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[2025] QCA 106
appellant. Extension of time and leave to appeal granted. Appeal allowed against the dismissal of the strike-out application and the associated costs order. Paragraphs 30, 30A, 31A and 32 of the second...
The Court of Appeal did not decide what the correct risk of harm was in Ms Wolfs’ injury claim. It decided that her pleading had to state that risk clearly enough for Cootharinga to know the case it had to meet. Her pleading described the events and said a risk existed, but did not identify the risk itself in a way that exposed the disagreement between the parties. That made the pleading potentially unfair and liable to delay the trial. The Court therefore struck out the relevant paragraphs but allowed Ms Wolfs to replead them. It also declined to hear a separate challenge to costs from another application because Cootharinga had not obtained the leave required for that costs-only appeal.
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2,124 words · generated 07/10/2026
Cootharinga North Queensland employed Ms Wolfs as a disability support worker. Her work involved caring for and supervising residents at one of its facilities [7]. On 3 December 2016, she drove two residents, referred to in the judgment as CMD and LNC, in a Cootharinga vehicle. After returning to the residence and parking in the garage, she went to open the front passenger door for CMD. At that time, LNC began to get out of the rear driver-side door. While Ms Wolfs’ attention was on LNC, CMD opened the front passenger door into Ms Wolfs’ knee [8].
3 cited instruments linked from this judgment.
Ms Wolfs’ pleading relied on circumstances concerning both residents, including their disabilities, behaviour and earlier incidents. It also relied on items stored in the garage and on the arrangement of the vehicle and garage, which she said affected how CMD could be moved into the residence [9]-[10]. She alleged that Cootharinga had failed to maintain suitable work systems, provide suitable vehicles, address the garage storage and conduct risk assessments under two manual-handling codes of practice. The pleading linked those alleged failures to the risk of injury and to the injury she suffered [11].
Cootharinga applied to strike out the second further amended statement of claim, or specified paragraphs of it. It argued that the pleading did not identify the risk of harm against which precautions should have been taken, and that the manual-handling material was irrelevant because no manual-handling task caused the injury [12], [17]-[18]. The District Court dismissed the application. On appeal, the Court of Appeal agreed that the plaintiff was not bound by Cootharinga’s proposed, narrower characterisation of the risk. But it also held that the pleading had to identify a risk clearly enough to reveal the actual disagreement between the parties [29]-[33].
The Court granted an extension of time and leave to appeal. It set aside the District Court’s dismissal of the strike-out application, struck out paragraphs 30, 30A, 31A and 32 with leave to replead, and made costs orders [39]. It did not decide the separate challenge to costs of Ms Wolfs’ trial-date application. That challenge was distinct and required leave that Cootharinga had not obtained [37]-[38].
The central distinction was between allowing a plaintiff latitude to formulate the risk and requiring the plaintiff to formulate it at all. The Court accepted that Cootharinga’s proposed risk, a client opening a vehicle door and injuring a worker nearby, was not automatically the correct legal characterisation. Ms Wolfs was not bound to adopt it, and the court would not be bound by it when the claim was ultimately determined [29]. This matters because a risk formulation can be too narrow if it focuses only on the precise hazard, rather than the circumstances said to have created the potential for injury [19]-[20], [30].
But flexibility about the proper formulation did not excuse the absence of a stated formulation. Paragraph 30A said there was a risk of injury associated with moving CMD from the front passenger seat into the premises. It also set out factual circumstances said to show Cootharinga’s knowledge. The Court concluded that this was not enough: the pleading did not say what the risk was in terms that exposed the competing positions [32].
The Court also considered the procedural purpose of pleadings. They must state a party’s case sufficiently clearly to give the opponent an opportunity to meet it and to define the issues for trial [33]. Without a pleaded risk, Cootharinga could not know precisely what case it had to answer. The Court also needed the plaintiff’s formulation before it could determine whether it was within the appropriate range and then address the statutory breach questions under s 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) [30], [33].
The primary judge had framed the strike-out issue as whether the additional pleading was relevant or irrelevant. In doing so, the judge did not address whether the risk had actually been pleaded with adequate precision [31]. Cooper J treated that omission as a failure to take a material consideration into account, an error of the kind described in House v The King [26], [31]. The resulting uncertainty was substantially unjust because Cootharinga would otherwise have to prepare for trial without knowing the risk case it had to meet [33]-[35].
The Court did not, however, accept the whole of Cootharinga’s argument. It was not satisfied that the manual-handling codes and related expert evidence were irrelevant. That conclusion depended on whether the risk identified through that material was outside the range of arguable formulations, and the Court could not reach that conclusion on the material before it [30]. The decision was therefore targeted: the relevant paragraphs were struck out for failing to articulate the risk, not because the Court finally rejected the manual-handling case.
