Carey-Schofield v Hays & Civeo
[2024] QSC 60
•22 April 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Carey-Schofield v Hays & Civeo [2024] QSC 60
PARTIES:
AARON PHILLIP CAREY-SCHOFIELD
(plaintiff)
v
HAYS SPECIALIST RECRUITMENT (AUSTRALIA) PTY LTD (ABN 47 001 407 281)(first defendant)
CIVEO PTY LTD (ABN 53 003 657 510)
(second defendant)FILE NO/S:
1014/21
DIVISION:
Trial Division
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court at Rockhampton
DELIVERED ON:
22 April 2024
DELIVERED AT:
Rockhampton
HEARING DATE:
11, 12, 13, 21 March 2024
JUDGE:
Crow J
ORDER:
CATCHWORDS:
TORTS – NEGLIGENCE – DUTY OF CARE – where the plaintiff suffered a workplace injury while employed by the first defendant and labour hired to the second defendant – where liability for injuries is disputed – where quantum of damage is disputed – whether the defendants are liable in negligence
DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – GENERALLY – where the plaintiff has returned to work since the date of injury – where the plaintiff has in the past had long periods of sporadic employment – where the plaintiff cannot undertake heavy physical work – what measure of damages for past and future economic loss and Griffiths v Kerkemeyer damages – how should the damages be apportioned between defendants
Law Reform Act 1995 (Qld), s 6, s 7
Workers’ Compensation and Rehabilitation Act2003 (Qld), s 305B, s 305D, s 306J, s 306M, s 306NWorkers’ Compensation and Rehabilitation Regulation 2014 (Qld), sch 9
Boon v Summs of Qld Pty Ltd [2016] QCA 38
Cains v Mathers Shoes Pty Ltd [1993] QCA 193
Evans v Port of Brisbane Authority (1992) ATR 81-169
Heywood v Commercial Electrical Pty Ltd [2013] QCA 270
Higgins v William Inglis & Sons Pty Ltd (1978) 1 NSWLR 649
Hughes v Grogan & Anor [2007] QSC 046
James Thane Pty Ltd v Conrad International Hotels Corporation & Ors [1999] QCA 516
Market Form Managing Agency Ltd v Ashcroft Supa IGA Orange Pty Ltd [2020] NSWCA 36
McLean v Tedman & Brambles Holdings Ltd [1984] HCA 60; (1984) 155 CLR 306
Meandarra Aerial Spraying Pty Ltd & Anor v GEJ Geldard Pty Ltd [2012] QCA 315
Mott v Bogan [1999] QSC 216
Paskins v Hail Creek Coal Pty Ltd (No 2) [2018] 2 Qd R 518; [2017] QSC 213
Paul v Rendell (1981) 55 ALJR 371
Robinson v Fig Tree Pocket Equestrian Club Inc& Ors [2005] QCA 271
Shaw v Menzies & Anor [2011] QCA 197
Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11
Thomson v State of Queensland & Anor (No 2) [2019] QSC 115TNT Australia Ltd v Christie (2003) 65 NSWLR 1
COUNSEL:
P T Cullinane KC and M E Holmes for the plaintiff
S J Deaves KC and M Rothery for the first defendantG C O’Driscoll for the second defendant
SOLICITORS:
Shine Lawyers for the plaintiff
DWF Australia for the first defendantMoray & Agnew Lawyers for the second defendant
Introduction
On 24 February 2019 the plaintiff, Mr Carey-Schofield, suffered personal injury in the course of his employment with the first defendant (herein after referred to as “Hays”). The plaintiff brings an action in negligence against Hays and the second defendant, Civeo Pty Ltd (“Civeo”), alleging that he was labour-hired by Hays to Civeo to perform work as directed by Civeo at Civeo’s accommodation village at Dysart.
Liability and quantum are in issue and Hays have claimed contribution against Civeo under s 6 of the Law Reform Act1995.
