• [156] After that initial two week period from about early March 2020 until the plaintiff and Ms Tilly moved to Millmerran in October 2021, Ms Tilly's evidence is that she performed about 5.5 hours per week domestic assistance, being an hour for laundry per week, half an hour to an hour kitchen duties per day (quantified at a minimum of 3.5 hours per week), a further hour per week cleaning the unit making a totally of 5.5 hours per week for about 20 months, the total of this element of care being 456 hours (5.5 hours per week for 83 weeks).

"[74] The meaning to be attributed to gratuitous services in the legislation is its meaning at common law. In CSR Ltd v Eddy Gleeson CJ, Gummow and Heydon JJ discussing generally the development of the law in Australia on the recovery as damages of the provision of gratuitous care to an injured plaintiff, confirmed that:

... in a claim for personal injury the plaintiff was entitled to recover an amount equivalent to the commercial cost of nursing and domestic services which had been provided in the past and would be provided in the future by the family or friends of the plaintiff.

... the true basis of the claim was the need of the plaintiff for the services; that the plaintiff did not have to show that the need was or might be productive of financial loss; and that the plaintiff's damages were not to be determined by reference to the actual cost to the plaintiff of having the services provided or by reference to the income foregone by the provider, but by reference to the cost of providing those services generally in the market.27

However, the Griffiths v Kerkemeyer line of cases does not turn on a "post-accident" or an "accident-created need" in the abstract. In Van Gervan v Fenton Mason CJ, Toohey and McHugh JJ said: "the true basis of a Griffiths v Kerkemeyer claim is the need of the plaintiff for those services provided for him or her". That passage was concurred with by Brennan J and quoted with approval by Gaudron J. When later in their judgment Mason CJ, Toohey and McHugh JJ referred to "need", it was to "need" in that sense. Thus they immediately thereafter asserted the proposition that "it is the need for the services which gives the plaintiff the right to an award for damages". They reiterated it later when they spoke of "the services required by the injured person" and "the services which the plaintiff reasonably needs". Although Dawson J did not agree with the majority's approach in Van Gervan v Fenton, he accepted in Kars v Kars that the basis of Griffiths v Kerkemeyer was that a "plaintiff receives the value of services voluntarily provided by way of damages as compensation for the loss suffered by reason of the injuries which manifest itself in the form of a need for those services", and what was in issue was "the voluntary provision of services to a plaintiff". The majority in Kars v Kars (Toohey, McHugh, Gummow and Kirby JJ) described the principle as permitting recovery of damages "in respect of the cost to a family member of fulfilling the natural obligations to attend to the injuries and disabilities caused to the plaintiff by the tort." ...

[76] Mr Williams submitted that the trial judge was correct to reject Ms Stephenson's evidence because she did not differentiate between domestic activity for the whole family and assistance to the plaintiff in respect of the tasks for which damages were claimed. That is not correct, as the passages from the trial transcript, set out above, make plain. Mr Williams was also concerned that Ms Stephenson took a commercial approach to the care needed by the plaintiff rather than dissecting this particular family, working out the hours devoted to him alone as best that might be achieved, and applying a commercial rate to those hours.

[77] While it is true that it will be necessary to assess the needs of a plaintiff in the context of his own situation, nonetheless, in regarding the injured plaintiff as an isolated unit whose injuries generate a need for services to him, the approach in Van Gervan v Fenton, confirmed in CSR v Eddy, is by reference to the cost of providing those services generally in the market. It would not, therefore, appear consistent with that authority to argue that in a family context a shorter period of time would (or should) be devoted to a plaintiff's needs when consideration is being given to group tasks than the market cost of servicing those needs. Sensibly that assessment must be done on the basis of satisfying those needs as a single unit. This must be so, even more compellingly, when considering future care. Families break down, illness in a partner might intervene, children's needs change and so on. There was a tendency, evident on the appeal, of substituting the lawyers' personal understanding (or, more accurately, lack of understanding) about domestic tasks, rather than to defer to an acknowledged expert in the area. There was no sound reason advanced to depart from the model proposed by Ms Stephenson." [footnotes omitted]