The judgment applies established procedural and negligence principles rather than announcing a new statutory test. Section 305B requires a court deciding breach to consider whether the risk was foreseeable, whether it was not insignificant and whether a reasonable person would have taken precautions. It also directs attention to matters including the probability and likely seriousness of injury and the burden of precautions [14]. For causation, s 305D distinguishes factual causation, whether the breach was a necessary condition of the injury, from scope of liability [15].
Before this decision, the cited authorities had recognised difficulties in formulating a risk of harm and accepted that there could be more than one appropriate formulation. The Court referred to the discussion in Uniting Church in Australia Property Trust (NSW) v Miller and Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (t/as Seqwater) (No 22) [19], [30]. It also recorded the point that the risk should encompass the circumstances said to have caused the damage, without being confined to a precise reconstruction of those circumstances [19].
The judgment’s contribution is procedural and clarificatory. A plaintiff need not accept the defendant’s proposed formulation, but the plaintiff must plead a sufficiently clear formulation to make the controversy visible. The court cannot assess whether a proposed risk is too broad, too narrow or within the permissible range if the plaintiff has not identified it [29]-[33]. Thus, the decision does not establish that a particular risk formulation in this case is right or wrong. It requires that the formulation be stated before the statutory breach analysis can be properly undertaken.
The result also illustrates how strike-out principles interact with appellate restraint. An interlocutory procedural decision is not ordinarily disturbed lightly. The judgment referred to the need for an error and substantial injustice in this setting [25]-[27]. It found both: the primary judge omitted a material question, and the absence of a clearly pleaded risk left the defendant exposed to unfairness at trial [31]-[35].
At [29], Cooper J said Ms Wolfs was “not bound to accept” Cootharinga’s characterisation of the risk. In plain English, a defendant cannot dictate how the plaintiff must frame the alleged danger. The court will ultimately assess the competing formulations rather than automatically adopting the defendant’s version.
At [30], the Court said it could not conclude that the manual-handling material was irrelevant unless the risk Ms Wolfs identified through it was unarguable. In plain English, the Court was not prepared to remove that material just because Cootharinga said no manual-handling task caused the injury. The relevance depended on the risk case actually advanced and whether that case could reasonably fall within an appropriate formulation.
At [32], Cooper J concluded that the pleading “does not articulate the risk of harm”. This was not a finding about what the risk actually was. It was a finding about the content of the pleading: the factual narrative and assertion of a risk did not state the risk itself clearly enough.
At [33], the Court explained that pleadings must give a party the opportunity to meet the case against it and define the issues for decision. In practical terms, a defendant should be able to understand what alleged danger it must answer, and the court should be able to identify the question it must decide. The judgment treated this clarity as a matter of procedural fairness.
At [38], the Court rejected the separate costs challenge because the required leave had not been obtained. In plain English, the successful appeal about the strike-out application did not automatically bring a separate costs dispute within the appeal. The costs issue related to another application and had its own statutory leave requirement.
The decision is most directly relevant where a negligence pleading describes events and alleged precautions but does not state clearly what risk of harm those precautions were meant to address. That is particularly important where the parties propose materially different descriptions of the danger, as happened here: Cootharinga focused on a client opening a door into a worker nearby, while Ms Wolfs resisted that formulation as too narrow [17]-[20], [29]-[32].
It may also be relevant where a pleading relies on a range of surrounding circumstances, such as a worker’s duties, the behaviour or needs of service users, the layout of a workplace, vehicle arrangements, work systems or risk assessments. Such facts may help establish knowledge, foreseeability or appropriate precautions. But the judgment indicates that factual detail does not replace an express statement of the risk said to have materialised [9]-[11], [32]-[33].
The decision is not a ruling that a pleaded risk must be expressed using a particular formula, nor that it must be confined to the immediate physical mechanism of injury. The Court accepted that there may be a range of formulations and did not decide which was correct here [29]-[30]. The relevant trigger is a pleading that leaves the opposing party and the court unable to identify the plaintiff’s asserted risk and so unable to address the statutory breach questions fairly.
It also concerns appeal procedure where a party challenges an interlocutory decision. The judgment indicates that an arguable procedural error alone may not suffice; the appellant must also meet the relevant substantial-injustice threshold [25]-[27], [34]-[35]. A distinct costs-only challenge may require separate leave under s 118B of the District Court of Queensland Act 1967 (Qld) [38].
This judgment was delivered on 20 June 2025. The judgment text contains no account of later judicial treatment of the decision, and the material provided does not establish whether later courts have followed, distinguished or applied it. It would therefore be unsafe to state that a later court has adopted its reasoning.