The Plaintiff’s Employment and Training
Exhibit 9 establishes that the plaintiff was employed on a casual basis between 15 February 2019 and 27 February 2019 to work in the position of “facilities - stores/grounds” at Civeo Dysart.
The letter of the plaintiff’s engagement, Exhibit 9, informed the plaintiff “Your host employer will provide you with a site specific induction on your first day. Should this not occur, please contact me.”
According to the contractor site specific induction,[1] the plaintiff was inducted on 15 February 2019 by Ms Tamika Ammer. Ms Walchsofer, the village manager of Civeo Dysart, was in charge of the 1,500 rooms and “oversee all the departments and the welfare of every staff and guest”.[2] Ms Walchsofer could not state the number of facilities cleaning staff that were employed at Civeo Dysart in February 2019. According to page 80 of the additional trial bundle, Ms Walchsofer started her role at Civeo on Thursday 14 February 2019.
[1]Exhibit 19 Additional Trial Bundle, page 65.
[2]T2-68, lines 25-30.
On 15 February 2019, a series of meetings occurred. There was first a management review meeting attended by Ms Walchsofer, Tamika Ammer, Anelin Galang, Chris Richardson, Vikki MacEarchern, Shane Krump and a person identified as Shawn (probably Shawn Lawson). The other meeting was a toolbox meeting conducted by Ms Walchsofer and Tamika Ammer, which 15 team members attended, including Vikki MacEarchern who had been at the management review meeting, and the plaintiff.
Accordingly, it would appear on 15 February 2019, there were at least 21 people working for Civeo Dysart. Of those 21 identified persons, only Ms Walchsofer and Shawn Lawson were called in the defendant’s case. The identity of the person who trained the plaintiff on 15, 16, 17 and 18 February 2019 has not been established.
On 22 February 2019, Ms Walchsofer conducted a toolbox meeting. According to the attendance sheet[3] there were eleven attendees but only Ms Walchsofer and two of the attendees were called at trial (Kevin Nash and Rebecca Hudson). Shawn Lawson was not recorded as attending and the plaintiff’s name is absent from the attendees list. The only name of a team member that clearly attended both the 15 February 2019 and 22 February 2019 toolbox meetings is Vikki MacEarchern. Accordingly, it appears from the second defendant’s documents that there were ten different employees attending on 22 February 2019, taking the minimal total number of Civeo team members to 31 team members in the week period from 15 to 22 February 2019.
[3]Exhibit 19 Page 73 additional trial bundle.
The kitchen daily cleaning schedule[4] shows that kitchen bins were emptied, cleaned and lined in the morning and afternoon on Monday, Tuesday, Wednesday, Saturday and Sunday. On Thursdays and Fridays bins were emptied, cleaned and lined only in the morning. There is no evidence as to whether the task referred to as “bins emptied, cleaned and lined” refers to the bins inside or outside of the kitchen or the ‘hub’, nor was there any evidence to determine who initialled signed off on the tasks performed on Friday 22 February 2019. There is also an absence of evidence as to who performed that bin cleaning tasks on the day of the injury, Sunday 24 February 2019.
[4]Exhibit 19 Page 69 additional trial bundle.
The number of Civeo team members, their rotation of duties, and their presence and roles undertaken at any specific day is relevant to an important issue of fact between the plaintiff and the defendants. That issue, addressed below, is the interaction between the plaintiff and a female employee shortly prior to the plaintiff suffering his injury.
As to the task of waste and rubbish disposal, Ms Walchsofer[5] said that training and instruction of the task would be carried out by a supervisor or one of the senior staff or anyone in the department with a practical demonstration of how the task is performed. After practical training the trainer would go through the procedure with the new employee “on paper”. There is not any paper to show that the plaintiff was trained in the task of waste and rubbish disposal.
[5]T2-72.
Ms Walchsofer said of the induction and training of the trainees that most of the time they work with someone, and sometimes they work alone, and if working with someone (in the context of training) they would work with someone “sometimes for days”.[6] Ms Walchsofer emphasised that garbage bags should not be left on the ground but should be placed in the ute “straight” away to avoid creating a trip hazard.[7]
[6]T2-72, Line 44.
