Hays Specialist Recruitment (Australia) Pty Ltd v Carey-Schofield; Civeo Pty Ltd v Carey-Schofield [2025] QCA 161

SUPREME COURT OF QUEENSLAND

CITATION: Hays Specialist Recruitment (Australia) Pty Ltd v Carey-Schofield; Civeo Pty Ltd v Carey-Schofield [2025] QCA 161

PARTIES: In Appeal No 6315 of 2024: / HAYS SPECIALIST RECRUITMENT (AUSTRALIA) PTY LTD / ABN 47 001 407 281 / (appellant) / v / AARON PHILLIP CAREY-SCHOFIELD / (first respondent) / CIVEO PTY LTD / ABN 53 003 657 510 / (second respondent) / In Appeal No 6319 of 2024: / CIVEO PTY LTD / ABN 53 003 657 510 / (appellant) / v / AARON PHILLIP CAREY-SCHOFIELD / (first respondent) / HAYS SPECIALIST RECRUITMENT (AUSTRALIA) PTY LTD / ABN 47 001 407 281 / (second respondent)

FILE NO/S: Appeal No 6315 of 2024 / Appeal No 6319 of 2024 / SC No 1014 of 2021

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Rockhampton – [2024] QSC 60 (Crow J)

DELIVERED ON: 2 September 2025

DELIVERED AT: Brisbane

HEARING DATE: 15 October 2024

JUDGES: Bond and Brown JJA and Vaughan AJA

ORDER: In each of Appeal No 6315 of 2024 and Appeal No 6319 of 2024, the Court orders as follows:

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE INFERENCES OF FACT INVOLVED – WHERE FACTS IN DISPUTE – where the first respondent suffered a workplace injury when employed by the appellant in the first proceeding to perform facilities work as directed by the appellant in the second proceeding – where the first respondent brought proceedings against the appellants alleging breach of a duty of care to take precautions against risk of harm by failing to train the plaintiff as to, and failing to provide, a safe system of work – where the appellants say that they were not afforded procedural fairness so far as the primary judge determined the proceedings adversely to them in a manner that was inconsistent with the first respondent’s pleaded case and his case at trial as well as the first respondent’s evidence – where it is an error for a trial judge to decide a case relying on reasons or grounds that were not within the ambit of the case raised on the pleadings or otherwise go beyond the issues joined between the parties at trial – whether there was a denial of procedural fairness in the primary judge accepting the ‘basic version’ of the incident having accepted the first respondent’s evidence as to how the incident occurred ‘in a general sense’ – whether, as a result of the inconsistency between the plaintiff's version of events and the primary judge's factual findings, the appellants lost an opportunity to test various matters / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – where the appellants also challenge some of the primary judge’s factual findings – where there is a distinction to be drawn on challenges to factual findings on an appeal by way of rehearing between factual findings which are likely to have been affected by impressions about the credibility and reliability of a witness formed by the trial judge as a result of seeing the witness give evidence; and factual findings based on inferences drawn from accepted facts – where the impugned findings were the product of the primary judge's assessment of the credibility and reliability of the plaintiff's evidence in the context of, and informed by, the inferences drawn from the photographic evidence – whether there was a proper basis for the inferences as drawn by the primary judge – whether in making various factual findings as to the circumstances in which the first respondent injured his arm the primary judge erred in fact or in law / WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND ADJUDICATION – where if there is a basis for judgment to be entered in favour of the first respondent, the appellants challenge the assessment of damages to the extent that the primary judge made allowances for future loss of earning capacity and future loss of superannuation benefits – where an assessment of damages is a discretionary decision, to which the House v The King standard of appellate review applies – where in order to justify review on the ground that an award is excessive, the compensation must be so excessive as to be beyond the limits of what a sound discretionary judgment could reasonably adopt – where there was no challenge to the primary judge’s methodology for assessing the plaintiff’s future economic loss – whether the primary judge erred in fact or in law calculating the awards for future loss of earning capacity and future loss of superannuation benefits – whether the primary judge erred in law by ordering that the appellant in the second proceeding pay the first respondent’s costs incurred in the proceedings against the appellant in the first proceeding – whether s 316 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) precluded the primary judge from making the costs order / Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 316, s 306J / Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, considered / House v The King (1936) 55 CLR 499; [1936] HCA 40, applied / HT v The Queen (2019) 269 CLR 403; [2019] HCA 40, applied / McKay v Commissioner of Main Roads [2013] WASCA 135, considered / Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65, considered / Montemaggiori v Wilson (2011) 58 MVR 497; [2011] WASCA 177, cited / Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, cited / Suvaal v Cessnock City Council (2003) 77 ALJR 1449; [2003] HCA 41, considered / Tep v ATS Australasian Technical Services Pty Ltd [2015] 2 Qd R 234; [2013] QCA 180, considered / Thomson v State of Queensland (No 2) [2019] 3 Qd R 514; [2019] QSC 115, considered

COUNSEL: S J Deaves KC, with M A Rothery, for the appellant in Appeal No 6315 of 2024 and the second respondent in Appeal No 6319 of 2024 / B F Charrington KC, with D J Hinkley, for the appellant in Appeal No 6319 of 2024 and the second respondent in Appeal No 6315 of 2024 / P T Cullinane KC, with M E Holmes, for the first respondent

SOLICITORS: DWF (Australia) for the appellant in Appeal No 6315 of 2024 and the second respondent in Appeal No 6319 of 2024 / Moray & Agnew Lawyers for the appellant in Appeal No 6319 of 2024 and the second respondent in Appeal No 6315 of 2024 / Shine Lawyers for the first respondent

THE COURT:

Overview

1. On 24 February 2019, Aaron Carey-Schofield (plaintiff) suffered a workplace injury when employed by Hays Specialist Recruitment (Australia) Pty Ltd (Hays) to perform facilities work as directed by Civeo Pty Ltd (Civeo) at Civeo's accommodation village at Dysart. The plaintiff brought proceedings against Hays and Civeo alleging breach of a duty of care to take precautions against risk of harm by, among other things, failing to train the plaintiff as to, and failing to provide, a safe system of work. After a four-day trial the primary judge (Crow J) delivered written reasons finding for the plaintiff: Carey-Schofield v Hays & Civeo.¹ The primary judge entered judgment against Hays for $503,595.51 and Civeo for $873,014.08.

2. By these appeals Hays and Civeo contend that the primary judge erred in giving judgment for the plaintiff.

3. Hays and Civeo say that they were not afforded procedural fairness so far as the primary judge determined the proceedings adversely to them in a manner that was inconsistent with the plaintiff's pleaded case and his case at trial as well as the plaintiff's evidence. Hays and Civeo also challenge some of the primary judge's critical factual findings in upholding the plaintiff's claim and Hays raises a point about the primary judge's formulation of the relevant risk of harm. In the alternative, if there is a basis for judgment to be entered in favour of the plaintiff, Hays and Civeo challenge the assessment of damages to the extent that his Honour made allowances for future loss of earning capacity and future loss of superannuation benefits.

4. Civeo also challenges the costs order made by the primary judge raising a point as to the proper construction of s 316 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

5. For the reasons that follow both appeals should be dismissed.

Background

6. Hays is a labour hire company. Hays employed the plaintiff on a casual basis between 15 and 27 February 2019 to work in the position of 'facilities - stores/grounds' with Civeo at Civeo's Dysart accommodation village. The plaintiff was one of many facilities cleaning staff at the village. The plaintiff received an induction and training over 15 - 18 February 2019 when he commenced at the village. One aspect of the services performed by the plaintiff at the village concerned waste and rubbish removal and disposal.

7. The primary judge made findings as to the system of work adopted by Civeo for waste and rubbish removal and disposal and, by comparison, the training and instruction provided to the plaintiff on that subject.

8. There were numerous 240-litre wheelie bins throughout the accommodation village. The bins were lined with large plastic bags. The rubbish in the bins was collected and taken away from time to time. Kevin Nash, the facilities supervisor for Civeo at the village in February 2019, gave evidence of the system of work he taught. The primary judge seemingly accepted this evidence as Civeo's safe system of work [16] (see also [112]). The system was to open the lid of the wheelie bin, tie the bin liner bag, pull the liner bag with rubbish out and immediately put the tied rubbish bag on the back of a utility vehicle. Mr Nash said that he did not train new employees to place rubbish bags on the ground as that would obviously create a trip hazard [13].

9. The system was to have two workers available - for a team lift if the rubbish bags were too heavy - to avoid creating a tripping hazard by requiring rubbish bags once removed from a wheelie bin to be placed onto a utility straight away [16], [17].

10. Mr Nash's evidence that rubbish bags should not be left on the ground, but should be placed on a utility straight away, was consistent with the evidence of the village manager at the material time [12] and the evidence of an employee in Civeo's maintenance department [17]. Another employee who transitioned to the facilities team at around the time of the plaintiff's accident gave evidence that she was trained to tie the bin liners up, take the bin liner out of the wheelie bin, put the rubbish bag immediately in the back of a utility, and then go to the next bin [19]. However, a written facilities work instruction did not include a direction that, when full, rubbish bags ought to be placed into the rear of a utility immediately rather than be placed on the ground [15].

11. The primary judge recorded the effect of the plaintiff's evidence as to the training he received on Civeo's system of work [21], [27] - [30], [32] - [33]. His Honour accepted that evidence [34], [56]. The primary judge made findings that:

The plaintiff was placed with a male work buddy who provided a practical demonstration as to the method by which the plaintiff was required to carry out his duties [100](c).

As to waste and rubbish removal and disposal, the plaintiff was instructed to [100](d):

drive a work utility to the area where the relevant wheelie bins were located;

attend at a bin, open its lid, tie the top of the liner bag, lift the liner bag out of the bin and put it down on the ground, put a new liner bag in the bin, and then go to the next available bin until each of the liner bags with rubbish had been removed;

collect the rubbish bags and lift them into the back of his utility.

The plaintiff was also instructed that, if the bin liners with rubbish were too heavy to lift, he should [100](e):

lie the wheelie bin on the ground, drag the bin liner full of rubbish out on its side, stand the bin up, and put a new bin liner in the wheelie bin;

call for assistance if he was unable to lift the rubbish bag onto the tray of his utility.

12. Accordingly, as the primary judge observed, the plaintiff was not trained to perform waste and rubbish removal and disposal in accordance with Civeo's safe system of work: the plaintiff was not trained to immediately place rubbish bags into the rear of a work utility so as to avoid trip hazards to himself and others [34]. The plaintiff was trained to take all the full bags of rubbish out of the wheelie bins and place them on the ground before loading them into the back of his utility [42], [56], [77], [83] - [84].

13. On the evidence the plaintiff was a relatively slight individual - he weighed around 54 kilograms (ts 2-32).

14. The plaintiff was injured when emptying wheelie bins of rubbish on 24 February 2019. The plaintiff claimed, in effect, that when startled by a wasp he stepped backwards, tripped on a rubbish bag left on the ground and fell onto his left elbow.

15. It will be seen that there was and is controversy as to the details of the incident that resulted in the plaintiff's injury. One matter of significance concerned identification of the rubbish bag that the plaintiff tripped on. The grounds of appeal necessitate that detailed consideration be given to the plaintiff's pleaded case and his evidence at trial together with the primary judge's factual findings. This is addressed below after identification of the issues raised by the appellants' grounds of appeal. For now it suffices to say that, in a 'general sense', the primary judge accepted the plaintiff's evidence as to how the accident occurred [66].

16. As a result of his injury, the plaintiff was hospitalised. He suffered a comminuted intra-articular fracture of the left distal humerus with displacement that required surgery. The plaintiff was left with significant limitation in range of movement of the left elbow. A medical practitioner called at trial, whose evidence was accepted, described the plaintiff as presenting with a left elbow deformity and muscular wasting of the left arm. The radiological evidence showed post-traumatic degenerative change that was likely to be ongoing. The plaintiff was assessed as having a 7% whole person impairment with an additional 1% whole person impairment for post-surgical scarring. In terms of occupational prognosis the plaintiff was restricted to light semi-skilled employment. There was also evidence that the plaintiff suffered psychiatric impairment as a sequela to his physical injury [119] - [126].

17. For the purpose of the negligence claims the primary judge characterised the relevant risk of harm as the risk of tripping on the garbage bags [107].

18. The primary judge was satisfied that Hays and Civeo had breached their duty of care to the plaintiff in several ways [110], [112], [115]. These findings are not challenged on appeal. Accordingly, it is not necessary to summarise the various breaches as found. In short, however, his Honour considered that there was a failure to provide the plaintiff with and train the plaintiff as to a proper and safe system of work.

The issues on appeal

21. Hays and Civeo bring separate appeals. However, there is considerable overlap in their grounds of appeal. Accordingly, it is convenient to summarise the substance of the various grounds, identifying the issues for determination, rather than reproducing the grounds of appeal in full.

22. The appeals raise the following issues for determination:

Whether in giving judgment for the plaintiff against Hays and Civeo the primary judge erred in law by not affording the appellants procedural fairness so far as the primary judge determined the proceedings adversely to the appellants in a manner inconsistent with the plaintiff's pleaded case and his case at trial together with the plaintiff's evidence? (Hays ground 2.1(a); Civeo ground 2(a).)

Whether in making various factual findings as to the circumstances in which the plaintiff injured his arm the primary judge erred in fact or in law? (Hays ground 2.2; Civeo ground 2(b) - (c), (e) - (f).) The relevant factual findings are at primary reasons [93], [94] and [100](h), (i) and (k) and are reproduced or summarised at [84] and [85](5), (6) and (8) below.

Whether the primary judge erred in fact or in law in defining the risk of harm too broadly by failing to include in the risk of harm the fact that the plaintiff moved backwards in an uncontrolled manner as a consequence of having been startled? (Hays ground 2.1(b).)

Whether the primary judge erred in fact or in law by awarding $250,000 for future loss of earning capacity and $29,450 for future loss of superannuation benefits? (Hays ground 2.3; Civeo ground 2(g), (h).)

Whether the primary judge erred in law by ordering that Civeo pay the plaintiff's costs incurred in the proceedings against Hays in that such an order was contrary to s 316 of the Workers' Compensation and Rehabilitation Act? (Civeo ground 2(i).)

23. Issue 3 is advanced solely by Hays. Issue 5 is advanced solely by Civeo.

24. Hays and Civeo challenge the same factual findings in respect of Issue 2. There is, however, a little divergence in their approach. Both say that all or some of the impugned findings were inconsistent with the plaintiff's pleaded case and his evidence and case at trial (Hays ground 2.2(d); Civeo ground 2(e)). Both also say that the possibility of such findings was not raised with them by the primary judge prior to delivery of judgment (Hays ground 2.2(e); Civeo ground 2(f)). In these two respects Issue 2 duplicates Issue 1. It is convenient to deal with these aspects of the challenge to the factual findings when addressing Issue 1.