Within the judgment itself, the Court grounded its approach in existing authorities. It referred to the formulation of risk discussed in Miller and Rodriguez, and concluded that the defendant’s formulation was not binding [29]-[30]. It applied House v The King when identifying the primary judge’s failure to address a material issue [31]. It also relied on Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd for the procedural fairness consequences of an incoherent pleading [34]-[35].
The judgment should therefore be read as an application of those authorities to a pleading dispute, rather than as a reported account of subsequent developments. Any assessment of later treatment would require material beyond this judgment.
The Court did not decide the correct formulation of the risk of harm in Ms Wolfs’ claim. It held only that the pleading did not articulate the risk sufficiently and that Cootharinga’s proposed formulation was not automatically controlling [29]-[33]. The question whether the plaintiff could plead a broader risk connected with the circumstances of assisting CMD, and whether that formulation would ultimately be accepted, remained open.
The Court also left open the ultimate relevance of the two manual-handling codes and related expert evidence. It rejected the contention that those matters could be treated as irrelevant simply because Cootharinga’s preferred risk formulation did not involve a manual-handling task. But it did not determine what the codes required, whether they applied to the particular circumstances, or whether any alleged failure under them would establish breach or causation [28]-[30].
The case did not determine whether Cootharinga owed a duty in the terms alleged, whether any risk was foreseeable or not insignificant, what precautions a reasonable employer would have taken, or whether any breach caused the injury. Those matters remained for the substantive proceedings. Nor did the Court decide the separate costs challenge concerning the trial-date application on its merits; it held that the required leave had not been obtained [37]-[38].
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Cootharinga North Queensland v Wolfs [2025] QCA 106
PARTIES: COOTHARINGA NORTH QUEENSLAND / ABN 92 009 656 679 / (applicant) / v / DIANE CAMILLE WOLFS / (respondent)
FILE NO/S: Appeal No 11866 of 2024 / DC No 22 of 2021
DIVISION: Court of Appeal
PROCEEDING: Application for Extension of Time/General Civil Appeal
ORIGINATING COURT: District Court at Townsville – [2024] QDC 146 (Coker DCJ)
DELIVERED ON: 20 June 2025
DELIVERED AT: Brisbane
HEARING DATE: 9 April 2025
JUDGES: Bond JA and Ryan and Cooper JJ
ORDERS: Grant the applicant an extension of time in which to file its application for leave to appeal. Grant the applicant leave to appeal. Allow the appeal against orders 1 and 4 made on 9 August 2024 and set aside each of those orders. In lieu of order 1, order that paragraphs 30, 30A, 31A and 32 of the second further amended statement of claim be struck out with leave to replead. In lieu of order 4, order that the plaintiff pay the defendant’s costs of and incidental to the defendant’s strike out application to be assessed on the standard basis. The respondent pay the applicant’s costs of and incidental to the application for leave to appeal and of the appeal to be assessed on the standard basis.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS – where the plaintiff was a disability support worker employed by the defendant – where the plaintiff has brought proceedings against the defendant alleging that a client of the defendant opened a car door into the plaintiff’s knee causing her personal injury suffered in the course of her employment – where the defendant contended that the plaintiff had not identified the risk of harm against which she alleges it ought to have taken precautions – where the plaintiff further contended that the plaintiff’s pleading of codes of practice addressing manual handling tasks raised an irrelevant issue because no manual handling task was causally related to the injury alleged by the plaintiff – where the defendant applied to have the plaintiff’s second further amended statement of claim struck out on the basis that it fails to disclose a reasonable cause of action, has a tendency to prejudice or delay the fair trial of the proceeding, or contains unnecessary allegations – where the primary judge dismissed the defendant’s application – where the defendant appealed the primary judge’s decision to dismiss the defendant’s application – whether the plaintiff’s second amended statement of claim should be struck out in whole or part / PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – where, on the hearing of the defendant’s application to strike out the plaintiff’s second amended statement of claim, the primary judge heard a separate application of the plaintiff – where the primary judge dismissed that application and reserved the defendant’s costs to the final determination of the proceeding – where the defendant sought, on appeal, to have its costs of that separate application paid by the plaintiff – where the defendant had not sought the primary judge’s leave to appeal the order of costs of that application pursuant to s 118B District Court of Queensland Act 1967 (Qld) – whether the defendant was entitled to have the costs of that application paid by the plaintiff / District Court of Queensland Act 1967 (Qld), s 118(3), s 118B / Uniform Civil Procedure Rules 1999 (Qld), r 171(1) / Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305D / Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141; [2021] QCA 198, applied / Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, cited / Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252, applied / Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183, cited / Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151, cited / House v The King (1936) 55 CLR 499; [1936] HCA 40, applied / Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90, cited / Pickering v McArthur [2005] QCA 294, cited / Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, cited / Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (t/as Seqwater) (No 22) [2019] NSWSC 1657, considered / Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11, cited / Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320, considered / Ure v Robertson [2017] 2 Qd R 566; [2017] QCA 20, cited
COUNSEL: S J Deaves KC for the applicant / P F Mylne for the respondent
SOLICITORS: Cooper Grace Ward for the applicant / O'Shea Dyer Solicitors for the respondent
BOND JA: I agree with the reasons for judgment of Cooper J and with the orders proposed by his Honour.