• [162] As explained by the Court of Appeal at [77] it is a matter of assessing the reasonable needs of the plaintiff in the context of his own situation. For example, to deploy the analogy repeated on behalf of the second defendant, Civeo, if the plaintiff was to have sausages for a meal and as a result of his accident-related injuries, he could not cook those sausages, that needs to be assessed on the basis of the commercial cost of providing the services of cooking the sausages. As it takes just as long to cook two sausages as six sausages, the care provided to the plaintiff is not to be artificially reduced by two-thirds on the basis that four of the sausages would go to other members of the family. The real issue is to determine whether the plaintiff does or does not reasonably need assistance in cooking the sausages. Accordingly, for the period in Millmerran from October 2021 to March 2024, I accept Ms Tilly's evidence that she did in fact provide approximately 22 hours' care per week.
• [163] The fact that such care was provided does not automatically establish that care was reasonably needed by the plaintiff. Many other matters come into any particular family dynamic and in the present case, at least since January 2024, the plaintiff has been performing moderately heavy work for 30-35 hours per week, plus driving for in excess of three hours each work day, which, of itself, may make it more than reasonable that Ms Tilly would perform the lion's share of the household chores. That is not necessarily an accident-related need, but a family-related circumstance.
• [164] In terms of the domestic assistance in fact provided by Ms Tilly it seems to be that the assistance of one hour per week hanging clothes is an accident-related need. Furthermore, as Ms Tilly described, the plaintiff could not perform sweeping or mopping or household cleaning chores in a satisfactory sense due to the lack of use of his left arm. It seems to me that the accident-related need ought to include a need for cleaning.
• [165] The defendant CIVEO argues, that as the plaintiff has demonstrated since January 2024 he can work as a production welder constructing agriculture equipment, then he is capable of performing household chores and has been for quite some time. I accept the CIVEOs' argument in this regard but consider that Ms Tilly has made a fair allowance for the household chores that the plaintiff in fact performs. For example, in respect of washing clothes, Ms Tilly considered that since they've been in Millmerran the plaintiff's condition has improved such that he can put clothes in and out of the washing machine but he cannot hang them out, so the assistance is limited to hanging out the clothes at about an hour a week.

• [171] By Paragraph 53 of the further amended statement of claim the plaintiff pleads a claim for future domestic assistance in the sum of $361,543.23, based on seven hours' assistance per week plus some additional matters. In paragraph 222 of the plaintiff's written submissions, the plaintiff claims

"222. Future loss is claimed at a rate of 10 hours per week based on a share of the day-to-day activities (3 hours) and a further 7 hours for maintenance of the property at $44.25 per hour for 38 years (1,192) less a discount of 30% being a sum of $369,222."

• [172] The discount rate deployed for future domestic assistance is based upon the 3% tables, which at common law is correct.[55]
• [173] As Dr Boys has pointed out, there is much uncertainty with respect to the function of his left arm. What is certain is the plaintiff will suffer from increased degeneration in his left elbow joint and that may cause him increasing pain or alternatively his elbow joint might become more restricted which may make it more difficult for him to perform some chores, but will decrease the pain that he suffers. In view of the need to prognosticate damages over the balance of the plaintiff's lifespan of some 38 years, there is much uncertainty which attends to the task of quantification of future domestic assistance.
• [174] As stated above, in respect of employment, I think it likely the plaintiff will be unable to continue in his current employment in the long term such that he will alter employment to find some employment with lighter tasks. I further consider it is likely the plaintiff in and out of employment in the future, as a result of his left elbow injury. In the time the plaintiff is out of employment, he will have sufficiently additional time to modify the tasks required of many of the household cooking and domestic chores, time that he would not have if he were working. Accordingly, it seems to me that a proper basis for quantification of damages for future domestic assistance is to allow the plaintiff a loss of 5 hours per week assistance at $44.25 per hour for 38 years, 3% discount factor 1,192, and deduct some 50% from that sum to reflect the periods when the plaintiff is out of employment and likely to be able to modify his tasks to perform the vast majority of domestic chores. Accordingly, I quantify future domestic assistance at $131,865 (5 hours per week at $44.25 x 1,192 less 50%).

• [175] The plaintiff has provided a schedule of special damages totalling $864.80 which was not challenged.
• [176] The travel expenses of $425 will bear interest. The other items of special damages contained in the WorkCover payment recovery histories report show that WorkCover has paid $90,417.28 in special damages.
• [177] Fox v Wood damages are $3,352.