25. Hays otherwise challenges the impugned factual findings on the basis that:

“(a) the findings were unsupported by any direct evidence given at the trial;

to the extent that inferences were drawn by the learned trial judge from Exhibit 16, those inferences were contrary to the direct evidence given at trial;

to the extent that inferences were drawn by the learned trial judge from Exhibit 16, those inferences were no more likely than the other inferences available.” (Hays ground 2.2.)

26. In addition to the overlap with Issue 1, Civeo challenges the impugned factual findings on the basis that the primary judge erred:

“(b) In law, by finding that [the plaintiff] proved the element of causation associated with the findings of fact made at paragraphs [93], [94], [100(i)] and [100(k)] of [the primary reasons] when those findings were merely an equally probable competing hypothesis with the incident occurring by way of [the plaintiff] tripping and falling over the bag he was extracting from a bin and not falling on an adjacent bin bag;

In fact, by finding at paragraphs [94] and [100(k)] by inference from Exhibit 16 that [the plaintiff] tripped and fell on the third bin bag (from the right) shown in Exhibit 16, when that finding was unsupported by any evidence and contrary to [the plaintiff's evidence].” (Civeo ground 2.)

27. Hays and Civeo advance Issue 4 as to the quantification of the future loss of earning capacity and the future loss of superannuation benefits in different ways. Civeo says that: (1) the awards were inconsistent with the primary judge's findings, at primary reasons [135], in relation to past weekly earnings; and (2) the plaintiff was in employment and gave evidence that he intended to maintain that employment. See Civeo ground 2(g) and (h). Hays relies on those matters but says in addition that: (1) the awards were against the weight of the evidence; (2) the awards were inconsistent with the primary judge's findings, at primary reasons [134], regarding the plaintiff's chances of securing work in the mining industry; and (3) the awards exceeded a reasonable assessment of the plaintiff's loss. See Hays ground 2.3.

28. By application dated 20 August 2024 the plaintiff sought that this court receive, by way of further evidence pursuant to r 766(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld), the affidavits of the plaintiff sworn 11 July 2024 and Alicia Franzsen sworn 22 July 2024. Ms Franzsen is a human resources manager at a company that employed the plaintiff from 22 January 2024 to 25 March 2024. The application was supported by the affidavit of Craig Oliver sworn 20 August 2024. Mr Oliver is a solicitor employed by the plaintiff's solicitors.

29. The further evidence sought to be adduced on the appeal went to the fact and circumstances of the termination of the plaintiff's employment after judgment was reserved following the trial before the primary judge. The further evidence was, in this respect, only conceivably relevant in relation to Issue 4. Accordingly, further consideration of the application to adduce further evidence on the appeal may be deferred until we come to deal with Issue 4.

The plaintiff's pleaded case

30. Before examining Issue 1, it is necessary to consider the plaintiff's pleaded case and his evidence and case at trial together with the primary judge's findings of fact. In referring to the plaintiff's evidence it will be convenient to refer to the evidence of some of the other witnesses so far as that evidence was relied on by senior counsel for Civeo at the appeal hearing.

31. The plaintiff pleaded that he was tasked with rubbish removal from wheelie bins situated behind The Hub at the accommodation village (SOC² par 9). Reference was then made to a work instruction developed by Civeo as to the removal of rubbish and a control measure for an identified risk of injury that arose in handling full rubbish bags from bins (SOC pars 10 - 12). In the event that a rubbish bag was full, and was too heavy, the top of the bag was to be tied, the bin was to be tipped over and the bag was to be dragged out. The worker was then to gain assistance to lift the rubbish bag onto a utility (SOC par 12).

32. The circumstances of the plaintiff's accident was then pleaded in the following terms (SOC par 13):

“On or about 24 February 2019 at or about 10:30 am:

the plaintiff was directed to undertake the removal of rubbish from the rubbish bins situated behind The Hub at the accommodation village;

prior to this occasion, the plaintiff had not been tasked with undertaking the removal of rubbish from bins behind The Hub;

the plaintiff had on prior occasion removed rubbish from the mess hall/kitchen which had different bins to those placed at the rear of The Hub;

bins placed at the rear of the hub consisted of 240 litre domestic wheelie bins;

the plaintiff attempted to remove the rubbish from the wheelie bins in accordance with the work instruction but were too heavy;

in accordance with the instruction given by [Civeo] and consistent with the risk assessment, the plaintiff called for the assistance of another colleague driving past in a golf buggy;

the plaintiff's work colleague saw the bins and acknowledged that they were heavy and drove off;

the plaintiff then tied the top of the bags and tipped one bin on its side and dragged the bag from the bin onto the ground, placed a fresh bin liner in the bin and stood the bin back up;

the plaintiff then proceeded with the second bin by tying the top of the bag and laying the bin onto the ground and proceeded to pull the bag out from the bin when a wasp flew out from the bin towards him, landing on his arm, startling the plaintiff;

the plaintiff took a step backwards to move away from the wasp and as he did so he fell over the first bag of rubbish he had pulled out from the bin and left on the ground, landing on his left elbow.” (emphasis added)

33. The pleader referred to this as 'the incident' (SOC par 13).

34. At trial there was a dispute about the allegation that a work colleague driving by saw the bins, acknowledged they were heavy, and drove off. The primary judge made various findings about that dispute. See in particular primary reasons [54] - [60], [76] - [82], [85] - [86], [100](g). Those findings are not material to the issues on appeal.

35. Hays denied the allegation pleaded in par 13(i) of the SOC. Hays pleaded that it believed the allegations to be untrue because, in fact, the plaintiff 'pulled the bags out of all four bins' (Hays Defence³ par 8(e)). Hays also denied the allegation pleaded in par 13(j) of the SOC. Hays pleaded that the plaintiff did not fall over the first bag of rubbish. Hays pleaded that if the plaintiff fell over anything, which was not admitted, he fell or tripped over the bag of rubbish that he was in fact pulling, carrying or manoeuvring (Hays Defence par 8(f)).

36. Civeo's Defence⁴ was in different terms.

37. Civeo did not admit that a wasp flew out from a bin and landed on the plaintiff's arm. Civeo also denied that the plaintiff was injured while removing a garbage bag from the second bin; it said that the plaintiff had removed the garbage from at least three or four bins before he was injured (Civeo Defence par 10(e)). However, Civeo admitted that the plaintiff landed on his elbow because he fell over one of the garbage bags he had removed from the bins and left lying on the ground in the area in which he was working (Civeo Defence par 10(f)).

38. Accordingly, Civeo admitted, in substance, that the plaintiff tripped and fell over a rubbish bag that he left on the ground.

39. There is an issue as to the status of the Civeo Defence. There is a suggestion in the trial transcript that Civeo was given leave to file an amended defence in the terms of the Hays Defence (ts 3-65). This, presumably, would have withdrawn the admission that the plaintiff tripped and fell over a rubbish bag that he left on the ground. At the appeal hearing, senior counsel for Civeo said that, by oversight, the amended defence was not filed (appeal ts 1-41 to 1-42). It was suggested that this was without consequence so far as, given the Hays Defence, the case proceeded on the basis of the pleaded dispute between the plaintiff and Hays, ie as if Civeo had amended its defence. There was in this respect no suggestion that Civeo's admission resolved the issue as to the mechanism of the plaintiff's injury.

The plaintiff's evidence

40. The plaintiff was the only person present at the accident site when he was injured. Only the plaintiff could give direct evidence of what occurred. The plaintiff gave oral evidence-in-chief and was cross-examined.

41. The plaintiff confirmed that the incident occurred around 10.30 am in the morning (ts 1-11). He said that there were four or five bins containing rubbish that were 'really heavy' (ts 1-13). The plaintiff said that he got the first bin out and then gave evidence of an interaction with a female co-worker who drove by (ts 1-13 to 1-14). The plaintiff's evidence was that after the co-worker drove off:

“I went back to start emptying the rest of them - the rest of the bins - and, yeah, that's when I got the second bag out, same procedure: open the lid, tie the bag, put the bin on the side, drag the bin out. And once I did that, boss [referring to the wasp] comes out, I stepped back, bang.

Well, what do you mean 'bang'?‑‑‑Fell over. Sorry.

And what did you fall over?‑‑‑I tripped over the bag - one of the bags.

And when you're talking about the bags, what type of bag?‑‑‑The rubbish bag. Like, the bin liner that I had taken out.

Was it the bag that you took out of the bin from which the wasp came?‑‑‑No.

Are you saying it was one of the bags you took out earlier?‑‑‑Yes.” (ts 1-14)

42. Senior counsel for the plaintiff asked the plaintiff how certain he was about the number of bags he successfully removed prior to the trip and fall. The plaintiff said that he was 'pretty certain' it was 'only one or two'. He commented that there still would have been 'plenty left to do' (ts 1-14).

43. The plaintiff was initially cross-examined by counsel for Civeo. Counsel put to the plaintiff that he did not have a specific recollection as to how the incident occurred. The plaintiff said that he had a 'fairly decent recollection' (ts 1-36). When asked which bin the wasp came out of the plaintiff said one of the wheelie bins; however the wasp did not come out as soon as he opened the lid, but rather when the plaintiff dragged the bag out (ts 1-37). The plaintiff said that he had pulled the bags out of the first bin and a second bin and left the bags of rubbish on the ground (ts 1-38).

44. Counsel for Civeo then took the plaintiff to a series of statements he made either following the accident or in the course of treatment for his injury (ts 1-40 to 1-43). These included Kevin Nash (the Civeo supervisor). When it was put to the plaintiff that he had never relayed to Mr Nash that he had tripped over a garbage bag the plaintiff said not that he recalled (ts 1-43). (When Mr Nash later gave evidence, Mr Nash said no more than that the plaintiff said that he was swooshing a wasp away and fell over (ts 3-18). Moreover, so far as Mr Nash completed an incident report, there was no input from the plaintiff - the plaintiff was in hospital and Mr Nash could not get the plaintiff to give him a first-hand account (ts 3-27).)

45. At that point, counsel for Civeo announced that senior counsel for Hays was going to finalise the rest of the cross-examination.

46. Senior counsel for Hays raised a conversation the plaintiff was said to have had with Ashley Corrie of Hays; the plaintiff did not remember that conversation (ts 1-47 to 1‑48; ts 1-61). The suggestion was that the plaintiff had told Mr Corrie that the plaintiff tripped on the rubbish he was carrying. (When Mr Corrie gave evidence later his evidence was to the effect that the plaintiff stated in a telephone conversation that the plaintiff had been stung by a wasp and tripped over a garbage bag he was carrying (ts 3-54 to 3-55; ts 3-58).)

47. The plaintiff was then taken to a conversation he had with Steven Dwyer of WorkCover Queensland on 27 February 2019 (three days after the accident). The plaintiff recalled informing Mr Dwyer that he, the plaintiff, was stung by a bee or wasp while pulling a garbage bag and fell over backwards and hit himself on the ground (ts 1-47 to 1-48). (Mr Dwyer later gave evidence confirming his notes of the conversation to that effect (Record Book 1172 - 1173; ts 3-61 to 3-62).)

48. Senior counsel for Hays took the plaintiff to a description of the incident contained in a notice of claim for damages dated 8 February 2021. This was, broadly speaking, consistent with the plaintiff's evidence as elicited in examination-in-chief. It provided:

“The worker [ie the plaintiff] tipped one of the bins onto its side and pulled the bin bag, sliding it out of the bin onto the paved concrete floor. Having done that bin he got a second bin and did the same thing. Only when he was part-way through pulling the bag out of the bin a wasp flew out from the bin towards him, landing on his arm, which startled him causing him to take a step backwards. As he did so, he fell over the first bag he had pulled out and left on the floor. The worker fell and landed on his left elbow causing a fracture and dislocation to the elbow” (ts 1-48).

49. The plaintiff said that the description was correct (ts 1-49). The plaintiff accepted that he could not point to any occasion where, prior to making the claim, he had said that the bag he tripped over was from a bin he had already dealt with as opposed to a bag he was dealing with at the time (ts 1-49). Senior counsel for Hays then took the plaintiff to a series of statements he made in the course of treatment for his injury (ts 1-49 to 1-50). One of those statements was made to an orthopaedic surgeon, Dr Peter Boys. The plaintiff consulted Dr Boys in June 2022. Dr Boys recorded the plaintiff as stating that:

“[The plaintiff] confirms that on 24.02.2019, there was a very heavy bag of rubbish in a wheelie bin. [The plaintiff] states that he was obliged to lay the bin on its side to slide the rubbish bag out. This gentleman states that at that point, he was conscious of a wasp flying in. This insect ultimately stung [the plaintiff] on the left wrist. He describes over balancing awkwardly across the bag, falling to concrete.” (Record Book 503; ts 2-25.)

50. The plaintiff did not recall saying that to Dr Boys. However, the plaintiff accepted that when he spoke to medical practitioners in connection with the litigation he had done his best to tell them his truthful recollection. There was no reason why the plaintiff would have told Dr Boys anything other than his truthful recollection (ts 1-50).

51. The plaintiff was taken to a photograph of the accident site behind The Hub. This photograph became Exhibit 4. A copy of Exhibit 4 is reproduced below:

52. The plaintiff said that the photograph being Exhibit 4 did not depict the location of the wheelie bins and the rubbish bags at the time he sustained his injury. He said that not all four bags were out of their wheelie bins. When asked to clarify how many rubbish bags were out of the bins the plaintiff said that he 'would have been on [his] second' so that there was only one bag out (ts 1-51 to 1-52). There was then an exchange as follows:

“Right. So there was only one bag out?‑‑‑Yep.

And you were sliding the second bag out?‑‑‑Yes.

I see. Now, you said earlier in your evidence-in-chief there might have been two or three. You‑‑‑?‑‑‑Yeah.

Well, are you now saying you have a clearer recollection, and there were only two?‑‑‑No. There was two or three that - it was either my second or my third bag that I was doing.

I see. So you're not sure whether it was your second or your third bag.”

53. The plaintiff was asked to identify where he was standing by reference to the photograph in Exhibit 4. The plaintiff described his position as being between the second and third rubbish bag. He marked his position with an 'X'. His back would have been to the photographer (had the photo been taken at that point) and the opening of the bin was also facing the position where the photographer would have been standing. The plaintiff said that he was pulling the rubbish bag straight back towards himself rather than in an arc whereby the bag might end up behind him. However, the plaintiff said that the 'bins were a lot more forward' than as depicted in the photograph. The plaintiff also identified 'around' where the rubbish bag he tripped over was located. The plaintiff repeated that everything in the photograph was 'moved' (ts 1-53 to 1-55).

54. The plaintiff confirmed that he was crouching or on his haunches or in a squatting type position as he dragged the bag out of the bin (ts 1-60).

55. Under further questioning, the plaintiff confirmed in relation to the photograph being Exhibit 4 that (ts 1-54):

The red 'X' was where he was standing.

The two green and two yellow roughly dashed lines represented where the wheelie bins started.

The green scribble at the very bottom of the photograph represented where the rubbish bag the plaintiff tripped over was located.