RYAN J: I agree with the reasons for judgment of Cooper J and with the orders proposed by his Honour.
COOPER J: The respondent (Ms Wolfs) has brought proceedings in the District Court of Queensland claiming damages for personal injuries she alleges she suffered in the course of her employment with the applicant (Cootharinga).
On 9 August 2024, the primary judge heard two applications in the proceedings. Relevantly, by the first of those applications, Cootharinga sought to strike out Ms Wolfs’ second further amended statement of claim or, alternatively, certain paragraphs of that pleading. The primary judge dismissed the strike out application the day it was heard.1
On 6 September 2024, Cootharinga filed an appeal against the dismissal of its strike out application. It now accepts that leave to appeal is required pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld). Accordingly, Cootharinga filed an application for an extension of time in which to apply for leave. Ms Wolfs did not object to an extension of the time for Cootharinga to file its application for leave to appeal.
For reasons which follow, I would grant the extension of time sought by Cootharinga, grant leave to appeal and allow the appeal against the dismissal of the strike out application.
Ms Wolfs’ claims against Cootharinga
Cootharinga employed Ms Wolfs as a disability support worker in its business providing accommodation for persons suffering from physical and intellectual disabilities. Her employment required her to care for and supervise residents of one of Cootharinga’s facilities. Two of those residents were identified in the statement of claim. To preserve their privacy, in this judgment they will be referred to by the pseudonyms CMD and LNC.
In summary, Ms Wolfs’ case is that on 3 December 2016, she drove CMD and LNC in a Toyota vehicle (the Toyota) owned by Cootharinga to different activities before returning with them to the residence. During the return journey, CMD was seated in the front passenger seat, while LNC was seated in the rear behind the driver’s seat. After driving into the garage of the residence, Ms Wolfs alighted from the Toyota and went to open the front passenger door for CMD. As she did this, LNC opened the rear driver’s side door and started to get out of the vehicle. While Ms Wolfs’ attention was drawn to LNC’s movements, CMD opened the front passenger door into Ms Wolfs’ knee, causing injury.
In addition to the circumstances in which she suffered injury, Ms Wolfs pleads facts relating to both CMD and LNC, including information as to their respective weights and disabilities and incidents involving each of them which occurred before the date Ms Wolfs was injured. Ms Wolfs relies upon those matters to inform the content of the duty of care alleged to be owed to her by Cootharinga. The effect of her pleading is that, because of those facts, Cootharinga knew or ought to have known that:CMD’s behaviour was unpredictable, she had previously failed to follow instruction or direction given by Cootharinga’s staff at the residential facility and had demonstrated an unwillingness to move on earlier occasions; andLNC’s behaviour was unpredictable, she had previously demonstrated difficulty in understanding simple instruction or direction given by Cootharinga’s staff at the residential facility and had a propensity to wander away.
Ms Wolfs also pleads that, in December 2016, various items of equipment and other objects associated with the care of the residents were stored at the front of the garage. Those stored objects permitted the Toyota to be driven into, and parked inside, the garage and for the garage door to be closed leaving a gap of approximately 40 to 50 centimetres between the rear of the Toyota and the closed garage door. However, Ms Wolfs’ case is that on the date she suffered her injury, the presence of the stored objects meant that it was not possible to move CMD out of the passenger seat and around either the front or the rear of the Toyota to get from the garage into the residence if the garage door was closed. Consequently, Ms Wolfs left the garage door open when she parked in the garage and moved to open the front passenger door for CMD.