• [178] The parties agree that 10% ought to be allowed for loss of past superannuation benefits. As the future, the plaintiff submits the appropriate rate is 11.78% which is the rule of thumb approach.[56] The Defendant argues the rate ought to be 11.4%. I accept the plaintiffs submissions as it reflects the accepted rule of thumb approach.

• [179] Although Ms Howard, the occupational therapist suggests an ongoing need for aides and equipment, it seems to me that the plaintiff has demonstrated that he does not require aides and equipment. The plaintiff already has his vehicle modified. The plaintiff, it would appear, has not attended upon a medical practitioner for some years, however, as the prognosis is for ongoing degeneration, it appears likely that he may require some medical assistance in the future. It seems to me a small global sum of $7,500 ought to be allowed for all future medical expenses.
• [180] In summary, I quantify Mr Carey-Schofield's award as follows:

$56,696[59] x 1.995% x 5 years (first defendant) & at 5% for 5 years (second defendant)

Interest on past domestic assistance @ 2% for 5 years

$424 x 3.96% for 5 years (first defendant) & at 5% for 5 years (second defendant)

• [181] Section 6(c) and s 7 of the Law Reform Act 1995 provide as follows:

"6 Proceedings against, and contribution between, joint and several tortfeasors

Where damage is suffered by any person as a result of a tort (whether a crime or not) the following apply -

(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.

1. Amount of contribution and power of the court

In any proceedings for contribution under this division the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity."

• [182] Civeo submits that a just and equitable apportionment is that it should foot 75% responsibility and Hays 25% responsibility, relying on TNT Australia Ltd v Christie.[61] On behalf of Hays it is submitted that it should bear no apportionment, with one hundred per cent being apportioned to Civeo. Hays supports its submission by reference to the facts in Market Form Managing Agency Ltd v Ashcroft Supa IGA Orange Pty Ltd [2020] NSWCA 36.
• [183] The apportionment between defendants proceeds by reference to the extent to which each defendant's misconduct contributed to the damage suffered by the plaintiff and the comparative culpability of the defendants[62].
• [184] In James Thane Pty Ltd v Conrad International Hotels Corporation & Ors [1999] QCA 516, Thomas JA referred to two decisions where a complete indemnity, or a one hundred per cent finding against one defendant had occurred. At [17] Thomas JA referred to the New South Wales Court of Appeal decision in Higgins v William Inglis & Sons Pty Ltd (1978) 1 NSWLR 649. In that case, the plaintiff had been injured by a dangerous bull at a bull sale. The owner of the dangerous bull was held liable to the plaintiff, as was the auctioneer for the sale. Liability of the owner was based upon the owner's non-delegable absolute duty of care as the owner of a bull who was aware of the bull's dangerous propensities, however, the owner was not guilty of any actual fault when the plaintiff was injured as the owner's son, when making delivery of the bull, had made a full disclosure of its dangerous tendencies to the auctioneer. After the owner's son had handed the bull to the auctioneer with full disclosure, the owner was not in a position to exercise any control over the bull. In those circumstances, the auctioneer was ordered to provide a full indemnity to the owner of the bull.
• [185] Thomas JA also referred to his own decision in where liability was apportioned one hundred per cent against the active tortfeasor, the Port of Brisbane, and zero per cent against the employer. Thomas JA pointed out that the Port of Brisbane had exercised effective control of the worksite and workers upon the worksite at the Port of Brisbane and that the employer could not exercise control over its own employees.

"When a comparison is made however between this failure to act more intrusively in a situation essentially controlled by others and the conduct of those others which actually led to the unfortunate accident, the apportionment must reflect a very substantial difference."

• [189] Williams J said at [43]-[46] as follows:

"[43] Having regard to all the findings and the whole of the evidence it is clear that the active negligence was on the part of Conrad and those for whom it was responsible. Any contributory negligence on the part of Thane was predicated on the fact that it failed to fulfil its obligation to ensure that the equipment was safe for use by its employees. The finding against Thane is effectively that it assumed that Conrad had rendered the lifting apparatus safe and that it should have taken more steps to ensure that such was in fact the case.