56. Senior counsel for Hays then questioned the plaintiff about pulling out the first, second and third rubbish bags (if indeed it was the third rubbish bag that he was pulling out). Senior counsel for Hays suggested there was an inconsistency between what had been said in prior statements as to the alignment or orientation of the bins and the plaintiff's testimony. The plaintiff denied any inconsistency (ts 1-54 to 1-55).

57. The plaintiff was then taken to a version of the photograph in Exhibit 4 as prepared by his solicitors. This also identified the plaintiff's approximate location when emptying the next bin and the approximate location of the bin that the plaintiff tripped over. The plaintiff accepted that he instructed his solicitors as to those locations. It was put to the plaintiff that these locations previously identified were not in the locations as drawn in Exhibit 4. The plaintiff said that they were 'pretty close'. This earlier photograph became Exhibit 5 (ts 1-56 to 1-57).

58. A copy of Exhibit 5 is reproduced below:

59. The plaintiff denied that he was not sure what he tripped on (ts 1-60). He said that he pulled the rubbish bag out between his legs. The wasp startled him when the bag was 'probably halfway out'. The plaintiff was walking and dragging the bag backwards. The wasp flew at the plaintiff and he stepped back. The plaintiff said 'most definitely' that it was not the case that his foot clipped the bag he was sliding out and that is what caused him to fall (ts 1-61).

60. Senior counsel for Hays then returned to the photograph of the accident scene. There was an exchange as follows:

“Well, I'm required to put to you what we say happened on that day, and we say that in relation to the positioning of the bins, the bag-liners and the Toyota utility, that photograph represents their locations at the time of your incident?‑‑‑Not their exact locations, no.

Now, if you look carefully at the photograph, you can see that the three bins from the right-hand side moving left all appear to have their lids shut and liners in them; you see that?‑‑‑Yep.

Okay. And then the last bin, the one on the left, has its lid open, and there appears to be a bin-liner over the edge of it, but it doesn't seem to have been flared out or bloused out over the top like the others; you see that?‑‑‑Yep.

So what I put to you is that the bin on the left is the bin that you were sliding the bag out of when you had your fall?‑‑‑No, that's not correct.

And what I put to you is that you slid the bag to approximately the location of the bag we see at the left of the photo directly underneath the right-side tail light of the Toyota?‑‑‑Absolutely not.

And what I put to you is there is absolutely nothing behind that bag for you to trip on; what do you say to that?‑‑‑In relation to the one that - where it's pictured in this photo?

Yeah?‑‑‑I'd say there is nothing to trip over.

And on the day in question, what happened was you tripped on that bag - the one in the left - underneath the right-hand side tail light. You tripped on it when you were startled by the wasp?‑‑‑Absolutely not. No way.

None of the bags in the photograph or certainly the three bags in the foreground of the photograph - we can't quite see all of the bag that's under the Toyota's tail light, but the three bags in the foreground of the photograph, none of them appeared in this photograph to have any tears or rips or even indentations in them suggestive of someone having fallen over them; do you see that? You agree with me?‑‑‑What's that?

Well, you tell us what you say that is?‑‑‑That looks like there's a little tear there.

Right. Would you agree it looks like there's actually something that’s poked from the bag outwards?‑‑‑It's hard to tell.

Now, the bag that's underneath the right-side rear tail light of the Toyota, it looks like it's been pushed down from the top, you see that? It looks quite like there's been some force exerted on the top; do you see that?‑‑‑Yeah.

Would you accept that the force that exerted that was you falling over that bag?‑‑‑No.” (ts 1-61 to 1-62)

The plaintiff's case at trial and the defendants' responses thereto

61. The plaintiff's case at trial was advanced consistently with his pleaded case as to the incident. The plaintiff confirmed as much at the appeal hearing. See plaintiff's submissions pars 20 - 21 (Hays appeal); plaintiff's submissions pars 20 - 21 (Civeo appeal).

62. In opening the plaintiff's case, senior counsel for the plaintiff described the mechanism of the injury as involving the plaintiff tripping over a bag of rubbish after stepping backwards while attempting to empty a wheelie bin (ts 1-5). More specifically, senior counsel for the plaintiff stated:

“[The plaintiff] tied the top of the bag in the first wheelie bin, put it on its side, and dragged or pulled the bag or bin liner out from it. He placed a fresh bag or bin liner into the wheelie bin and then stood it back upright. [The plaintiff] will tell you that he can't be exactly sure or certain as to how many bags had been removed prior to the incident occurring. The best he can say is that he believed some one or two bags had been removed from the wheelie bins as at the point the subject incident occurred.

At the relevant time, [the plaintiff] proceeded to pull the bag or liner out, a wasp flew out of the bin, startled him, and indeed landed on his left arm, slightly above the wrist. He was startled, stepped backwards, and as a result, fell over a bag he had previously removed from a wheelie bin. He landed on his left elbow (ts 1-5 to 1-6).” (emphasis added)

63. The plaintiff closed conformably with his opening.⁵ The plaintiff accepted that there was a dispute over how the incident occurred (plaintiff's WS par 8). Given Civeo's pleaded admission that the plaintiff tripped and fell over a rubbish bag left on the ground, the plaintiff characterised the dispute as being, so far as Hays was concerned, whether the plaintiff tripped over a rubbish bag he was pulling, carrying or manoeuvring rather than a bag he had left on the ground (plaintiff's WS pars 7(a), 9). In oral submissions, counsel for the plaintiff said that the primary judge should not accept that the photograph (ie the photograph that grounded each of Exhibit 4, Exhibit 5 and Exhibit 16) depicted the accident scene at the time of the accident (ts 2‑92 to 2-96). So far as there were inconsistencies between the markings of relevant places in Exhibit 4 and Exhibit 5, counsel submitted that the plaintiff's marking in Exhibit 5 was more likely due to it being the earlier in time (with Exhibit 4 being five years after the event) (ts 2-95 to 2-96).

64. Hays reiterated its pleaded case as to the incident in its closing submissions at trial (Hays WS⁶ par 11). Under the heading '[d]id the incident occur as pleaded?', Hays observed that the plaintiff bore the onus of proving that the incident occurred as pleaded in par 13 of the SOC (Hays WS par 13). Hays then developed how the plaintiff's evidence differed from his pleaded case and why the court ought not be satisfied that the incident occurred as pleaded. This included that the plaintiff was directly contradicted by the photographic evidence (Hays WS pars 15(c), 32 - 39). Hays submitted that the plaintiff's claim must be dismissed if his version of the incident was not proved to the requisite standard (Hays WS par 54).

65. In oral closing submissions, senior counsel for Hays contended that it was for the plaintiff to prove his pleaded case as to the incident and that the plaintiff had not done so (ts 2-40, 2-42, 2-52, 2-57). Senior counsel developed that submission by reference to, among other things, the photographic evidence. In relation to the photograph that grounded each of Exhibit 4, Exhibit 5 and Exhibit 16, senior counsel for Hays submitted that the photograph was consistent with what Hays said was the 'far more likely explanation', namely, that bag 4 was the bag the plaintiff was dealing with and the bag that he fell on (ts 2-53 to 2-54). Senior counsel submitted that the primary judge should accept that the photograph depicted the accident scene at the time of the accident and completely contradicted the plaintiff's case (ts 2-56).

66. In closing, Civeo submitted that the wasp did not come from the bin that the plaintiff was attending to; it came from a bin that the plaintiff had emptied earlier. Counsel for Civeo developed the submission in oral submissions. As developed, the submission was that the likelihood was that the plaintiff had tripped and fallen over a rubbish bag he had previously removed from a bin (ts 2-24). Counsel relied on the photographic evidence which was said to depict the accident site undisturbed (ts 2-24 to 2-25). Counsel said that the primary judge should find, based on the photographic evidence, that the plaintiff had in fact dragged four rubbish bags out of the wheelie bins (ts 2-25).

The primary judge's findings as to the incident

69. The primary judge seemingly accepted that the plaintiff was assigned to empty wheelie bins at the back of The Hub [36].

70. This was the first occasion the plaintiff had removed rubbish from behind The Hub. The Hub is a pub gathering area. At the time the village kitchen was inoperable. Cooking for the accommodation village was being undertaken on barbeques at The Hub. As a result the wheelie bins at the back of The Hub were full of food waste and heavy. The plaintiff drove his work utility to a position just behind The Hub near the wheelie bins at around 10.30 am. The tray of the plaintiff's utility was facing The Hub [36] - [37], [84].

71. At trial Hays contended that the plaintiff should not be regarded as a witness of credit or, at the least, ought not to be regarded as a reliable witness.

72. The primary judge was conscious that the plaintiff had been inconsistent in various aspects of his evidence [61] - [63], [66], [73], [80] - [82], [88] (see also [95]). One of the more significant inconsistencies was that the plaintiff had given different versions of which rubbish bag he tripped on. The primary judge also referred to a 'discrepancy' between the plaintiff's evidence and his Honour's finding (which we will come to) that the plaintiff had taken four bin liners from the wheelie bins and left them on the ground prior to the incident [41] (see also [61], [91] - [93], [97] - [99]). The primary judge identified various deficiencies in the plaintiff's evidence that adversely affected his credit [67], [68], [70], [75]. The primary judge also acknowledged that there were issues as to the reliability of the plaintiff's evidence [71], [75] - [76], [82]. In the latter respect his Honour went as far as to describe the plaintiff as not being an 'entirely reliable historian' [82] and rejected various aspects of the plaintiff's evidence.

73. Specifically, the primary judge rejected the plaintiff's evidence to the effect that:

Exhibit 16 (the photograph showing the rubbish bags on the ground at the back of The Hub) did not show the accident site as it was when he was injured [41], [87].

The position of the wheelie bins at the time of the accident, and where the plaintiff fell, was as shown in the plaintiff's markings on Exhibit 4 [88], [98]. (Exhibit 4 was the photograph of the accident site which was marked up by the plaintiff in the course of his cross-examination).

The plaintiff had taken two or three rubbish bags out of wheelie bins at the time of the accident (ie all four rubbish bags were not out of the wheelie bins at the time of the accident) [92].

74. Nonetheless, while accepting that there were matters that, in combination, affected the assessment of the plaintiff's credibility and reliability, the primary judge considered that the plaintiff should be accepted as a 'generally' honest witness and a 'mostly' reliable witness. The primary judge preferred the 'objective or earlier evidence' as to what occurred where such evidence was available. His Honour considered it to be appropriate to be cautious of the plaintiff's evidence 'more so on the basis of reliability rather than honesty' [75].

75. Importantly, the primary judge accepted the plaintiff's evidence as to how the accident occurred 'in a general sense' [66] (see also [64], [75], [95]).

76. The 'basic version' was that, while the plaintiff was engaged in emptying wheelie bins, he placed tied rubbish bags on the ground. A wasp came towards the plaintiff from a bin he had emptied. The wasp stung the plaintiff on his left inner forearm or wrist. The plaintiff stepped back and fell after tripping on a rubbish bag. See [95], [100](j), [118]. The primary judge said of this basic version that it was a 'sufficiently consistent version of the incident that I consider to be truthful and accurate' [95].

77. In making factual findings as to the circumstances of the plaintiff's injury the primary judge relied heavily on Exhibit 16. His Honour referred to the photograph as being 'important' [97] (see also [85]). Exhibit 16 is a clean copy of the photograph of the scene of the accident. That photograph is reproduced immediately below. It will be seen that Exhibit 4 and Exhibit 5 are based on the photograph in Exhibit 16.

78. Exhibit 16 shows four wheelie bins (all standing upright) and four bin liners full of rubbish (all lying on the ground). The primary judge referred to the bins and the rubbish bags, from right to left, as bin (or bag) 1 - 4. The bin and bag to the far right of Exhibit 16 is bin 1 and bag 1; the bin and bag to the far left of Exhibit 16 is bin 4 and bag 4.

79. It is apparent from Exhibit 16, and the primary judge found, that wheelie bins 1 - 3 had been completely emptied, re-lined and stood up with their lids closed. Bin 4, by contrast, had been stood up; but its lid was fully open. A bin liner was hanging over the top of the bin cavity [90], [93], [99] (it is difficult to see the bin liner; but it may be made out to the left-hand top of the bin cavity). The rubbish bag from bin 4 had been removed and placed on the ground [91].

80. There was a partial deformity to bag 4 [89].

81. The primary judge found that the photograph in Exhibit 16 was taken 22 minutes after the accident [41], [87], [98]. The primary judge also found that the photograph in Exhibit 16 showed the wheelie bins and the rubbish bags in the position that they were in immediately following the plaintiff's accident and that the scene had not been disturbed by any person (other than the introduction of a buggy tray to the right of the accident scene) [41], [98].

“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.

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 [the plaintiff's solicitor's description of the accident] 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.

…

The photograph of the accident scene, Exhibit 16, is important. It does show four bins standing upright. Bin 4 on the lefthand side is open, empty and contains an unused garbage bin liner sitting unfolded on the top of the bin. The other three bins have been completely emptied and new garbage bin liners placed within the bins. It seems to me that this strongly suggests that the plaintiff had in fact emptied bin 1, the bin on the far right, and then moved towards the left to empty and re-line the second bin and then the third bin, and the incident which he has described occurred after he had removed the full bin liner from the fourth bin, but had not yet replaced the bin liner in the fourth bin.” (emphasis added)

85. The primary judge made factual findings as follows (in so doing suggesting that he was '[a]ccepting most but not all of the plaintiff's evidence as to the circumstances prior to, and at the time of the incident' [100]):

On 24 February 2019, before 10.30 am, the plaintiff was instructed to remove bin liners full of rubbish from the wheelie bins behind The Hub [100](f).

The plaintiff attended to the four wheelie bins at the back of The Hub - those bins being as shown in Exhibit 16 [100](g).

After opening the first wheelie bin, the plaintiff realised that the liner bags full of rubbish were too heavy and he would need assistance to lift the bags [100](g).

Soon afterwards the plaintiff spoke with a female co-worker who was driving by in a buggy. The female co-worker came to the plaintiff's assistance. However, having tried to lift a bag up, the female co-worker said words to the effect: 'These are heavy. We'll pick them up on the way back' [100](g).

The plaintiff continued his work as he had been trained to do - the plaintiff removed the bin liners from the three remaining wheelie bins and left the rubbish bags on the ground in a position as indicated in Exhibit 16 [100](h).

After the plaintiff removed the fourth bin liner from the fourth wheelie bin, placing it on the ground, a wasp came from within or from the vicinity of the fourth bin towards the plaintiff, causing him to step backwards [100](i).

The wasp stung the plaintiff on his left inner forearm [100](j) (although elsewhere the primary judge referred to the plaintiff being stung on the left inside wrist [118]).

As the plaintiff was moving backwards, away from the wasp, the plaintiff tripped on the rubbish bag from the third wheelie bin, fell to the ground, and suffered injury to his left elbow [100](k).

86. As we have mentioned, the findings at primary reasons [93] and [94] (see [84] above) are challenged as part of Issue 2. So are the findings summarised at [85](5), (6) and (8) above.