In the context of those pleaded matters, the paragraphs of the pleading about which Cootharinga complains are as follows:
“30. [Cootharinga]:
failed to institute and maintain a system:
whereby there was more than one Disability Support Worker engaged in transporting [CMD] and [LNC] on trips such as the journey and return journey;
whereby there was a means of restraining [LNC] and [CMD] during the course of the journey and return journey;
which required [Ms Wolfs] to seek assistance from other employees in the circumstances pleaded herein;
which required [Ms Wolfs] to use child proof locks on the doors of the Toyota if they were fitted;
which prohibited the transport of [CMD] and [LNC] without the measures referred to in (i) and (iv) of this paragraph being taken;
failed to clean the stored objects from the garage;
failed to provide a vehicle fitted with child proof locks;
failed to provide a vehicle such as a van for use on the journey which permitted [CMD] and [LNC] to be properly secured during the journey;
failed to conduct a risk assessment under the Manual Tasks Involving the Handling of People Code of Practice 2001 (‘the 2001 Code of Practice’);
failed to conduct a risk assessment under Hazardous Manual Tasks Code of Practice 2011 (‘the 2011 Code of Practice’);
(‘the breaches of duty’)
30A. In the premises of the matters pleaded:
the activity of moving [CMD] from the front passenger seat of the Toyota to inside the premises:
involved a risk of injury to [Ms Wolfs] (‘the risk of injury’);
involved people handling activities, tasks and actions under the 2001 Code of Practice;
was a hazardous manual task under [the 2011 Code of Practice];
required the performance of a risk assessment under the 2001 Code of Practice; alternatively
required the performance of a risk assessment under the 2011 Code of Practice;
[Cootharinga] knew of the risk of injury;
[Cootharinga] knew of the risk of injury because of [the pleaded matters concerning the respective weights and disabilities of CMD and LNC and previous incidents involving each of them]; alternatively,
[Cootharinga] ought to have known of the risk of injury:
because of [the pleaded matters concerning the respective weights and disabilities of CMD and LNC and previous incidents involving each of them];
had it conducted a risk assessment as pleaded herein;
the risk of injury to [Ms Wolfs] was not insignificant;
[Cootharinga] failed to take precautions so as to alleviate the risk of injury to [Ms Wolfs];
each of the matters alleged in paragraph 30 constituted a breach of duty by [Cootharinga].
Had the steps referred to in paragraph 30(a)-(d) hereof been taken:
[Ms Wolfs’] attention would not have been distracted towards [LNC];
the front passenger door would not have been opened onto [Ms Wolfs’] knee; and
[Ms Wolfs] would not have suffered personal injury.
31A. Had [Cootharinga] conducted a risk assessment under either the 2001 Code of Practice or the 2011 Code of Practice:
the risk assessment would have recommended that:
the system pleaded in paragraph 30(a) be instituted and maintained;
the stored objects be moved from the garage;
a vehicle with childproof locks be used which permitted [CMD] and [LNC] to be properly secured during the journey;
a van be used which permitted [CMD] and [LNC] to be properly secured during the journey;
[Cootharinga] would have taken the steps recommended by the risk assessment;
the front passenger door would not have been opened;
[Ms Wolfs] would not have been injured.
The breaches of duty caused the harm to [Ms Wolfs] because:
each was a necessary condition of the occurrence of the harm as [Ms Wolfs] would not have suffered injuries had any of those precautions being [sic, been] taken; and
it is appropriate for the scope of liability of [Cootharinga] to extend to the harm so caused as [Ms Wolfs] was an employee working within the scope of her employment.”
The basis for Cootharinga’s strike out application
Before the primary judge, Cootharinga submitted that Ms Wolfs’ second further amended statement of claim (or, alternatively, paragraphs 30, 30A, 31A and 32 of that pleading) should be struck out because it fails to disclose a reasonable cause of action, has a tendency to prejudice or delay the fair trial of the proceeding and contains unnecessary allegations.2
In advancing that submission, Cootharinga referred to ss 305B and 305D of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act).
Section 305B sets out general principles a court must apply in determining whether a duty of care owed to a worker has been breached. It provides:
“305B General principles
A person does not breach a duty to take precautions against a risk of injury to a worker unless —
the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
the risk was not insignificant; and
in the circumstances, a reasonable person in the position of the person would have taken the precautions.
In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
the probability that the injury would occur if care were not taken;
the likely seriousness of the injury;
the burden of taking precautions to avoid the risk of injury.”
“305D General principles
A decision that a breach of duty caused particular injury comprises the following elements—
the breach of duty was a necessary condition of the occurrence of the injury (factual causation);
it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).
…
For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.”
In that context, Cootharinga emphasised the importance of correctly identifying the risk of harm, because it is only through correct identification of the risk that one can assess what a reasonable response to that risk would be.3 The risk that must be identified must be that which materialised in the case of the injured person seeking to claim for breach of duty.4 Further, the risk must be characterised at an appropriate level of generality because addressing the questions and considerations in a provision such as s 305B makes it necessary to formulate a plaintiff’s claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed.5 Because 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.6
Cootharinga submitted that Ms Wolfs’ pleading does not expressly articulate the risk of injury against which it is alleged it ought to have taken precautions. It argued that, from paragraph 30A of the pleading, it appears that Ms Wolfs defines the risk of injury as “the activity of moving CMD from the front passenger seat of the Toyota to the inside of the premises” and submitted that this was not the risk which materialised. Cootharinga contended that the only relevance of the activity of moving CMD is that it might explain why Ms Wolfs was standing adjacent to the front passenger door of the Toyota when CMD opened that door. However, to define the risk of harm as arising from an activity that Ms Wolfs had not yet commenced when she was injured would, on Cootharinga’s submission, involve the Court embarking upon a broad and irrelevant inquiry about its systems of work related to manual handling in relation to an activity that was not the direct cause of Ms Wolfs’ injury. This would require the Court to consider expert evidence filed on behalf of Ms Wolfs, and Cootharinga would be put to the expense of engaging an expert to respond to that evidence.