[7]T2-74, Line 9.
Mr Kevin Nash was the facilities supervisor for Civeo Dysart in February 2019. According to Mr Nash[8] the facility had numerous 240L wheelie bins throughout the village that were collected and taken away twice a week. Mr Nash emphasised that the system of work he taught was to open the lid of the wheelie bin, tie up the bin liner, pull the bag out, immediately put the bag in the back of the utility and then move to the next bin. Mr Nash emphasised that he did not train any new employee to place bin liners on the ground as that would “obviously” create a trip hazard.[9]
[8]T3-18.
[9]T3-18, Line 15.
Mr Nash was familiar with the facilities work instruction.[10] Mr Nash explained that after workers were trained practically, they were then taken through the facilities work instruction. The plaintiff was not taken through any facilities work instruction.
[10]Exhibit 19, Pages 37-41, additional trial bundle.
The facilities work instruction describes a process which is not the same as that as Mr Nash testified to, in that the written work instruction does not include the direction that the bin liner bags when full ought to be placed immediately into the rear of the utility rather than placed upon the ground and later moved to the rear of the utility. Mr Nash confirmed that when workers were competent at the task they would sign off the Waste and Rubbish Disposal Facilities Work Instruction. As the plaintiff did not sign any such document, and as workers were to be signed off when they were deemed competent at the task, I find that the plaintiff was not deemed competent at that task at the time of his injury.
Mr Nash’s description of the buddy system[11] was not one of a buddy system referrable to training. The buddy system for training was that a new employee would be buddied up with another employee to work as a team and that the buddy would be “for the duration of the day”. Mr Nash then said as rubbish collection was only done twice a week, all new employees would have a buddy with them.[12] This is an important feature of the case, as Civeo’s safe system of work required garbage bags to be placed in the utility straight away so as to avoid creating a tripping hazard and the system was to have two workers available to achieve this. Mr Nash also acknowledged[13] that the verbal instruction of lifting the garbage bags directly from the bin and placing them in the back of the ute was not in the written work instruction.
[11]T3-18.
[12]T3-18, Line 36.
[13]T3-19, Line 44.
Mr Shawn Lawson was employed in the maintenance department of Civeo on 24 February 2019 and had been employed at the Dysart Village for 16-18 months. Mr Lawson had no recollection of the plaintiff, but was able to confirm that the proper system of work was to park the work utility as close as possible to the bins and then take the rubbish “out of the bin, straight into the ute”,[14] then re-bag the bin. Mr Lawson explained the importance of placing the bag immediately in the ute was to guard against “any potential trip hazards or falls to either yourself or others”.[15] Mr Lawson considered that if the bin liners were too heavy, proper procedure was to use a team lift by getting a second person to help. Mr Lawson said of training new employees:[16]
“Usually, if someone new came on, they would come out with us for a day or two just to get a – like, get their head around how we would do the operations for everything, and, you know, we’d show them how to take the bags out, put them in the ute, re-line the bin, where the bin – like – where the tr – where the ute got full, where to go to empty it all.”
[14]T3-38, Line 28.
[15]T3-38, Lines 34-35, my underlining.
[16]T3-37, Lines 13-20.
Rebecca Anne Hudson had worked for Civeo Dysart for four years, having commenced as a housekeeper, then transitioned to the facilities team at a date which she could not recall. Of her training, Ms Hudson said:
“When you first start with the – with the – a site, everyone gets assessed a- like – a – a buddy to go along with them to show them what to do and where to go and that sort of stuff.”
Ms Hudson said when she first transferred into facilities, she buddied up with someone for the first week to do on-the-job training. Ms Hudson said she was trained to tie the bin liners up, take the bin liner out of the bin, put them immediately in the back of the ute and then go to the next one. Ms Hudson said she could not recall who her first buddy or trainer was and that she may have been buddied up with a number of people.[17]
[17]T3-6.