87. It is convenient, at this point, to contrast aspects of the primary judge's factual findings, on the one hand, and, on the other hand, the plaintiff's case as expressly pleaded and advanced at trial together with his evidence. Relevantly:

The primary judge found that the photograph in Exhibit 16 depicted the accident scene at the time of the accident. However, the plaintiff gave evidence, in effect, that the photograph did not depict the location of the wheelie bins and the rubbish bags at the time he sustained his injury. Also, the markings on Exhibit 4 as made by the plaintiff in the course of his evidence were inconsistent with the primary judge's finding that the photograph depicted the accident scene essentially undisturbed.

The primary judge found that the plaintiff emptied the wheelie bins moving from right to left (viewed from the perspective of the photograph). The order in which the plaintiff emptied the bins was not part of his pleaded case; nor did the plaintiff deal with the matter expressly in his evidence. However, Exhibit 5 was prepared on the basis that the plaintiff had moved from left to right. In his evidence the plaintiff accepted that he instructed his solicitors as to the locations depicted in Exhibit 5.

The primary judge found that the wasp flew out of wheelie bin 4 and that the plaintiff had emptied each of the four bins before the accident. However, at par 13(h) - (j) of the SOC the plaintiff pleaded, relevantly and in effect, that the accident occurred as he was removing a rubbish bag from the second wheelie bin (when the wasp flew out of the bin). The plaintiff's evidence-in-chief was largely consistent with the pleaded case (although he did admit to the possibility that two bags had been removed from the wheelie bins rather than one). In cross-examination the plaintiff said that he was on his second or third bag and expressly rejected the proposition that all four bags had been removed from their respective wheelie bin.

The primary judge found that the wasp flew out of wheelie bin 4, startling the plaintiff and causing him to step backwards, after the plaintiff had emptied wheelie bin 4, stood it back up and placed the bin liner on the top left-hand corner of the bin. That sequence is inconsistent with the plaintiff's pleaded case and evidence as summarised in sub-par (3) above. Specifically, it is inconsistent with: (a) the plea that the wasp flew out of the second bin, startling the plaintiff, while the plaintiff was proceeding to pull the bag out of that bin (SOC par 13(i)); and (b) evidence given by the plaintiff in examination-in-chief and cross-examination to that effect.

The primary judge found that the plaintiff stepped back and tripped on rubbish bag 3 causing him to fall over onto his left elbow. However, the SOC referred to the plaintiff falling over the first bag of rubbish (SOC par 13(j)). In evidence the plaintiff was equivocal about identifying the specific rubbish bag that he had tripped on (although adamant that it was not the bag that he was dragging out from the wheelie bin that the wasp flew out of).

88. The third, fourth and fifth matters indicate another difference. The plaintiff's evidence was to the effect that he was startled by the wasp while crouching or in a squatting type position. The plaintiff's body position immediately prior to his trip and fall was unpleaded. However, while there is not an express finding on the part of the primary judge, it is implicit in the factual findings as made that the plaintiff was standing erect at the fourth wheelie bin when startled by the wasp (having placed the bin liner in the top left-hand corner of the wheelie bin).

89. While, in these respects, there are a number of specific differences between the primary judge's factual findings as to the incident and the detail of the plaintiff's case and his evidence, there is nonetheless a substantial congruity between the factual findings made by the primary judge and the key material facts relied on by the plaintiff in his claims against Hays and Civeo. In substance, the primary judge found that, when startled by a wasp while performing work duties involving waste and rubbish removal and disposal, the plaintiff fell onto his left elbow having tripped on a rubbish bag left on the ground after it was removed from a wheelie bin. The interaction with the wasp saw the plaintiff move backwards whereby he tripped on a rubbish bag he had pulled out from a wheelie bin. The plaintiff fell over onto his left elbow.

90. Hence why it was that the primary judge stated that he accepted as truthful and accurate 'the basic version of emptying bins, placing bags upon the ground, a wasp coming towards [the plaintiff] from a bin he emptied, and [the plaintiff] stepping back and falling after tripping on a bag' [95].

91. The primary judge's factual findings as to the incident were consistent with the appellants' respective cases at trial in a number of respects. First, the primary judge accepted that the photograph in Exhibit 16 relevantly depicted the accident scene as at the time of the accident. Hays and Civeo both relied on the photograph as an accurate depiction of the accident scene at the time of the accident. Second, the primary judge accepted that the accident occurred after the plaintiff had emptied all four wheelie bins of their rubbish bags. However, the primary judge rejected Hays' contention that the plaintiff fell or tripped over the fourth rubbish bag as he was sliding that bag out of its wheelie bin. The primary judge's finding, to the contrary, that the plaintiff tripped on the third rubbish bag, was consistent with the admission in the Civeo Defence that the plaintiff fell over one of the rubbish bags he had removed from the wheelie bins and left on the ground (albeit that apparently leave had been granted to withdraw the admission).

Issue 1 - the alleged denial of procedural fairness

The parties' submissions

92. The appellants alleged that there had been a denial of procedural fairness because the case had been decided against them by the primary judge making factual findings that were inconsistent with and directly contradictory of the plaintiff's pleaded case and his evidence. The appellants contended that the impugned factual findings were not part of any party's case at trial and were made without the primary judge having raised the possibility of such factual findings being made.

93. It was said that no party would have had within its contemplation that submissions were required to address the version of the facts as found by the primary judge - it being a version that was not propounded by any party or any witness.

94. In particular, Hays submitted that the primary judge rejected the plaintiff's version of how the incident occurred. In those circumstances, according to Hays, the primary judge ought not to have sought to reconstruct events. Instead the case should have been dismissed. Alternatively, the primary judge's hypothesis should have been raised with the parties. The parties might then have given consideration to whether any evidence was required to meet that hypothesis or what submissions might be made in answer to it. Hays said that the primary judge's hypothesis required the plaintiff to have taken more than one step backwards. Hays suggested that evidence as to the number of steps may have had a bearing on questions such as the foreseeability of risk, the reasonable precautions to be taken against the risk, the likelihood of the event occurring and contributory negligence.

95. Senior counsel for Civeo put the contention succinctly when addressing Issue 2. Senior counsel submitted, in substance, that the appellants did not have a proper opportunity to address the inferences drawn and scenario found by the primary judge. This was because it was thought that the contest was between the plaintiff's account and the versions provided by others. The scenario as found was said to be something that was not addressed by the parties as a possible scenario from among the competing hypotheses that were explored at trial. There was, for example, no testing in cross-examination as to whether the accident occurred when wheelie bin 4 was upright at a time when the plaintiff was standing up rather than crouched down dragging a rubbish bag out of a bin.

96. The plaintiff said that his evidence as to the incident was consistent with his pleaded case. That much should be accepted. From there the plaintiff contended that the primary judge's findings were consistent with the essence of the plaintiff's case as pleaded and his evidence. The plaintiff characterised the appellants as complaining about the primary judge's determination of factual matters that were collateral to the material fact in issue as to liability. The material fact was, according to the plaintiff's argument on appeal, whether the plaintiff tripped on a rubbish bag left on the ground after it was removed from another wheelie bin. In that respect the number of bags on the ground at the time, and identification of the specific bag that the plaintiff tripped on, was said to be immaterial. The plaintiff said that what was critical was whether there was more than one bag of rubbish on the ground at the time that the incident occurred.

The authorities

98. All courts are obliged to afford procedural fairness to parties to a proceeding: HT v The Queen.¹⁰ But to say that a court is obliged to afford procedural fairness is only the first step of analysis. The second step is to identify the content of the requirements of procedural fairness. It is the second step that is critical in most cases: Kioa v West.¹¹

99. One aspect of procedural fairness is that a person against whom a claim is made must be given a 'reasonable opportunity' of being heard, ie of appearing and presenting its case: HT v The Queen [17]. In HT v The Queen Kiefel CJ, Bell and Keane JJ explained that as a corollary:

“In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made [17].” (citations omitted)

100. A closely related rule was stated by McHugh J in Re Refugee Review Tribunal; Ex parte Aala:

“[A] decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.”¹²

101. McHugh J was in dissent in Ex parte Aala. His Honour differed in the ultimate outcome based on discretionary grounds. However, there is no doubt as to the correctness of McHugh J's statement of principle as reproduced immediately above. Also, while the statement was made in the context of administrative decision-making, it is equally applicable to curial decisions.

102. At the core of the requirement to afford procedural fairness is that a party whose interests are liable to be affected by a decision must be put on notice of the case against it and given an opportunity to respond. Accordingly, for present purposes, procedural fairness required that the appellants first be put on notice of what was to be determined by the primary judge at the trial; and, having been given notice, that the appellants then be given a reasonable opportunity to be heard by presenting their respective cases by evidence and submissions.

103. However, the rules of procedural fairness do not have immutably fixed content. The content of procedural fairness will vary according to the circumstances of the particular case. Procedural fairness is essentially practical; it is not an abstract concept. The concern of the law is the avoidance of practical injustice. What is necessary to avoid practical injustice will depend on the circumstances. See Ex parte Lam [37]; HT v The Queen [18].

104. The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court and the legislation and rules which govern them: Assistant Commissioner Condon v Pompano Pty Ltd.¹³ In a civil case, the procedural fairness requirement that a party be adequately informed of the case against it is ordinarily satisfied by pleadings: Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd.¹⁴

105. Pleadings have two main functions. First, to define the issues for decision so that the court can control the preparation of the case and the conduct of the trial. Second, to ensure a fair trial by putting the other party on notice of the case to be met. In the latter respect, the function of a pleading is to state the case that must be met with 'sufficient clarity': Banque Commerciale SA (286).

106. It follows from the procedural fairness aspect that attends the function of the parties' pleadings that, as a general rule, relief is confined to that available on the pleadings: ; ; (286 - 288), (302 - 303).

“[P]leadings serve 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. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.” (286 - 287)

109. Their Honours go on to explain that, ordinarily, the question of whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted (287).

110. In written and oral submissions the appellants relied heavily on the High Court of Australia's decision of Suvaal v Cessnock City Council.¹⁹

111. In Suvaal the appellant was riding a bicycle along a road in the respondent council's municipality. The appellant lost control and crashed heavily into a gully. The appellant's case was that an unidentified driver forced him off the road. He encountered potholes at the left-hand edge of the road surface. The appellant sued the Nominal Defendant. He also sued the respondent council for failing to sufficiently maintain the road edge. At trial the appellant refused to answer questions on any assumption other than that a car forced him off the road.

112. The trial judge, Master Harrison, rejected the appellant's version of events. The master concluded that the accident occurred when the appellant lost concentration rather than being hit or brushed by an unidentified motor vehicle. This caused the appellant to move to the left of the road and strike the uneven surface at the edge of the road. The claim against the Nominal Defendant was dismissed as no vehicle was involved in the accident. However, judgment was entered against the respondent council.

113. The judgment in favour of the appellant against the respondent council was set aside on appeal. The New South Wales Court of Appeal held that the master had no proper basis for finding in favour of the appellant following the rejection of the appellant's case regarding the unidentified driver. In the High Court the issue was the entitlement of the master to find in favour of the appellant on the basis of a version of events that the appellant did not advance and expressly rejected. By majority the High Court upheld the decision of the Court of Appeal. The majority comprised Gleeson CJ together with Heydon and Callinan JJ. Callinan J wrote separately. Gleeson CJ and Heydon J agreed with Callinan J's reasons and published their own further reasons for dismissing the appeal. McHugh and Kirby JJ dissented.

114. Gleeson CJ and Heydon J held that the alternative explanation for the appellant's presence on the road edge, as found by the master, was outside the pleadings [20], [23]. Such an alternative case was not in issue at trial [24], [35]. The master was said to have rationalised the circumstances so as to generate a possible explanation for the accident which was not directly supported by any matter that emerged in the course of the trial - an explanation that the respondent council did not have an opportunity to deal with in cross-examination of the appellant [37]. Their Honours stated:

“A trier of fact, confronted with divergent cases being advanced by the parties, may decline to accept either case and may proceed to make findings not exactly representing what either party said. But that does not justify the creation of an entirely new case with which the losing party had no testimonial or other evidentiary opportunity to deal.” [36] (citations omitted)

115. In short, it was impermissible for the master to reach conclusions about the cause of the accident which the appellant had rejected and which the appellant had prevented the respondent council from testing [17] (see also [16]).

116. Callinan J stated that, as an operative cause, momentary inattention seemed to have been 'entirely the invention' of the master [145] and no more than a 'rationalisation of what occurred' [149]. It was not an issue in the case. Callinan J stated:

“[T]he Court of Appeal had no option but to allow the appeal. The approach of the master was an incorrect one. She seemed to think that, rather than decide whether the appellant had proved the case that he sought repeatedly to make at the trial and which she concluded she was bound to reject, she was obliged to find some other explanation for the accident. This was to misunderstand the nature of the task she had to perform.” [144]

117. Callinan J said that the respondent council was not to know or suspect that momentary inattention might be found as the cause of the accident. Had that been raised at trial the appellant would no doubt have been cross-examined about it. But, the appellant having asserted only one cause of the accident, the respondent was not bound to go 'on an excursion' in cross-examination to identify and refute a version of events not even hinted at by the appellant. Callinan J identified crucial matters that the respondent had no opportunity of exploring in cross-examination or submissions [147].

118. McHugh and Kirby JJ took a different view of how the case had been litigated. In McHugh and Kirby JJ's view, there was no procedural unfairness in the master accepting a loss of concentration as the explanation for the accident - the parties were said to be 'fully aware' at trial of that hypothesis [110] (see also [117], [119]). Accordingly, McHugh and Kirby JJ's dissent was grounded in application rather than principle. As to principle, McHugh and Kirby JJ acknowledged that, where a party participates in a trial to meet a particular case - which has been pleaded and presented in only one way - it would be unfair to decide the case on a different basis of which the losing party had no fair notice and which it had no proper opportunity to defend. This is because '[i]t is elementary that a party is entitled to know the issues of fact that are to be decided in a trial where these are determinative of its success or failure' [102].

119. Suvaal v Cessnock City Council has been applied in this court in Tep v ATS Australasian Technical Services Pty Ltd.²⁰ There Holmes JA (Gotterson JA and Douglas J agreeing) stated:

“As was observed in Suvaal, it was not the trial judge's task to find an alternative explanation of how the accident could have occurred. Indeed, this was not simply a matter in which the trial judge arrived at a version of events where evidence was wanting; his finding as to the platform height contradicted both the pleadings and the direct evidence from both parties.” [24]

120. Tep concerned a claim for damages for personal injuries in respect of a workplace accident. The appellant had been standing on a mobile scaffold removing asbestos. A guard rail gave way. The appellant fell backwards onto a concrete floor below. The appellant's evidence was that the scaffold platform was 1.5 m to 1.7 m above the floor. That estimate was in accordance with the respondent's pleading and evidence. The defence was based on whether the appellant was standing on the guardrail when he fell. However, contrary to the pleadings and the evidence, the trial judge found that the platform was only 0.5 m above the floor.