[44] Counsel for Thane relied heavily on the reasoning of Thomas J in Evans v Port of Brisbane Authority & Ors (1992) Aust Torts Reports 81-169. On the facts in that case it was held that the employer of the injured plaintiff should recover 100 per cent contribution from the active tortfeasors. It is not necessary to refer to the facts of that case in detail. There is no doubt as to the correctness of the decision of Thomas J on the facts then before him. But the facts here are not identical. Here were clear known dangers associated with the use of the trapeze apparatus and those dangers were, or should have been, clearly appreciated by Thane and those for whom it was responsible. In the circumstances they were not entitled to abrogate their responsibility by saying they trusted and believed in Conrad's employees. In hindsight it is obvious that simple checks would have revealed at an early stage at least some of the defects which were found to have contributed to the incident.

[45] However, the findings make it clear that Conrad was responsible for the construction, operation and maintenance of the apparatus and it was the negligence of Venker and Bowker, particularly the latter, which was the immediate cause of the accident.

[46] Given all the findings by the learned trial judge I have come to the conclusion that an apportionment of 30 per cent cannot be supported. However, as noted above Thane remained liable to some extent because of its failure to carry out an inspection which would have revealed defects in the system. In the circumstances an apportionment of 90 per cent against Conrad and 10 per cent against Thane more accurately reflects responsibility for the negligence as found."

• [190] As Thane was a theatre production company and had no mechanical, engineering or construction expertise in the installation of a flying trapeze, it had engaged appropriately-qualified external consults (Key Lago) to act on its behalf. The task involved, namely the installation and utilisation of flying trapeze, may be fairly described as a complicated mechanical task calling for expertise. The position and facts in the present case are not of that nature. Nor is there any suggestion, similar to Evans v Ports of Brisbane Authority, that Hays were not provided unlimited access to the Civeo Dysart; the evidence is to the contrary - that they did visit as from time to time and perform checks upon the work being performed by Hays employees at Civeo Dysart.
• [191] Fundamentally, however, the task involved in which the plaintiff was injured was not an overly complicated task such that there can be no suggestion that Hays needed to deploy any external expert advice to assist it in discharging its non-delegable duties to its employee, the plaintiff. There is no specific evidence that Mr Corrie was aware of Civeo's safe system of work for garbage disposal and, in particular to avoid trip hazards by having garbage bags removed immediately from the 240L wheelie bins and placed directly into the rear of the utility. Mr Corrie did go through Civeo's paper based system.[63]
• [192] What must have been plain to Mr Corrie however was that there were a great many 240L wheelie bins in the 1,500 room Dysart Civeo facility, with a small facilities team, tasked to empty those bins, such that the task of removal of rubbish would have been required to be performed at a rapid pace. If Hays had reviewed the risks assessments undertaken by Civeo in respect of waste and rubbish disposal, it would have observed, as set out in Exhibit 19 Page 45, that Civeo's system of work included the direction that if a rubbish bag was full or too heavy, the bag was to be tied at the top, the bin was to be tipped over on its side, and the bag dragged out of the bin. The direction was then to gain assistance to lift the full bag into the utility. It seems to me Civeo's documented safe work procedure did, contrary to its oral safe work system, permit full garbage bags to be placed upon the ground, which was acknowledged to create a trip hazard.

[1] Exhibit 19 Additional Trial Bundle, page 65.

[3] Exhibit 19 Page 73 additional trial bundle.

[4] Exhibit 19 Page 69 additional trial bundle.

[10] Exhibit 19, Pages 37-41, additional trial bundle.

[15] T3-38, Lines 34-35, my underlining.

[33] Paragraphs 40-50 of the first defendant's written submissions.

[40] Exhibit 28 Paragraph 81 First Defendant's Written Submissions.

[41] Exhibit 28 Paragraph 63 First Defendant's Written Submissions.

[42] Exhibit 28 Paragraph 68 First Defendant's Written Submissions.

[43] Meandarra Aerial Spraying Pty Ltd & Anor v GEJ Geldard Pty Ltd [2012] QCA 315.

[45] McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60; (1984) 155 CLR 306.

[46] Workers' Compensation and Rehabilitation Act 2003 (Qld), s 305D.

[48] [2007] QSC 46.

[49] Paul v Rendell [1981] UKPC 19; (1981) 55 ALJR 371.

[51] Workers' Compensation and Rehabilitation Act 2003 (Qld), s 306J(2).

[52] Ibid, s 306J(3).

[53] Ibid, s 306J.

[54] Workers' Compensation and Rehabilitation Act 2003 (Qld), s 306M.

[55] Mott v Bogan [1999] QSC 216.

[56] Heywood v Commercial Electrical Pty Ltd [2013] QCA 270.