In cross-examination, however, Ms Hudson was reminded that she had provided a written statement in late 2019 where she had asserted that she had moved into the facilities team about a week before the incident on 24 February 2019 and that her assigned buddy was Shawn Lawson. When reminded of her statement, Ms Hudson confirmed that was indeed correct and that Mr Lawson was buddied only to Ms Hudson for the first week.
The plaintiff asserted he had been trained by a male but could not recall his name, which is understandable given the plaintiff was employed at Civeo Dysart for less than two weeks. There is an absence of paperwork establishing whom of the many other male Civeo employees may have been the plaintiff’s buddy or trainer.
Ms Hudson was asked whether she knew how many other persons were employed in facilities at Civeo Dysart on 24 February 2019 and she answered:[18]
“No, not exactly, because we’ve got a rotating roster. So we do two – our full time staff do two weeks on and one week off, so at any given time, we’ve got people on holidays. So we’ve got Kevin Nash was our supervisor and Shawn Lawson and Lino – I can’t remember his last name. And then there was – so there were three full time employees plus our supervisor.”
[18]T3-9, Line 48 – T3-10.
Ms Hudson must be mistaken as to who was working on 24 February 2019 as the plaintiff certainly was.
The person Lino has not been identified by any witness. What is known about Lino is that he is male. It is accordingly possible that Lino was the buddy provided to the plaintiff, however, that may not be the case, it may be another male as neither defendant is able to identify the male buddy who trained the plaintiff.
Ms Hudson was understandably uncertain as to the number of persons employed in the facilities team as she was new to the team and a lot of time has elapsed since February 2019. Furthermore as it is clear that the plaintiff was employed in the facilities team as at 24 February Ms Hudson must be in error as she excluded the plaintiff from being present to work in Civeo facilities. Importantly, in providing the evidence, Ms Hudson said she was unsure and did comment “I don’t really know.”[19]
[19]T3-10, Line 12.
Although Ms Hudson did assert that she was the only female employed in the facilities team as at 24 February 2019, that would appear to be based upon her incorrect memory and the incorrect premise that there were possibly four persons employed in facilities on that day, being the three fulltime employees she identified, Shaun Lawson, Lino and herself, as well as a supervisor, Kevin Nash.
The importance of Ms Hudson’s evidence can be seen by reference to the allegations made by the plaintiff as to both his training and what occurred on the morning of 24 February 2019. The plaintiff asserted that in his first four to five days of his attendance at Civeo Dysart, he was trained by a male work buddy.
The plaintiff asserted that in respect of the task of emptying the bins, that:[20]
“…We were told to basically tie – open the lid, tie up the tops of the bags, lift them out, put them down, put the new liner in, go to the next one, and keep going on and on up until we’ve got to the end of the row of bins, then come back and collect them and take the bags to the ute.”
[20]T1-10, Lines 29-34.
The plaintiff asserted that if the bags of rubbish were too heavy: [21]
“We were told to lie them on the ground once we’ve tied – lie the bin on the ground, drag the bin out on its side, and then stand the bin up, put the new liner in, and yeah, put the bag in the ute, the ru – full bag of rubbish in the ute”…“Only when we were coming back.”
[21]T1-11, Lines 5-10, 22.
The plaintiff then said if he couldn’t then lift the bag into the ute, he was advised he should call for assistance. The plaintiff explained that his buddy had trained him to take all of the bags out before placing them in the ute so that he would save time rather than walking back and forth with each bag. There is no evidence to contradict the plaintiff’s evidence as to how he was trained in the task of rubbish removal. The plaintiff’s description of his training does accord with Civeo’s written instructions for the task of waste and rubbish disposal.[22]
[22]Exhibit 19, page 39.
In paragraph 14(b) and 14(k) of the first defendant’s written submissions, the first defendant submits that when the plaintiff was describing his training, he gave evidence in chief that he was trained to put bags straight onto the back of the utility. The submission is made with respect to the plaintiff’s evidence at T1-11, Lines 6-10 and T1-13, Lines 36-40. I do not accept this submission.