Disposition of Issue 1

121. The appellants' argument on Issue 1 focused on the detail of the factual findings compared to the detail of the appellant's pleaded case and his evidence. That, in our view, is too demanding an approach where the question of whether there has been a denial of procedural fairness is concerned with whether there has been actual unfairness or practical injustice. Issue 1 must instead be approached as a matter of substance having regard to the material fact for determination at trial in the context of the pleadings, the evidence and the trial as a whole.

122. There was some appreciation of this at the appeal hearing. The senior counsel for each appellant accepted, in effect, that the apparent inconsistency in the bag numbers was not dispositive of Issue 1 (appeal ts 1-6, 1-21, 1-25). That concession was correct. In any case we would not read and construe the pleas in par 13(h) - (j) of the SOC in so prescriptive a manner as to suggest that the plaintiff's claim was confined to a personal injury resulting from tripping on 'bag 1' when startled by a wasp flying out of 'bin 2'. The SOC is not referring to 'one bin', 'the second bin' and 'the first bag' in the same way as the primary judge designated the wheelie bins and the rubbish bags as photographed in Exhibit 16. The pleading is simply referring to the bins and the bags in a relational sense. That was made clear by senior counsel for the plaintiff in opening the case and foreshadowing the expected evidence of the plaintiff.

123. So far as the mechanism of the plaintiff's injury was concerned, the material fact for determination was obscured by the narrative style of the plaintiff's pleading in par 13 of the SOC. However, that pleading deficiency was addressed at the outset of the trial. Senior counsel for the plaintiff opened the case on the basis that the mechanism of the injury involved the plaintiff tripping over a rubbish bag after stepping backwards while emptying a wheelie bin. That, in substance, adequately framed the material fact in issue for determination at trial. The material fact in issue for determination at trial was whether the plaintiff tripped over a rubbish bag after stepping backwards while emptying a wheelie bin.

124. It is possible to refine the material fact in issue. Senior counsel for Hays accepted the following formulation: 'When startled by a wasp, did the plaintiff fall on his left elbow having tripped on a bag of rubbish left on the ground after it was removed from another wheelie bin?' (appeal ts 1-9). Senior counsel for Civeo provided a narrower statement of the relevant question, namely: 'Whether the trip occurred on a bag that was already deposited and therefore constituted a trip hazard?' (appeal ts 1-43). The variations accepted and advanced on behalf of the appellants do not differ in substance from the material fact for determination as articulated by senior counsel for the plaintiff in opening the case at trial.

125. The primary judge identified the material fact in issue for determination. It was described in shorthand as 'what occurred in the incident' [35]. His Honour accepted the plaintiff's evidence as to how the incident occurred 'in a general sense' [66]. This was the 'basic version' of emptying wheelie bins, placing rubbish bags on the ground, a wasp coming towards the plaintiff from an emptied bin, and the plaintiff stepping back and falling after tripping on a rubbish bag [95].

“Generally speaking in litigation, the parties must anticipate combinations and permutations of various findings and adduce evidence and make submissions at the trial on all the potential findings of fact on the issues litigated … [although] procedural fairness may require the judge to hear the parties further if certain matters emerge in the judge's consideration of the case after trial which the judge regards as potentially dispositive but in relation to which, in all the circumstances, it is to be inferred that the parties did not have a proper opportunity to address at trial.”²⁵

133. It may be necessary, in a particular case, for a proposed conclusion to be disclosed and for a litigant likely to be adversely affected by that conclusion to be given an opportunity to make submissions on that adverse conclusion. That may be the case where the adverse conclusion 'could not reasonably be expected': Victims Compensation Fund Corporation v Nguyen;²⁶ or the adverse conclusion would not 'obviously be open' on an evaluation of the material known to be before the decision-maker: Commissioner for ACT Revenue v Alphaone Pty Ltd (592). These are situations where, to use McHugh J's words in Ex parte Aala, the risk of such an adverse conclusion does not 'necessarily inhere' in the issues to be decided.

134. Whether the circumstances require that the decision-maker raise a proposed conclusion with the parties involves matters of degree in the exercise of evaluative judgment.

135. The appellants complained about the primary judge giving judgment for the plaintiff in circumstances where his Honour found that the incident occurred inconsistently with the version given in evidence by the plaintiff. Two initial points should be made. First, the primary judge accepted the plaintiff's evidence as to how the incident occurred 'in a general sense' [66] and specifically accepted the plaintiff's 'basic version' of the incident [95]. No ground of appeal expressly challenges those findings. Second, for reasons already given, there was no denial of procedural fairness in the primary judge accepting the 'basic version' of the incident having accepted the plaintiff's evidence as to how the incident occurred 'in a general sense'.

136. Senior counsel for Hays accused the primary judge of parsing the plaintiff's evidence by severing material aspects of it and distorting its substance to arrive at a version of the incident that was never pleaded and in any case was a version that was rejected by the plaintiff (compare Suvaal [14]). We disagree. The substance of the plaintiff's evidence was that, when startled by a wasp, he stepped backwards and tripped on a rubbish bag he had left on the ground. The primary judge accepted that evidence. The primary judge rejected other aspects of the plaintiff's evidence as to the incident where that evidence was inconsistent with inferences arising from the objective circumstances as discerned from the photograph in Exhibit 16. In the latter respect it was entirely orthodox for the primary judge to reason to a conclusion based on objectively established facts and the apparent logic of events. It was also entirely orthodox for the primary judge to accept one aspect of the plaintiff's evidence but reject another. To do so did not involve a distortion of the kind in - one where the respondent council was given no opportunity to deal with an entirely new case created by the master's rationalisation to explain the accident.

“HIS HONOUR: … can I drag you back to this photo [Exhibit 4] … what inferences do I draw from it? That's what I'm really interested in. It seems to me, you have to draw [sic] he'd in fact dragged out four bags. I think - - -

COUNSEL: Yeah.

…

COUNSEL: … the bins are standing. If he's dragged them back backwards, there is no risk until the wasp stings him, or he gets frightened by the wasp …

…

HIS HONOUR: Well, is there any other submissions on the exhibit - well, it's number 4. You can contrast it with the same picture as on the back of exhibit 5 and he's - I've got no difficulty accepting your submission he's been inconsistent in his versions.

COUNSEL: Grossly inconsistent.

HIS HONOUR: It's pretty plain. But it still seems to me, the parties are engaged on this factual dispute as to what actually occurred. And it seems to be no - little doubt that he fell, badly injured his left elbow - on his version, he tripped over a bag. There doesn't seem to be a dispute that that occurred. The question is which bag? And is there anything in the exhibits 4 or 5 which can shed any light upon that.” (ts 2-26 to 2-27)

140. Counsel for Civeo accepted that it was a case 'about inferences' (ts 2-28). In context, having regard to the interchange between the primary judge and counsel for Civeo, those were the inferences that might be drawn from the photographic evidence in Exhibits 4, 5 and 16. The primary judge had mentioned one available inference - which counsel for Civeo agreed with - and expressly sought submissions on any other available inferences. Counsel for Civeo did not mention what inferences could or could not be drawn beyond pointing out that all of the bins were standing. However, counsel for Civeo did state that as between the appellants there had been a division of work and it was intended that senior counsel for Hays would cover this area (ts 2-27).

141. It has been seen that Hays developed its closing submissions by reference to the photographic evidence (see [64] - [65] above). In that connection senior counsel for Hays plainly had an opportunity to deal with the inferences that might be drawn from Exhibit 16 - even more so where that very topic had been raised by the primary judge with counsel for Civeo. For example, senior counsel observed that bin 4 had its lid open and the liner bag had not been put back in properly (ts 2-53). To the extent that this was raised, and senior counsel did not go on to suggest what inferences may or may not be drawn from this circumstance, that was a forensic decision for senior counsel rather than a denial of procedural fairness on the part of the primary judge.

142. There was, during senior counsel for Hays' oral submissions as to the photographic evidence, one interaction going directly to the impugned findings. The primary judge raised whether, based on Exhibit 4, it was likely that the plaintiff had tripped on bag 3 (the primary judge referring to the third rubbish bag as the one 'closest' or 'at the front'). Senior counsel developed a submission to the effect that it was more likely that the plaintiff fell on the bag he was dealing with (ie bag 4) (ts 2-54).

143. In the circumstances, we are unable to accept the submission that there was a denial of procedural fairness because the primary judge did not raise the possibility of the impugned factual findings at or following the trial.

144. One of the impugned factual findings - that all four wheelie bins had been emptied - was in accordance with the appellants' respective cases at trial. Otherwise, the primary judge afforded the appellants a proper opportunity to make submissions about the inferences to be drawn from the photographic evidence in Exhibits 4, 5 and 16. The appellants were invited to make submissions as to the inferences to be drawn from the photograph of the accident scene. His Honour specifically raised whether it should be inferred that the plaintiff tripped over bag 3. Each of counsel for Civeo and senior counsel for Hays had noted features of bin 4 - relevantly, that it had been stood up, but its lid remained open. Plainly it was open to each of Civeo and Hays to make submissions as to what inferences, if any, should be drawn from this circumstance having regard to the other evidence. All of this was in a context where, as the primary judge observed, the parties were engaged in a factual dispute as to what in fact had occurred in respect of the incident. Hays had cross-examined the plaintiff on the photographic evidence. Both Civeo and Hays had relied on the photographic evidence, inviting the primary judge to draw inferences adverse to the plaintiff's case.

Issue 2 - the challenge to the factual findings

153. Issue 2 is concerned with the appellants' challenge to the factual findings at primary reasons [93], [94] and [100](h), (i) and (k). Those findings are reproduced or summarised at [84] and [85](5), (6) and (8) above. Broadly speaking, they involve the primary judge's findings as to the mechanism by which the plaintiff suffered his injury.

154. In support of the grounds underpinning Issue 2, the appellants submitted:

The findings that the plaintiff tripped and fell on bag 3 after he had removed the bag from bin 4 and placed it on the ground (rather than as he was removing a bag) were unsupported by any evidence and otherwise were not inferences that could reasonably be drawn from the evidence.

The primary judge's findings based on inferences drawn from Exhibit 16 were directly inconsistent with evidence given by the plaintiff at trial. This included the primary judge's 'consistent version', which was said to be irreconcilable with the findings based on Exhibit 16.

inference that the plaintiff tripped on bag 3, as accepted by the primary judge, was no more likely than other available inferences. For example, available inferences that:

the plaintiff tripped over the very bag that he was dragging out of one of the bins;

the plaintiff stumbled as he walked backwards, causing him to fall;

the plaintiff tripped over his own feet and fell.

There was other evidence that supported such findings. In this respect, senior counsel for Civeo referred to the evidence of Mr Nash (see [44] above), Mr Corrie (see [46] above), Mr Dwyer (see [47] above) and Dr Boys (see [49] above). The appellants also referred to the multiple versions of the accident as given by the plaintiff together with the inconsistencies in the plaintiff's evidence as acknowledged by the primary judge. Having regard to these different versions the appellants criticised the primary judge's suggestion that there was a 'consistent version' from the plaintiff (see primary reasons [93]).

155. More generally, the appellants submitted that, so far as the primary judge made these factual findings based on inferences drawn from the photographic evidence in Exhibits 4, 5 and 16, those inferences were not reasonably capable of being drawn. It was said that the photographic evidence did not provide any sound or reliable basis upon which any reasonable inference could be drawn. Also, according to the appellants, the photographic evidence was directly inconsistent with the factual findings made by the primary judge. It was argued that the position of bags 3 and 4 relative to bin 4 made it unlikely that the plaintiff stepped back from accessing bin 4 and tripped over bag 3. The appellants said that it was more likely - or at least equally likely - that the plaintiff tripped over and landed on bag 4, explaining the deformity with bag 4.

156. Civeo made the point that, if the accident occurred conformably with the plaintiff's reports to the other witnesses, the plaintiff's claim must fail for want of factual causation. The breaches of duty as found could not be a cause of the fall because - on that version of the facts - the plaintiff did not trip over a bag he had left on the ground.

157. The approach to challenges to factual findings on an appeal by way of rehearing is well established. For present purposes it suffices to refer to, without reproduction, the principles recounted by Bond J in Inghams Enterprises Pty Ltd v Kim Yen Tat²⁷ and the court in Doerr v Gardiner.²⁸ There is, as those cases show, a distinction to be drawn between: (1) factual findings which are likely to have been affected by impressions about the credibility and reliability of a witness formed by the trial judge as a result of seeing and hearing the witness give evidence; and (2) factual findings based on inferences drawn from accepted facts.

158. In the former case, an appellate court should not interfere with a trial judge's factual findings unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony' or they are 'glaringly improbable' or 'contrary to compelling inferences': Robinson Helicopter Company Inc v McDermott;²⁹ Lee v Lee.³⁰ However, in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts. In deciding what is the proper inference to be drawn, an appellate court will give respect and weight to the conclusion of the trial judge. But, having reached its own conclusion, an appellate court will not shrink from giving effect to it. See . Accordingly, this court is obliged to reach its own conclusions as to any inference to be drawn from the primary facts to the extent that the correct inference is put in issue in the appeal.

Before the accident the plaintiff removed the liner bags from all four wheelie bins and left them on the ground.

The plaintiff re-stood wheelie bin 4 and placed the bin liner on the top left-hand corner of the bin.

The wasp flew out of wheelie bin 4.

The plaintiff tripped on bag 3.

169. The inferences at sub-pars 1 and 2 in the preceding paragraph are critical as they exclude the possibility - raised by Hays at trial and renewed by the appellants on appeal - that the plaintiff tripped and fell over rubbish bag 4 as he was dragging it out of its wheelie bin.

170. The photograph in Exhibit 16 depicts the accident scene as it was at the time of the plaintiff's injury (save for the buggy and the water bottle). The authorities emphasise the care that must be taken in interpreting photographic evidence. See eg Goode v Angland.³⁶ One reason for this is that photographs can be deceptive. That is particularly so in relation to perspective and distance. There is, however, no such difficulty in relation to photographic evidence in Exhibits 4, 5 and 16 and the first two inferences. The photographs of the accident scene show four rubbish bags on the ground with all four wheelie bins standing up. Wheelie bin 4, unlike the other bins, has its lid open with a bin liner that is yet to be inserted into the bin. What is depicted in the photographs ought to be evaluated in the context of the system of work the plaintiff was instructed to carry out (see [11] above). The reasonable and definite inference in the circumstances is that, conformably with the primary judge's findings, before the accident the plaintiff had emptied each bin of its rubbish bag. He had also re-stood each bin so that it was standing. However, in relation to bin 4, the plaintiff was yet to replace the bin liner in the bin.

171. Importantly, these inferences from the photographic evidence - as correctly drawn by the primary judge - exclude the appellants' thesis that the plaintiff tripped and fell over rubbish bag 4 as he was dragging it out of its wheelie bin. Were that the case: (1) wheelie bin 4 would be on its side rather than standing up; and (2) the replacement bin liner would not be on the top-left hand corner of the wheelie bin.