Cootharinga submitted that the risk of harm which eventuated was the risk of a client opening a car door while Ms Wolfs was in the vicinity of the door and striking Ms Wolfs with the door. If the Court ultimately finds that risk to be foreseeable, it is that risk against which Cootharinga ought to have taken precautions. On that basis, Cootharinga submitted that Ms Wolfs’ pleading does not identify a relevant risk of injury against which Cootharinga ought to have taken precautions.
“The formulation of the correct risk of harm can be problematic.8 In [Uniting Church in Australia Property Trust (NSW) v Miller],9 Leeming JA acknowledged that ‘there may commonly be a range of appropriate formulations of the generality of the risk of harm’ and that it was ‘unrealistic to expect there to be a single canonically ‘right’ characterisation of the risk of harm’10 Nevertheless, some principles concerning the appropriate formulation have emerged. The relevant formulation can and possibly must use some degree of hindsight such that ‘the legal analysis be framed so as to encompass the risk which is claimed to have materialised and caused the damage of which the plaintiff complains’ (Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [22]; ‘Coles’)). However, the risk is not to be limited to the ‘precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances’.11 In Coles, it was stated that ‘[w]hat is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury … or because it too narrowly focusses on the particular hazard which caused the injury’.12 In Coles, a possible risk of harm was rejected as being too widely framed because it encompassed a set of circumstances that could have caused injury, namely a customer pushing a shopping trolley being hit by [a] car. This formulation was rejected because it was wholly unrelated to the risk that materialised, namely a customer pushing a shopping trolley and falling over.13”
The reasons of the primary judge
“28 The argument is therefore a clear one. Are the additional pleadings contained within the Second Further Amended Statement of Claim relevant or irrelevant to the determination of these proceedings. In that regard, I was assisted not only by the written outlines that were provided, but also by the oral argument presented on the part of each of the parties. What struck me, however, was that ultimately it is clear that it is an error to work backwards from how the injury might have occurred, because, in such a situation, the totality of considerations may not fully be appreciated, and, as was argued on the part of [Ms Wolfs], there are various ways to articulate a risk of harm and it is appropriate and proper that all should be addressed.
29 I am satisfied that that appropriately and properly reflects the basis upon which the pleading should be made and considered in relation to this matter, and, as such, made the order striking out the application with regard to the strike out of the Second Further Amended Statement of Claim, or, in the alternative, the striking out of paragraphs 30, 30A, 31A and 32.”
The application and appeal to this Court
By its amended notice of appeal, Cootharinga seeks to raise the following grounds of appeal:the primary judge erred in dismissing the strike out application in circumstances where Ms Wolfs’ pleading discloses no reasonable cause of action, has a tendency to prejudice or delay the fair trial of the proceeding and contains unnecessary allegations;the primary judge failed to give adequate reasons for his decision to dismiss the strike out application and failed to decide the material issues raised by that application;the primary judge erred in making the order reserving Ms Wolfs’ costs of the strike out application to the final determination of the proceeding.
The principles which apply to an application for leave to appeal in circumstances such as these were not in dispute.
Leave to appeal will usually only be granted under s 118(3) of the District Court of Queensland Act 1967 (Qld) where there is a reasonable argument that there is an error to be corrected, and an appeal is necessary to correct a substantial injustice.14
The kind of error that Cootharinga must demonstrate is that identified in House v The King,15 namely that the primary judge:acted upon a wrong principle;allowed extraneous or irrelevant matters to guide or affect his decision;mistook the facts;did not take into account some material consideration; orreached a result which upon the facts is so unreasonable or plainly unjust that the appellate court may infer error, even if the court cannot identify it precisely.
The exercise of appellate restraint in cases where, as here, the decision sought to be challenged on appeal is an interlocutory decision on a matter of practice and procedure, also means that, although there is no absolute rule and the circumstances of each case must be considered, an appellate court will generally not interfere unless, in addition to error of principle, a party in Cootharinga’s position demonstrates that the decision to dismiss a strike out application will work a substantial injustice to it.16
In written and oral submissions on appeal, Cootharinga repeated two arguments it made before the primary judge as to why the second further amended statement of claim (or, alternatively, paragraphs 30, 30A, 31A and 32 of that pleading) should be struck out. First, that Ms Wolfs has not expressly articulated the risk of injury which must be considered in addressing the questions raised by s 305B of the WCR Act. Secondly, the reference in Ms Wolfs’ pleading to codes of practice addressing manual handling tasks raises an irrelevant issue because no manual handling task, whether a prospective task or one actually performed by Ms Wolfs, could be found to be causally related to the injury she suffered.