The plaintiff clearly gave evidence of his four or five days of training in his first week of work at T1-10 that he was trained in an area where there were numerous wheelie bins, about eight in a line, up to 10 metres apart and that he was told to “Open the lid, tie up the tops of the bag, lift them out, put them down, put the new liner in, go to the next one, and keep going on and on up until we’ve got to the end of the row of bins, then come back and collect them and take the bags to the ute.”[23]
[23]T1-10, Lines 29-34.
The plaintiff described his training as not being behind The Hub but rather being further back behind the mess hall[24]. The plaintiff’s evidence as to instruction preceded the evidence at T1-11, Lines 6-10, and importantly speaking of when the full bags of rubbish were to be placed onto the ute, the plaintiff specifically said that the bags were to be put in the rear of the utility “only when we were coming --- we were told to go empty the bins and then pick them up on the way back --- as we were coming back, so we’re not walking taking one back out, going back to the ute, next one, back and forth, to save time…”[25]
[24]T1-10, Line 45.
[25]T1-11, Lines 20-25.
I accept the plaintiff’s evidence as to how he was trained. I find the plaintiff was not trained to perform rubbish disposal in accordance with Civeo’s safe system of work as he was not trained to immediately place full bags of rubbish into the rear of a work utility so as to avoid trip hazards to himself and others.
The Incident on 24 February 2019
Two difficult issues of fact are raised by the parties. They are whether the plaintiff had an interaction with Rebecca Hudson or some other female immediately prior to the incident and what occurred in the incident, in particular which bag did the plaintiff trip on.
The plaintiff described that the incident in which he was injured occurred around 10:30am when he was assigned to empty the wheelie bins at the back of The Hub. The Hub at Civeo Dysart was described as a pub gathering area. The plaintiff described that there were four or five wheelie bins at the rear of The Hub and that he drove his work utility to a position just behind The Hub near the wheelie bins with the tray of the utility facing The Hub.
The plaintiff described the rubbish in the wheelie bins as being heavy and full. The plaintiff said when he came to the first bin, he opened the lid, tied the bag at the top of it, but realised it was too heavy and therefore put the bin on its side. The plaintiff then asserted that he “called out” and attempted to put the bag on the back of the ute but found it was too heavy and he could not do it. The plaintiff asserted that he called out to a female who was driving past in a golf buggy. The plaintiff asserted the golf buggy was some 10-15 metres away and was being driven by a female that he could not recognise as he had only been working for a few days. The plaintiff asserted that he called out to the female driving in the golf buggy 10-15 metres away that he needed assistance with lifting heavy bags and that the female did not do anything. The plaintiff asserted that the female continued driving off in the golf cart.
The plaintiff then described that he “went back to start emptying the rest of them”.[26] The plaintiff’s evidence was that he got the second bag out using the same procedure as the first bag, however, after he had slid the bag out of the bin, a wasp came towards him and he said he stepped back, causing him to fall over one of the bags he had removed.[27]
[26]T1-14, Line 18.
[27]T1-14, Line 24.
The plaintiff described his tripping and falling as “bang”, that is, happening very quickly and that as he fell backwards onto the ground, his left elbow struck the concrete. The plaintiff said that he could not be sure how many bags he had taken out, although he was “pretty certain it was oh – it was only one or two. Seriously, it wasn’t like I did a heap of them…”.[28]
[28]T1-14, Lines 41-44.
On behalf of the defendants, it is asserted that the plaintiff’s evidence concerning the incident ought not to be accepted. It would appear within 22 minutes of the incident occurring, a photograph was taken which became exhibit 16 and showed the accident site with four wheelie bins standing and four full bin liners situated on the concrete in close proximity to the rear of a work utility.