172. So too, in our view, the reasonable and definite inference is that the wasp flew out of wheelie bin 4. The primary judge accepted, as part of the basic version, that a wasp came towards the plaintiff from a bin he had emptied. That finding is affected by the primary judge's impression of the plaintiff's credibility and reliability formed after seeing and hearing the plaintiff give evidence. The appellants have not suggested that the primary judge was wrong to find that a wasp flew out of a wheelie bin and startled the plaintiff - whether by reference to the principles discussed at [158] above or at all. The only issue is whether the wasp flew from bin 4. In circumstances where all of the other bins were closed the primary judge was correct to conclude that the wasp flew out of wheelie bin 4 after the plaintiff had re-stood the bin and placed the bin liner on the top left-hand corner of the bin.

Issue 3 - the risk of harm

178. Issue 3 concerns a point raised by Hays. Hays ground 2.1(b) alleges that the primary judge:

“defined the risk of harm too broadly by failing to include in the risk of harm the fact that [the plaintiff] moved backwards in an uncontrolled manner as a consequence of having been startled.”

179. Hays has referred to 'risk of harm' rather than 'risk of injury' despite the terms of s 305B of the Workers' Compensation and Rehabilitation Act. Nothing turns on Hays' choice of language. In this context the two terms are synonymous. We will use the term 'risk of harm' as that is what Hays has used in ground 2.1(b).

180. At trial Hays contended that the risk of harm should be framed as:

“[T]he risk of physical injury to a groundsmen, if the worker suddenly perceives an unexpected threat of danger or harm so as to cause the worker to move away from the source of the threat without regard to his/her surroundings.” (Hays WS par 65)

181. The primary judge identified the risk of harm as being 'the risk of tripping on the garbage bags' [107]. In context the primary judge intended to specify that the risk arose from placing the rubbish bags on the ground in a workspace [107]. That, in substance, was the risk of harm as posited on behalf of the plaintiff [104] (see also ts 1-6 to 1-7; Record Book p 379). The plaintiff referred to the risk of harm as 'a risk of suffering personal injury by tripping over bags of rubbish that had been emptied onto the ground … before then transferring them into a work vehicle'.

182. In identifying the risk of harm his Honour expressly rejected the proposition that the presence of the wasp was the event that exposed the plaintiff to the relevant risk; so too his Honour rejected the proposition that the action of the plaintiff walking backwards away from the wasp was the relevant risk [107]. The primary judge stated that the plaintiff would not have tripped absent the trip hazard posed by the garbage bags [107]. The primary judge observed that the risk of harm arising from garbage bags being placed on the ground in the plaintiff's workspace was expressly acknowledged by Mr Lawson (a Civeo employee in its maintenance department) [107] (see also [17], [103]).

183. It is only through the correct identification of the risk of harm that one can assess the reasonable response to that risk: Roads and Traffic Authority of New South Wales v Dederer;³⁷ Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd.³⁸ Moreover, in the application of div 2 of pt 8 of ch 5 to the Workers' Compensation and Rehabilitation Act (or pt 1 of ch 2 to the Civil Liability Act 2003 (Qld)) much depends on the degree of generality or precision with which the risk of harm is stated: Tapp [110]. As Leeming JA (Payne and White JJA) explained in dealing with cognate legislation in New South Wales:

“The Civil Liability Act makes the specification of the risk of harm important in every case. That applies at the threshold in every case in which a failure to take reasonable care is alleged, by reason of the three mandatory matters in s 5B(1)³⁹ that a plaintiff must establish, and the four matters in s 5B(2)⁴⁰ which a court is required to consider, all of which are addressed to a 'risk of harm' … The importance of identifying the risk of harm has been stressed in [numerous decisions in the New South Wales Court of Appeal between 2012 and 2018].

This is one of the signal changes effected by the Civil Liability Act. While the correct identification of the risk of harm was stated to be essential to identify a reasonable response in decisions to which the statute did not apply (for example, Roads and Traffic Authority of New South Wales v Dederer), the statute crystallises the position.”⁴¹ (original emphasis) (citations omitted)

184. An overly narrow formulation of the risk of harm can distort the court's analysis in various ways. In some respects this may favour the defendant; in others it may favour the claimant. For example:

At the point of considering whether the risk was foreseeable it may unduly favour the defendant. The claimant may effectively be required to show that the precise way harm was suffered was foreseeable.

At the point of considering whether a reasonable person in the position of the defendant would have taken precautions against the risk it may unduly favour the claimant. It might lead the court to underestimate the scope of the precautions that would be required to address the risk. It could detract from the required prospective assessment of whether a reasonable person in the position of the defendant would have taken the precautions.

See Carusi v St Mary's Anglican Girls School Inc.⁴²

185. There is no single correct way of describing the risk of harm. Rather, there are 'leeways of choice' that are more or less general or specific: Coles Supermarkets Australia Pty Ltd v Bridge.⁴³ In identifying the risk of harm:

The formulation of risk of harm should identify the true source of potential injury and the general causal mechanism of the injury sustained.

The risk must be defined taking into account the particular harm that materialised and the circumstances in which that harm occurred.

What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning; for example, because:

it obscures the true source of potential injury;

it too narrowly focuses on the particular hazard which caused the injury; or

it fails to capture part of the claimant's case.

See Coles Supermarkets Australia Pty Ltd v Bridge [22]; Carusi v St Mary's Anglican Girls School Inc [71].

186. The characterisation of the risk of harm does not need to descend to the precise detail of the mechanism by which the injury was suffered if that detail is not necessary to establish a breach of duty: Tapp [110], [115]. However, the characterisation of the risk of harm must include the 'general causal mechanism of the injury sustained' which gave rise to the potential for the harm for which the claimant seeks damages: Tapp [114]. The enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm: Tapp [106].

187. Hays submitted that, by eliminating the relevance of the wasp, the risk of harm as formulated by the primary judge was far too broad. Hays contended that the rubbish bags themselves did not present a risk of harm to the plaintiff in circumstances where: (1) the plaintiff placed the bags on the ground and was thus aware of the presence of the bags; (2) the plaintiff was cognisant of the need not to create a trip hazard; and (3) in the system of work the plaintiff would approach the bags moving forwards. Reference was made to the decision of the Court of Appeal of Victoria in McLeod v Mainfreight Distribution Pty Ltd.⁴⁴ Hays submitted that the risk of harm must take into account that the plaintiff moved in an uncontrolled way without concern for his surroundings because of a perceived threat. Hays contended that the alleged error in identification of the risk of harm was material because a reasonable person in the position of the plaintiff's employer would not have taken any precautions against the risk of harm as correctly identified.

188. Hays said that the present case was very similar to McLeod. In that case a worker suffered a workplace injury. The incident occurred in a staging area within a large open distribution warehouse described as being 'sparsely populated'. The worker stepped backwards and tripped over a loaded pallet, approximately 60 cm in height, injuring his right knee. The worker said that he did not see the pallet and was unaware of its presence. Among other things there was an issue about whether the risk of injury to the worker was reasonably foreseeable. The trial judge held that the positioning of the pallet did not create any particular risk of injury to the worker. The real risk of the injury that eventuated - being that the worker would walk backwards, trip over a pallet when moving towards a forklift, in order to move the forklift - was found to be not reasonably foreseeable. In any case there was no breach of duty because there was nothing that a reasonable employer would have done to prevent the risk of injury other than to advise the worker to look where he was walking. The real cause of the accident was held to be the worker's own actions.

Issue 4 - the awards for future economic loss

The primary judge's reasons for the award for future economic loss

196. Issue 4 concerns the primary judge's awards for future loss of earning capacity and future loss of superannuation benefits. Before outlining the appellants' complaints of alleged error it is necessary to summarise the primary judge's reasoning in awarding $250,000 for future loss of earning capacity and $29,450 for future loss of superannuation benefits.

197. In dealing with economic loss, the primary judge first assessed past loss. The primary judge rejected the proposition that the plaintiff had a reasonable prospect of obtaining work in the mining industry as a coal miner [134], [143]. Accordingly, his Honour found that economic loss should be assessed on the basis of past average earnings and current earnings with an allowance for positive vicissitudes (which included 'a chance' that the plaintiff might obtain employment in the mining industry) and negative vicissitudes - the latter comprising the plaintiff's long-term history of short-term employment and his longstanding dysthymic disorder [134]. The primary judge found that the plaintiff's past average earnings were $434 per week (2016 financial year), $260 per week (2017 financial year), $177 per week (2018 financial year) and $792 per week (pre-injury period of the 2019 financial year). The plaintiff was unemployed post-accident until 22 January 2024. The plaintiff had been working as a production welder since that time with weekly earnings in the region of $817 per week to $838 per week [135] - [137].

198. The primary judge quantified the plaintiff's economic capacity from the date of the accident to January 2024 at the rate of $800 per week [138]. A deduction of 10% was applied on the basis that it was reasonable to do so on account of the plaintiff's long term erratic work history [142].

199. In dealing with future loss of earning capacity, the primary judge considered it reasonable to fix the plaintiff's weekly earning capacity at a rate of $840 per week. This was on the basis that the plaintiff had obtained work earning approximately $817 per week to $830 per week [143]. The primary judge considered that the positive vicissitudes (including the plaintiff's determination and success in finding employment) were almost evenly counter-balanced by the negative vicissitudes (including the plaintiff's employment history and his dysthymia). However, having regard to the plaintiff's poor work history pre-2019, the primary judge adopted a 10% discount for general vicissitudes [144]. The primary judge found that the plaintiff was unlikely to be able to continue in his current casual employment in the long term [149]. Based on Dr Boys' work prognosis, which the primary judge accepted, his Honour assessed the plaintiff as having lost 50% of his economic capacity [149].

200. The primary judge provided the following summary of his conclusions:

“[I]t seems to me the plaintiff's economic capacity ought to be accepted at $840 npw, but his current employment is far from ideal and as Dr Boys said, his ability to continue depends upon his pain. I do accept the opinion of Ms Howard, occupation therapist, to the effect that the plaintiff's ability to find suitable work is substantially compromised. The plaintiff, by his education, training and experience is fit for unskilled manual labour and so the injury to his left elbow is an extremely significant impediment. It seems to me that a fair assessment methodology, is that the plaintiff has lost one half of his economic capacity. That is a loss of $420 npw. That ought to be allowed for the next 20 years to age 65 (discount factor 666) which is a sum of $279,720, less 10% for general vicissitudes quantifies the loss at about $250,000. This equates to a loss of $375 a week for the next 20 years (discount factor 666).” [150] (citations omitted)

201. The allowance for future loss of superannuation benefits (in an amount of $29,450) was based on a rule of thumb approach applying 11.78% to the amount for future loss of earning capacity [178], [180].

The parties' submissions

202. The plaintiff relied on the primary judge's findings and reasoning. The plaintiff emphasised that no issue was raised as to the primary judge's calculation of past economic loss and the findings made in determining the plaintiff's past economic loss. The plaintiff submitted that the awards as to future economic loss were reasonably open and made in conformance with s 306J of the Workers' Compensation and Rehabilitation Act. It was said that no error had been demonstrated in the primary judge's findings or assessment.

203. The plaintiff also relied on the evidence the subject of his application dated 20 August 2024 to adduce further evidence on the appeal.

204. Hays referred to the findings as to the plaintiff's past average earnings, evidence that the plaintiff had rarely held down any job for more than a period of months with regular periods of unemployment and the finding that there was no evidence capable of showing that the plaintiff had a reasonable prospect of obtaining work in the mining industry. Hays observed that the award was premised on the plaintiff suffering immediate economic loss from the date of the judgment. This, Hays said, was directly contradictory to the plaintiff's evidence that he intended to continue working in his current role for as long as possible. Hays said that the award was calculated: (1) using a weekly earnings figure substantially in excess of the plaintiff's historical earnings; and (2) from the date of judgment despite the plaintiff's current employment. Hays asserted that the negative vicissitudes mentioned at primary reasons [134] had not been brought to account at all.

205. Hays contended that proper allowances would have been no more than $50,000 for future loss of earning capacity and $5,890 for future loss of superannuation benefits.

206. Civeo submitted that the awards for future economic loss were so excessive that they were beyond the limits of a sound discretionary judgment. Civeo said that:

In assessing the plaintiff's earning capacity at $840 per week the primary judge failed to give adequate weight to the plaintiff's earnings prior to the accident.

The primary judge erred in three key factual findings on which the assessment was based, namely:

In assessing the plaintiff's earning capacity at $840 per week.

In finding that the plaintiff had lost 50% of his earning capacity - here, in particular, relying on the contention that the plaintiff's present earnings showed no sign of abatement.

In calculating future economic loss with immediate effect despite the evidence suggesting that the plaintiff's present earning from his employment would continue.

The decision was unreasonable and plainly unjust such that it should be inferred that error had occurred.

207. In oral submissions senior counsel for Civeo focused on the $840 per week multiplicand applied by the primary judge.

208. Civeo's submissions exceeded the scope of its grounds of appeal. Civeo's grounds of appeal only challenged the weekly sum on the basis that it was inconsistent with the findings made as to past earnings (Civeo ground 2(g)(i)) and the circumstance that the allowance was calculated with immediate effect (Civeo ground 2(g)(ii)). There was, however, no objection on the part of the plaintiff to Civeo expanding the scope of its challenge on appeal by its submissions. In any case the arguments raised by Civeo were within the grounds advanced by Hays.

209. Civeo contended that the primary judge should have found that the plaintiff lost 20% of his pre-incident earning capacity of $427.77 with effect no sooner than two years post-trial. Applying the primary judge's methodology this resulted in an amount of $43,656.15 for future loss of earning capacity and $4,850.57 for future loss of superannuation benefits.

Applicable principles

210. In an action for damages for personal injury a claimant is compensated for loss of earning capacity, not loss of earnings. The claimant has the legal onus of proving loss of earning capacity and the extent to which that loss produces or may produce financial loss. No compensation is payable for loss of earning capacity unless the loss is or may be productive of financial loss. The relevant question is whether, as a result of the breach, the claimant has been rendered less capable of earning income. In determining that question the court looks at the claimant's capacity for work beyond the particular employment in which he or she was engaged at the time of the breach. See Medlin v The State Government Insurance Commission.⁴⁵

211. The assessment of future loss of earning capacity involves a 'double exercise' in the art of prophesying - what the future would have been if the injury had not occurred and what it is now likely to be: Paul v Rendell;⁴⁶ Todorovic v Waller.⁴⁷

212. The claimant must prove his or her loss - this includes the quantification in money that should be adopted in the amount awarded: Watts v Rake.⁴⁸ However, damages for financial loss likely to result from personal injury can only be an estimate - often a very rough estimate - of the present value of a claimant's prospective loss: Todorovic v Waller (413). The assessment of damages for personal injuries in an action for negligence is not an exact science: Montemaggiori v Wilson.⁴⁹ Ultimately the process must be one of judgment rather than calculation: Todorovic v Waller (413). Some aspects of the exercise can only be intuitive: Paul v Rendell (372). In any event the process of assessment must be governed by considerations of practical common sense in the context of the facts of the particular case: Montemaggiori v Wilson [28].