“A party confronted with a pleading which does not coherently articulate the case it is required to meet is denied the basic requirement of procedural fairness that a party should have an opportunity of meeting the case against them (Banque Commerciale SA (In liq) v Akhil Holdings Ltd (1990) 92 ALR 53 at 58-59). In such cases, the party is exposed to additional expense and inconvenience in preparing for a trial on the basis of issues which are legally irrelevant, do not assist in the just determination of the true controversy between the parties and may significantly lengthen the duration of trials. That injustice ought not to be lightly dismissed.”
Although I have not accepted Cootharinga’s argument that Ms Wolfs has pleaded issues which are legally irrelevant, I am satisfied that the injustice caused by Ms Wolfs’ failure to articulate the risk of harm in her pleading is sufficient to warrant granting leave to appeal and, for the reasons set out above, allowing the appeal against the decision to dismiss the strike out application. Cootharinga does not oppose the grant of leave to Ms Wolfs to replead paragraphs which are struck out.
In circumstances where I would allow the appeal against the dismissal of the strike out applications, Cootharinga also seeks an order that Ms Wolfs pay its costs of that application below and its costs of the appeal. In circumstances where Cootharinga should have succeeded on its strike out application and has succeeded on its appeal of the decision to dismiss that application, costs ought follow the event as Cootharinga proposes.
Cootharinga sought to raise a further argument on appeal about its costs of the second application heard by the primary judge on the same date the strike out application was dismissed. That application was brought by Ms Wolfs to dispense with Cootharinga’s signature on the request for a trial date. The primary judge also dismissed that application. His Honour reserved Cootharinga’s costs of that second application to the final determination of the proceeding. By its proposed appeal, Cootharinga seeks an order that Ms Wolfs pay its costs of that second application.
The challenge to the costs order made on the second application does not arise from the challenge to the decision to dismiss the strike out application. It is, in substance, separate from that appeal. Further, in circumstances where the dismissal of the second application is not challenged, it constitutes an appeal only in relation to costs from an order of the District Court, being order 5 made by the primary judge on 9 August 2024. Such an appeal lies to this Court only by leave of the primary judge or, if the primary judge is not available, another judge of the District Court.20 As Cootharinga has not obtained the necessary grant of leave, this part of its proposed appeal cannot succeed.
Conclusion
Grant the applicant an extension of time in which to file its application for leave to appeal.
Grant the applicant leave to appeal.
Allow the appeal against orders 1 and 4 made on 9 August 2024 and set aside each of those orders.
In lieu of order 1, order that paragraphs 30, 30A, 31A and 32 of the second further amended statement of claim be struck out with leave to replead.
In lieu of order 4, order that the plaintiff pay the defendant’s costs of and incidental to the defendant’s strike out application to be assessed on the standard basis.
The respondent pay the applicant’s costs of and incidental to the application for leave to appeal and of the appeal to be assessed on the standard basis.
The primary judge did not provide reasons when the orders were made dismissing the applications, but indicated he would provide reasons later if either party required it. Cootharinga sought reasons for the dismissal of its strike out application and the primary judge provided those reasons on 25 September 2024: see Wolfs v Cootharinga North Queensland [2024] QDC 146 (Reasons). ↩
See Uniform Civil Procedure Rules 1999 (Qld) r 171(1)(a)–(c). ↩
Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330, 351 [59]. ↩
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151, [7] (Garzo). ↩
Garzo, [22]. ↩
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454, 489 [106] (Tapp). ↩
[2019] NSWSC 1657, Chapter 11, [29]. ↩
See Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1, [105]–[106]. ↩
(2015) 91 NSWLR 752 (Miller). ↩
Miller, [119]. ↩
Cootharinga North Queensland
Wolfs [2025] QCA 106
(1936) 55 CLR 499
(2022) 273 CLR 454
(2015) 91 NSWLR 752
(2015) 90 NSWLR 1
(1990) 92 ALR 53
(1990) 169 CLR 279
(2007) 234 CLR 330
Extension of time and leave to appeal granted. Appeal allowed against the dismissal of the strike-out application and the associated costs order. Paragraphs 30, 30A, 31A and 32 of the second further amended statement of claim struck out with leave to replead. Ms Wolfs ordered to pay Cootharinga’s costs of the strike-out application on the standard basis, and the respondent ordered to pay the applicant’s costs of the leave application and appeal on the standard basis. The separate proposed costs appeal concerning Ms Wolfs’ trial-date application did not succeed.
In response, Ms Wolfs relied upon the following statement by Beech-Jones J in Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (t/as Seqwater) (No 22) (Rodriguez):7
It is convenient to commence with Cootharinga’s second argument. That argument proceeds from an assumption that the risk of harm to be considered in addressing the questions raised by s 305B of the WCR Act must be that identified by Cootharinga; namely, the risk of a client opening a door of a vehicle and injuring a worker when the worker was in the vicinity of the door. Contrary to that assumption, Ms Wolfs is not bound to accept that characterisation of the relevant risk of harm in pleading her claims. Nor would the Court be bound to accept Cootharinga’s characterisation of the relevant risk of harm in finally determining the claims.
From Ms Wolfs’ submissions to the primary judge, and before this Court, it is clear she contends that Cootharinga’s characterisation of the risk of harm is too narrow. This position accords with the statements of Leeming JA in Miller and Beech-Jones J in Rodriguez upon which Ms Wolfs relies (see [19] above).17 It is not possible to conclude that Ms Wolfs’ pleading of the codes of practice dealing with manual handling tasks, and the expert evidence which addresses those codes, raise issues that are irrelevant to the determination of Ms Wolfs’ claims unless the risk of harm Ms Wolfs identifies from such matters is found to be unarguable; that is, the risk of harm Ms Wolfs identifies from those matters, falls outside the range of appropriate formulations of the generality of the risk of harm discussed by Leeming JA in Miller and Beech-Jones J in Rodriguez. I am not satisfied such a conclusion can be reached in this case. This is, in substance, the same conclusion the primary judge reached in paragraphs [28] and [29] of the Reasons.
Although that aspect of the Reasons is correct, I am nevertheless satisfied that the decision to dismiss the strike out application was made because of an error of the type identified in House v The King. That is because, in the first two sentences of paragraph [28] of the Reasons, the primary judge incorrectly identified the issue to be determined on the strike out application. The relevant issue was whether Cootharinga had established that the conditions required to engage the Court’s power to strike out Ms Wolfs’ pleading, in whole or in part, were satisfied. That is, whether that pleading fails to disclose a reasonable cause of action, has a tendency to prejudice or delay the fair trial of the proceeding or is unnecessary. Determining that issue required consideration of Cootharinga’s first argument — that Ms Wolfs’ pleading did not articulate the risk of harm — as well as the second argument addressed above. Although paragraph [28] of the Reasons referred to Ms Wolfs’ argument that a risk of harm might be articulated in various ways, the primary judge did not engage with the question whether her pleading actually articulated the risk of harm with sufficient precision, or at all.
I accept Cootharinga’s submission that Ms Wolfs’ pleading does not articulate the risk of harm. Paragraph 30A pleads that there was a risk of injury, and the pleading otherwise identifies the factual circumstances in which that risk of injury is said to have existed, but it does not articulate what the risk of injury was in a way which would expose the contest between the parties’ differing formulations of the risk of harm.
I also accept that this deficiency meant that paragraphs 30, 30A, 31A and 32 of Ms Wolfs’ pleading should have been struck out. The function of pleadings is to state with sufficient clarity a party’s case to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.18 On this basis, as a matter of procedural fairness, Cootharinga is entitled to know how Ms Wolfs will seek to frame the risk of harm in advancing her claims at trial. I am satisfied that it would be substantially unjust for Cootharinga to have to go to trial without Ms Wolfs identifying the risk of harm in her pleading. The Court must also know how Ms Wolfs articulates the risk of harm if it is to resolve the contest between differing formulations in advance of addressing the questions raised by s 305B of the WCR Act. Because Ms Wolfs’ pleading does not articulate the risk of harm, it does not fulfil these requirements and, consequently, has a tendency to prejudice or delay the fair trial of the proceeding. The primary judge’s failure to recognise this deficiency in the pleading means that he did not take a material consideration into account.
The consequences of Ms Wolfs’ failure to articulate the risk of harm in her pleading means I am also satisfied that an appeal of the decision to dismiss Cootharinga’s strike out application is necessary to correct a substantial injustice. As this Court stated in Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd:19
Miller, [118]. ↩
Coles, [22]. ↩
Coles, [23]. ↩
Pickering v McArthur [2005] QCA 294, [3] (Keane JA, McMurdo P and Dutney J agreeing). ↩
(1936) 55 CLR 499, 504–505. See also Ure v Robertson [2017] 2 Qd R 566, 579 [48] (Bond J, Gotterson and Morrison JJA agreeing). ↩
Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141, 149 [12]–[13] (Bond JA, Fraser JA and Wilson J agreeing). ↩
See also Tapp, 489–490 [108]. ↩
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279, 286. ↩
[2011] QCA 252, [22] (Philippides J, Chesterman JA and North J agreeing). ↩
District Court of Queensland Act 1967 (Qld) s 118B. ↩