213. The nature of such an assessment has implications for appellate review. The High Court has explained that the line separating discretionary decisions (in which appellate review is confined to the standard) and other decisions (in which the 'correctness standard' applies) turns on whether the legal criterion to be applied 'demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the standard applies': [16]; . The legal criterion governing the assessment currently under consideration tolerates a range of outcomes and is subject to the standard.

An assessment of damages in an action for negligence has many of the characteristics of a discretionary judgment.

In general, an appeal from a trial judge's assessment of damages for non-economic loss for a personal injury is to be determined in the same manner as an appeal from the exercise of discretion of a trial judge - an error must be identified within the terms of House v The King.

There is a similar need for appellate restraint in review of the past and future hypotheticals of an assessment of damages for lost earning capacity - at least where the decision reflects a degree of judicial prophesy or speculation. Appellate courts observe restraint in recognition of the necessary imprecision and evaluation involved in determining the likelihood that a past hypothetical event would have occurred or a future hypothetical event will occur.

In order to justify review on the ground that an award is excessive, the compensation must be so excessive as to be beyond the limits of what a sound discretionary judgment could reasonably adopt.

See McCartney v Orica Investments Pty Ltd;⁵² Montemaggiori v Wilson [29]; Doerr v Gardiner [145] - [151]; Tabloid Pty Ltd v Pringle.⁵³

215. The requirement for appellate restraint recognises that the task undertaken by the primary judge is an exercise in judgment rather than calculation.

216. An appellate court cannot interfere with an award of damages merely because it would have awarded more or less had it tried the case at first instance: Miller v Jennings;⁵⁴ Precision Plastics Pty Ltd v Demir;⁵⁵ Calder v Boyne Smelters Ltd;⁵⁶ H & Q Café Pty Ltd v Melbourne Café Pty Ltd.⁵⁷ Nor is an appellate court to approach its evaluation of an assessment of damages by determining the amount it would award left to itself as the basis of the decision as to whether the award is so disproportionate as to go beyond the range of a sound exercise of judgment in the awarding of damages: Wilson v Peisley;⁵⁸ Doerr v Gardiner [149].

217. Instead it must be demonstrated that the trial judge's exercise of judgment has miscarried because, for example, the trial judge acted on a wrong principle of law or has misapprehended the facts or the award is so inordinately low or so inordinately high that it is apparent that the trial judge has made a 'wholly erroneous' estimate of the damage suffered: Miller v Jennings (196); Planet Fisheries Pty Ltd v La Rosa;⁵⁹ Wilson v Peisley (211 - 212), (214); Precision Plastics Pty Ltd v Demir (369). See also McCartney v Orica Investments Pty Ltd [110] - [126].

Disposition of Issue 4

218. The primary judge's awards for future economic loss were dependant on four key integers: (1) the primary judge's assessment of the plaintiff's earning capacity but for his injury (an amount of $840 per week); (2) the primary judge's assessment of the plaintiff's residual earning capacity (this resulting in a 50% loss of economic capacity); (3) the extent of the plaintiff's remaining working life (20 years); and (4) the reduction to be applied for general vicissitudes (10%).

219. In this respect it is well established that, in an appropriate case, a trial judge may assess a claimant's residual earning capacity as a percentage of his or her pre-accident earning capacity. One situation in which this commonly occurs is where there are considerable uncertainties associated with the claimant's prospects of obtaining work within his or her residual capacity. However, such an approach is not appropriate in every case. In the end, the question whether to apply such a methodology is one of fairness. See Montemaggiori v Wilson [32].

220. In the present appeal there was no challenge to the primary judge's methodology for assessing the plaintiff's future economic loss. The challenge was to the application of the adopted methodology. Indeed, in putting forward its alternative calculation Civeo embraced the methodology adopted by the primary judge. In the circumstances this court should evaluate the challenge to the awards for future economic loss without any reconsideration of the appropriateness of the methodology adopted by the primary judge.

221. The appellants' challenge was directed to the first three of the key inputs that the primary judge arrived at for the purpose of the calculation. There is force in the challenge to the figure of $840 per week in terms of earning capacity but for the injury. The figure of $840 is substantially higher than the plaintiff's average weekly earnings in the three financial years of 2016, 2017 and 2018 (see [197] above). Also, as was submitted, the plaintiff's work history was inconstant and punctuated by significant portions of unemployment. That can be seen from the plaintiff's statement of loss and damage (Record Book 63) and his quantum statement (par 22; Record Book 173 - 174). However, there are three countervailing matters. First, in determining past economic loss the primary judge quantified the plaintiff's economic capacity over the period from February 2019 to January 2024 at $800 per week. That finding is unchallenged on appeal. Second, in the first 32 weeks of the 2019 financial year the plaintiff had earnings of $792 per week performing hydroblasting and labouring duties. In that respect the primary judge recorded that the plaintiff moved to Mackay in search of higher paying employment and had in fact obtained that employment. Third, as at the time of the trial the plaintiff had secured full-time employment earning approximately $817 per week to $830 per week.

222. We are, in the circumstances, unable to conclude that the appellants have demonstrated error in the primary judge's assessment that but for the injury the plaintiff's earning capacity was an amount of $840 per week. There is adequate support for that conclusion in the primary judge's unchallenged finding that the plaintiff's earning capacity over the period February 2019 to January 2024 was to be quantified at $800 per week. Logically, appreciating that the $800 per week figure was an average figure over a five-year period, as at the end of that period - when the primary judge was assessing the plaintiff's then earning capacity - it was reasonably open to adopt a marginally higher figure. The increase of 5% was well within what might be expected having regard to general wage growth. The primary judge's conclusion is also supported by the plaintiff's earnings over 2019 -2020 and as at the time of the trial. In concluding that the appellants have not demonstrated error in the $840 per week figure we also take into account that the primary judge adopted a 10% discount figure for negative vicissitudes.

“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 [will be] in and out of employment in the future …” [174]

227. The primary judge considered that, when the plaintiff was unable to continue in his current role, he would be unable to find work for a substantial period of time and eventually obtain lighter work [149].

228. There is no challenge to the primary judge's findings that it was likely that the plaintiff would be unable to continue in his employment and the plaintiff would be in and out of employment in the future. There is a proper basis for those findings in the evidence of Dr Boys and Ms Howard. That is all the more so given the relatively short duration of the plaintiff's employment and the obvious inconvenience of the location of the plaintiff's employment.

229. The unchallenged findings provide proper justification for the primary judge's conclusion that, although the plaintiff had full time employment at the time of trial, the plaintiff had suffered a 50% loss of economic capacity. The plaintiff's injury was likely to have an impact on the plaintiff's ability to remain in that employment. Moreover, it answers the appellants' submissions - relevant to the third key integer as assessed by the primary judge - that there was error in allowing for future economic loss from the date of judgment as opposed to some future date. The primary judge was satisfied that, as a result of his injury, it was likely the plaintiff would be in and out of employment in the future. It should be inferred, consistently with the finding that it was likely that the plaintiff would have to modify his employment by finding work with lighter tasks in the future, that such periods of unemployment would occur and occur with more frequency as the plaintiff aged. That inference is consistent with Dr Boys' opinion that the plaintiff faced ongoing and increasing degeneration in his left elbow joint.

230. The primary judge was assessing the plaintiff's loss of economic capacity over a 20‑year period. It would, in our view, have been highly artificial - and completely impractical - to try and assess how long the plaintiff was likely to remain in his current employment. Given the nature of the assessment task in which the primary judge was engaged, there was no error in his Honour considering the issue in the broad. In that respect, informed by the accepted evidence of Dr Boys and Ms Howard, we are unable to discern error in the primary judge's assessment that the plaintiff had lost 50% of his earning capacity over the remainder of a 20-year working life simply because the plaintiff was in full time employment, which he hoped to continue, as at the time of his trial. The plaintiff's current employment was to be balanced against the future likelihoods.

231. Finally, contrary to Hays' submission, it is not the case that the negative vicissitudes mentioned at [134] of the primary reasons were not brought into account at all in the awards for future economic loss. The primary judge provided for a 10% discount for general vicissitudes [144], [150] (consistent with his Honour's approach to the allowance for past economic loss [142]). The reduction of 10% for general vicissitudes is towards the upper end of the discount that may be applied for ordinary contingencies. Here the primary judge allowed the 10% notwithstanding that there were positive vicissitudes including 'a chance' of obtaining work in the mining industry [134]. No error is revealed by the primary judge's adoption of the 10% discount.

Issue 5 - s 316 of the Workers' Compensation and Rehabilitation Act

The statutory provision

234. Issue 5 is concerned with s 316 of the Workers' Compensation and Rehabilitation Act. Section 316 is a provision within ch 5 of the Act dealing with access to damages. Within ch 5 there are several parts. These include entitlement conditions (pt 2), mitigation of loss and rehabilitation (pt 3), reduction of recoverable damages (pt 4), pre-court procedures (pt 5), settlement of claims (pt 6), court proceedings (pt 7), civil liability (pt 8) and assessment of damages (pt 9). The Act modifies the general law by which a worker may seek to recover damages for injuries sustained in his or her employment in fundamental respects.

235. Section 316 of the Workers' Compensation and Rehabilitation Act is in pt 12 of ch 5 dealing with costs. It provides:

“316 Principles about orders as to costs

No order about costs, other than an order allowed under this section, is to be made by the court in the claimant's proceeding.

If a claimant or an insurer makes a written final offer of settlement that is refused, the court must, in the following circumstances, make the order about costs provided for:

if the court later awards an amount of damages to the worker that is equal to or more than the worker's written final offer - an order that the insurer pay the worker's costs on the standard basis from the day of the written final offer;

if the court later dismisses the worker's claim, makes no award of damages or awards an amount of damages that is equal to or less than the insurer's written final offer - an order that the worker pay the insurer's costs on the standard basis from the day of the final offer.

If an award of damages is less than the claimant's written final offer but more than the insurer's written final offer, each party bears the party's own costs.”

236. Section 316 applies if the claimant is a worker who does not have a terminal condition and has a degree of permanent impairment of less than 20% (s 315). It was common ground that the plaintiff met that criteria. Other divisions in pt 12 to ch 5 of the Act provide for different principles about orders as to costs where different criteria are met. See s 240 of the Act. For example, div 1 provides for principles about orders for costs where, among other things, the claimant is a worker who has a terminal condition or has a degree of permanent impairment of 20% or more. With some of the other costs regimes in different divisions of pt 12 the court may make an order for costs other than the prescribed order (s 318B). That is not the case where s 316 applies. Where applicable, s 316 provides for a mandatory regime.

237. In that respect, s 316 provides for a specific exception to the general judicial discretion as to costs provided by s 15 of the Civil Proceedings Act 2011 (Qld) and r 681(1) of the Uniform Civil Procedure Rules.

238. There are several defined terms in s 316. They include:

'Claimant' - being a 'person entitled to seek damages' (s 233).

'Insurer' - means, relevantly and in effect, 'in relation to a claimant or worker whose employer for the purpose of the injury is a self-insurer, the self-insurer' (ie the employer) (sch 6).

'Worker' - means, for a claim, 'the worker in relation to whose injury the claim is made' (s 233).

'Written final offer' - a 'written final offer under s 292' (s 233) (see [[240]] below).

239. The term 'claimant's proceeding' in s 316(1) is not defined. It is a critical term for the purpose of the question raised by Issue 5. There are, however, multiple references in the Act to 'claimant's proceeding for damages' (see eg s 240, s 306B, s 311). Having regard to s 240(2) of the Act, the term 'claimant's proceeding' in s 316(1) should be construed conformably with the phrase 'claimant's proceeding for damages'.

240. The term 'written final offer' refers to a written final offer for the purpose of s 292. Section 292 is within pt 6 to ch 5 of the Workers' Compensation and Rehabilitation Act dealing with settlement of claims. Before any claimant starts a proceeding for damages there must be a compulsory conference of the parties (s 289). The Act makes provision for the materials for and procedure at the compulsory conference (see s 290 and s 291). There is an express requirement for relevant persons to attend the compulsory conference, and actively participate in an attempt to settle the claim, unless the claimant or person has a reasonable excuse (s 289(8)). If the claim is not settled at the compulsory conference, s 292(2) has the effect, for present purposes, that each party must ensure that it makes a written final offer that would dispose of the claim if the offer was accepted. A written final offer must remain open for 10 business days and proceedings must not be started while the offer remains open (s 292(9) - see also s 295(c)). Where proceedings are subsequently commenced the parties' respective written final offers must be filed at the court in a sealed envelope (s 292(10) - (11)).

241. Accordingly, while s 316(2) provides for various mandatory orders about costs 'if' a claimant or an insurer makes a written final offer of settlement that is refused, that will ordinarily be the case. Each party must make a written final offer at the compulsory conference pursuant to s 292(2) of the Act. Where subsequent litigation proceeds to judgment it will necessarily be the case that those written final offers will have been refused.

242. Section 316 contemplates three - and only three - allowable orders about costs in a claimant's proceeding (where that proceeding meets the criteria in s 315). Those orders are:

An order that the 'insurer' (in the present context being, relevantly and in effect, Hays as the plaintiff's employer) pay the worker's costs on a standard basis from the day of the written final offer (s 316(2)(a)).

An order that the worker pay the insurer's costs on the standard basis from the day of the 'final offer' (s 316(2)(b)). (Section 316(2)(b) refers to 'final offer' rather than 'written final offer'. That appears to be an inadvertent omission given the chapeau to s 316(2). The reference to 'final offer' should be read and construed as 'written final offer'.)

An order that each party bears the party's own costs (s 316(3)).

243. The first order must be made where the court awards a worker damages that are equal to or exceed the worker's final written offer (ie the worker 'beats' his or her final offer). The second order must be made where the court dismisses the claim, makes no award of damages or awards the worker damages that are equal to or less than the insurer's final written offer (ie the worker fails to 'beat' the insurer's final offer). The third order must be made if the award of damages is less than the claimant's written final offer but more than the insurer's written final offer (ie the claimant beats the insurer's final offer but fails to beat his or her final offer).

244. In the context of ch 5 dealing with access to damages, and in particular the necessity to make a written final offer at the compulsory conference and the prohibition on commencement of proceedings while the offers remain open, the statutory purpose or object underpinning s 316 is clear. The primary purpose is to incentivise claimants and insurers to make and accept appropriate written final offers of settlement. A failure to act in this way exposes both claimant and insurer/employer to potential adverse consequences as to costs in the claimant's proceedings. The statutory purpose so identified serves an accepted public policy of avoiding unnecessary litigation and the adverse consequences of such litigation in terms of the application of private and public resources. It also tends to reduce delay in the resolution of claims for damages for workers' injuries.

245. There are two identifiable secondary purposes. First, the preclusion of the court's discretion provides certainty as to outcome thereby avoiding parasitic costs disputes at the conclusion of litigation of this kind. Second, in confining recoverable costs in litigation of this kind to costs on the standard basis the legislation seeks to ensure reasonable cost levels while maintaining a balance as to fair and appropriate benefits for injured workers. In that regard see s 5(4)(a) - (c) of the Workers' Compensation and Rehabilitation Act.

The costs order made against Civeo

246. The primary judge delivered reasons for decision on 22 April 2024. The parties were able to agree the orders for judgment to give effect to the primary reasons except for one aspect of the cost orders. The primary judge heard argument about that matter on 3 May 2024. After hearing argument, for oral reasons given that day, the primary judge entered judgment.

247. In entering judgment, the primary judge made the following orders as to costs:

“4. That [Hays] pay the plaintiff's costs of and incidental to the proceedings against [Hays] from 30 August 2021 on the standard basis to be agreed or assessed.

That [Civeo] pay the plaintiff's costs, including those costs incurred by the plaintiff in proceeding against [Hays], of and incidental to the proceedings:

a. On the standard basis up to 30 August 2021 to be agreed or assessed; and

b. On the indemnity basis from 30 August 2021 to be agreed or assessed.”

248. It is not necessary to examine the primary judge's reasons for making these costs orders. On appeal only order 5 is relevant. Moreover, as will be seen, the question is whether the primary judge was empowered to make an order in terms of order 5. Civeo argued that order 5 was precluded by the terms of s 316 of the Workers' Compensation and Rehabilitation Act. Insofar as this turns on the proper construction of s 316 - in particular the extent of its operation - the correctness standard applies.

The issue on appeal

249. Civeo, by its ground 2(i), contended that the primary judge erred in law by making order 5 contrary to s 316 of the Workers' Compensation and Rehabilitation Act. Civeo submitted that:

The award was more than the plaintiff's written final offer to Hays - s 316(2)(a) thus required an order in terms of order 4.

The primary judge additionally ordered that Civeo pay the plaintiff's costs - including those incurred by the plaintiff in proceedings against Hays - on a standard basis up to 30 August 2021 and on an indemnity basis thereafter.

Order 5 contravened s 316 to the extent that it included the plaintiff's costs of proceedings against Hays.

250. Accordingly, the argument was advanced in terms of power rather than discretion. Civeo contended that, as a matter of law, s 316 of the Workers' Compensation and Rehabilitation Act precluded the order that it pay costs incurred by the plaintiff in proceedings against Hays both prior to 30 August 2021 (on a standard basis) and from 30 August 2021 (on an indemnity basis).

251. Civeo acknowledged that in making order 5 the primary judge relied on a series of single judge decisions, namely, Paskins v Hall Creek Coal Pty Ltd & Anor (No 2),⁶⁰ Thomson v State of Queensland & Anor (No 2)⁶¹ and Reddock v ST & T Pty Ltd & Anor (No 2).⁶² Civeo submitted that those decisions were wrongly decided. Civeo pointed to the text of s 316(1). It was said to provide that 'no costs order may be made in the worker's proceedings against an employer other than as allowed in s 316' (Civeo's submissions par 52). Civeo submitted that to find that a worker's costs in the proceedings against an insurer/employer can be ordered against another party was to read words into the statute that are not there, namely, an exception to the effect that the prohibition does not apply where the 'order is made against another party not confined by this Act' (Civeo's submissions par 52).

252. On the construction of s 316 contended for by Civeo, Civeo said that:

The plaintiff was precluded from a costs order in his favour for costs in the proceedings against Hays prior to the date of the written final offer.

After the date of the written final offer, the plaintiff was limited to a standard costs order in his favour for costs in the proceedings against Hays (an indemnity costs order being precluded).

253. The plaintiff submitted that, properly construed, s 316 of the Workers' Compensation and Rehabilitation Act was only relevant to the issue of costs as between the plaintiff, as the 'claimant' or the 'worker', and Hays. The plaintiff relied on the reasoning in the single judge decisions as followed by the primary judge.

The single judge decisions

254. In due course a little more should be said about the relevant statutory framework. Before doing so it is appropriate to consider the single judge decisions that were relied on by the primary judge and the plaintiff.

255. The first in time of the single judge decisions is Paskins v Hall Creek Coal Pty Ltd & Anor (No 2). There a worker sued his employer and another party for damages for personal injuries sustained in the course of his employment. Each defendant claimed that the other was legally responsible. The worker was successful against both defendants. The worker could not obtain an order for costs against his employer because of the operation of s 316. Presumably the worker's written final offer was greater than the eventual award. At issue was whether the costs order in favour of the worker against the other defendant could - and should - extend to the costs that the worker incurred in pursuing the employer.

256. McMeekin J held that, although s 316 precluded the worker from recovering costs from the employer, nothing in the Workers' Compensation and Rehabilitation Act or its objects precluded an order requiring the other defendant to pay the additional costs incurred by the worker in pursuing the employer. After characterising the issue as being whether the worker could circumvent the effect of s 316, and whether s 316 should operate to protect a litigant other than the employer, McMeekin J stated that none of the objects of the Act were offended by making the order that the worker sought [9], [15], [17].

257. Having, for this reason, apparently concluded that the order sought was not precluded by s 316, McMeekin J was satisfied that it was just and fair that the worker obtain an indemnity against the expense he had been put to in pursuing the employer as well as the other party. In coming to that conclusion McMeekin J was influenced by the conduct of the other defendant in effectively mandating that the worker sue both defendants [14], [19].

258. In Thomson v State of Queensland & Anor (No 2) Applegarth J followed McMeekin J's analysis. A worker sued two defendants for personal injuries. One of the defendants was the worker's employer; the other was the operator of the school farm at which the claimant was working. The proceedings were resolved during trial by admissions of liability. It was not in issue that the worker was entitled to indemnity costs as against the farm operator. The issue was whether those costs should include the worker's costs of pursing his employer. The worker was precluded from recovering costs against the employer by the operation of s 316.

259. Applegarth J stated:

“The issue for decision is the appropriate order for costs against the first defendant [ie the non-employer defendant]. I am not directly concerned with deciding the appropriate order for costs against the second defendant [ie the employer] in respect of the proceeding brought against it. That issue has been determined in accordance with the statute.

The fact that the plaintiff [ie the worker] is not able to recover from [the employer] the costs he incurred in pursuing it because his mandatory final offer to it was not good enough is a relevant circumstance. However, s 316 WCRA is concerned with an order for costs made in the 'claimant's proceeding' against the employer. It is not concerned with the appropriate order for costs in the proceeding brought against another defendant, being a proceeding which is not governed by s 316 WCRA. Section 316(1) does not purport to prohibit or regulate an order as to costs against another defendant. I follow, with respect, the analysis of McMeekin J in Paskins that the order [the worker] seeks does not offend the objects of the WCRA.

The order sought does not circumvent s 316 WCRA. Instead, the fact that [the worker] has not been able to recover the costs of pursuing [the employer] by virtue of s 316 WCRA is a relevant consideration. That said, [the worker] was not unsuccessful in his pursuit of [the employer]. He succeeded in obtaining judgment against [the employer], but not to the extent that would entitle him to a costs order against [the employer] in light of the settlement offers made by him.” [16] - [18] (original emphasis)

260. Applegarth J concluded that the order sought was just in circumstances where the non-employer defendant's unmeritorious denial of liability put the worker to the increased cost burden of pursuing a proceeding against the employer defendant [19], [21] - [25]. However, as has been seen, the circumstance that the worker's final written offer exceeded the damages awarded - and the operation of s 316 - were relevant considerations in exercising the discretion to order the costs as against the non-employer defendant.

261. The last of the single judge decisions is Reddock v ST & T Pty Ltd & Anor (No 2). Again two defendants, one of whom was an employer, were found liable for personal injuries sustained by a worker during the worker's employment. As between the worker and the employer s 316(3) applied meaning that each party was to bear its own costs. The worker sought an order that the other defendant (ie the non-employer defendant) pay her costs of the claim against the employer as well as her costs of the claim against the non-employer defendant. Jackson J made an order that the non-employer defendant pay the worker's costs of the claim against the employer after a particular date [22].

262. It is not necessary to consider the observations Jackson J made as to the exercise of the costs discretion [17] - [22]. The point taken by Civeo on appeal is concerned with power rather than discretion. As to power, the non-employer defendant in Reddock argued that the order sought would be contrary to s 316(3) of the Workers' Compensation and Rehabilitation Act. Jackson J referred to Paskins and Thomson. His Honour stated that each decision was persuasive authority that should be followed on the effect of s 316 unless persuaded that they were clearly wrong [15]. Jackson J found that it was impossible to accept that each of Paskins and Thomson failed to consider s 316(3); in both cases, like the case before his Honour, s 316(3) was engaged and s 316(1) prohibited an order other than that allowed under s 316(3) against the employer [16].

Disposition of Issue 5

263. This court is not bound by Paskins, Thomson or Reddock. These single judge decisions are helpful in understanding the issue raised by Civeo ground 2(i). Ultimately, however, the issue raised should be considered as a discrete task of statutory construction without any preconceptions.

264. Statutory construction involves the attribution of legal meaning to statutory text. Its process is well understood. However, it assists to restate some general principles:

The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. The constructional task is to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation and it is not repair.

The task of statutory construction must begin with a consideration of the text itself. So must the task of statutory construction end.

The statutory text must be considered in its context. Context should be regarded at the first stage, not at some later stage, and should be regarded in its widest sense.

The context and purpose of a provision are important to its proper construction because the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.

The interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation: Acts Interpretation Act 1954 (Qld) s 14A.

The purpose of a statute resides in its text and structure. Purpose must be derived from what the legislation says and not from any assumption about the desired or desirable reach or operation of the relevant provisions. In considering purpose it is necessary to identify the purpose of the specific provision rather than the purpose of the enactment as a whole.

Inconvenience or improbability of result may assist the court in preferring a construction other than a literal interpretation which is reasonably open and more closely conforms to the legislative intent.

A court construing a statutory provision must strive to give meaning to every word of the provision.

See CIC Insurance Ltd v Bankstown Football Club Ltd;⁶³ Project Blue Sky Inc v Australian Broadcasting Authority;⁶⁴ Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross;⁶⁵ Federal Commissioner of Taxation v Consolidated Media Holdings Ltd;⁶⁶ Taylor v Owners - Strata Plan No 11564;⁶⁷ ADCO Constructions Pty Ltd v Goudappel;⁶⁸ SZTAL v Minister for Immigration and Border Protection;⁶⁹ The Queen v A2;⁷⁰ ENT19 v Minister for Home Affairs.⁷¹

265. Accordingly, the key elements in determining the proper construction of a written law are the statutory text, context and purpose. The text is the starting and end point. It provides the 'surest guide' to Parliament's intent: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.⁷² However, the text must be read in its context, including the general purpose and policy of the statutory provision.

266. A criticism that may be made of Paskins v Hall Creek Coal Pty Ltd & Anor (No 2) is that McMeekin J construed s 316 simply by reference to whether the contended for construction offended any of the express objects of the Workers' Compensation and Rehabilitation Act as set out in s 5(2), s 5(4) and s 5(5) of the Act.

267. There are, in our opinion, two difficulties in that approach in Paskins. First, it omits, as a starting point, consideration of the statutory text and the constructional choices, if any, available in the statutory text. That should be contrasted with Applegarth J's approach in Thomson v State of Queensland & Anor (No 2). Applegarth J identified, importantly in our view, that s 316 is concerned with the allowable orders about costs that may be made by the court 'in the claimant's proceeding'. Second, the approach in Paskins assumes that the statutory purpose of s 316 is to be found in the main objects of the Act as specified in s 5. Self-evidently the objects stated in pt 2 of ch 1 to the Act are an aid to the interpretation of the Act (s 4(2)). But it should not be thought that the purpose of s 316 is necessarily found in those main objects. To the contrary, as we have explained, the text and structure of s 316 - understood in the context of ch 5 of the Act as a whole - leads to the identification of the specific statutory purposes served by s 316 (see [244] - [245] above).

268. In terms of the statutory text, the critical aspect of s 316 is the phrase 'claimant's proceeding' in s 316(1). The statutory preclusion is as to an order about costs - other than an order allowed under s 316(2) or s 316(3) - in the 'claimant's proceeding'. It is only in this respect that s 316 'otherwise provides' for the purpose of s 15 of the Civil Proceedings Act.

269. The circumstance that s 316 is regulating allowable costs orders is important. In deciding whether to make an order for costs; and, if so, what order, the court exercises a judicial discretion. The necessity for a power to be exercised judicially tends in favour of the most liberal construction. This is because it is contrary to principle that the grant of power to a court should be construed as subject to a limitation not appearing in the words of the grant: . Conversely, where a statutory provision precludes a court's exercise of a discretion otherwise generally available (or, as here, mandates how an otherwise general judicial discretion is to be exercised) the provision should be read and construed narrowly rather than liberally (albeit conformably with the text, context and purpose of the statutory provision).

Conclusion and orders

281. At the appeal hearing, senior counsel for Hays sought to be able to make submissions as to the costs of the appeal on publication of the court's reasons. That was on the basis that there were several variables within the appeal that may affect the costs disposition. However, in the result, the appeals must be dismissed. Prima facie costs ought to follow the event.

282. While, on a provisional basis, an order that Hays and Civeo each pay the plaintiff's costs of the respective appeals appears to be the appropriate order, the parties should be heard on the question of the costs of the appeal if and to the extent that they seek to be heard.

283. Accordingly, and for the reasons set out above, we would make the following orders in each appeal:

The first respondent's application dated 20 August 2024 to adduce further evidence is dismissed.

The appeal is dismissed.

The parties must file and serve any further submissions as to the order which should be made as to the costs of the appeal within 14 days of the date on which the reasons for judgment are published.

The Court will determine on the papers the order which should be made as to the costs of the appeal.

Footnotes

1. Carey-Schofield v Hays & Civeo [2024] QSC 60 (primary reasons). ↩

2. Referring to the plaintiff's further amended statement of claim dated 11 March 2024. ↩

3. Referring to Hays' further amended defence dated 7 March 2024. ↩

4. Referring to Civeo's defence dated 18 November 2021. ↩

5. Plaintiff's written submissions tendered 21 March 2024 (Plaintiff's WS) par 3. ↩

6. Referring to Hays' written submissions tendered 21 March 2024. ↩

7. Civeo's written submissions tendered 21 March 2024 par 20. ↩

8. Civeo's written submissions par 4. ↩

9. Appeal ts 1-4. ↩

10. HT v The Queen [2019] HCA 40; (2019) 269 CLR 403 [17] - [18]. ↩

11. Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585. ↩

12. Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (Ex parte Aala) [101]. See also: (587); [2003] HCA 6; (2003) 214 CLR 1 () [81], [83].