The plaintiff asserts that Exhibit 16 does not show the accident site as it was when he was injured. I do not accept this aspect of the plaintiff’s evidence. I accept that Exhibit 16 does show the accident site and although it was taken approximately 22 minutes after the incident, I accept that the photograph shows the true position of the objects relevant to the plaintiff’s injuries at the time of the incident other than the golf buggy tray. It seems to me to be unlikely that any person would interfere with the accident scene, particularly given the plaintiff’s accident had caused serious personal injury which required hospitalisation. I therefore find as a fact the plaintiff had taken four bag liners from the wheelie bins and left them on the ground prior to the incident occurring. That discrepancy does not, however, cause me to doubt the plaintiff’s evidence as to the how the incident occurred, particularly as the plaintiff was uncertain as to the number of bag liners he had removed.
The plaintiff’s description of attempting to put the heavy bag of rubbish into the ute prior to the incident at T1-13, lines 36-40 must be viewed in context of what occurred on the morning of the incident. That is, the plaintiff had been tasked with removing the bins from behind The Hub, a task which he had not previously performed, and a task, which as shown in Exhibit 16, the bins were not placed up to 10 metres apart but were rather close. There was accordingly, logically, no time saving utilising the method in which the plaintiff had been trained. The important point is however that the plaintiff had been trained that it was the correct method, and therefore acceptable, to leave garbage bags full of garbage on the ground prior to being loaded into the utility.
In paragraph 13 of his further amended statement of claim the plaintiff made allegations including the identification of the work colleague as another colleague driving past in a buggy. By paragraph 13(g), the plaintiff has alleged that the other work colleague “saw the bins and acknowledged they were heavy and drove off”. That does differ from the plaintiff’s evidence in that the plaintiff did not assert that the female colleague “acknowledged the bins were heavy” as the plaintiff’s evidence was that the female driver did not do anything that suggested the plaintiff had even obtained that person’s attention.
The second defendant, by paragraph 12(d) of its defence, positively asserted that on or about 24 February 2019 at about 10:30am Ms Hudson was driving past The Hub area in a utility vehicle.
Paragraph 10(d) of the defence of the second defendant asserts that Ms Hudson, having observed the three or four garbage bags on the ground stopped the utility next to the plaintiff and directly asked the plaintiff if he required any assistance to lift the garbage bags onto his utility to which the plaintiff replied “No, I’ve got this.”
The second defendant alleges that Ms Hudson then did not assist the plaintiff to lift the garbage bags. The second defendant’s version, namely that Ms Hudson had voluntarily come to the plaintiff’s assistance, but the plaintiff did not seek her assistance, was put to the plaintiff and he denied that was so.[29]
[29]T1-38.
Accordingly, Ms Hudson’s version of what occurred and whether it occurred on 24 February 2019 was critical to the second defendant’s case.
At the commencement of her evidence, Ms Hudson said she did not know who the plaintiff was and could not identify him. Despite this, Ms Hudson was asked in evidence in chief “Did something happen on the day in question when you approached Mr Schofield?” An objection was taken to the leading question as Ms Hudson has positively sworn that she didn’t know who Mr Schofield, the objection was upheld.
The next question was “Did you have any interaction with Mr Schofield on 24 February 2019?” Answer: Not really. Not – not that I can recall. I just remember driving past a staff member with rubbish on the ground, asking if they needed assistance. They didn’t, so I kept going.”[30]
[30]T3-7.
Ms Hudson was then asked “Do you have a recollection as to when you stopped there?” Answer: “No, not really, but I do remember. I mean, I did the bins e – every couple of days there. And I do remember seeing bins lined up there and asking someone if they needed a hand and – but I don’t remember much about the day, no, because we used to do rubbish all the time.”
Ms Hudson could not identify who the male was and thought that her interaction with the male occurred in her first week at facilities. Ms Hudson’s evidence[31] was that her interaction with her co-worker in which to help lift the bags was refused occurred on a day that she was driving the other ute and she believed she “would have been doing bins across the road on the other side.”
[31]T3-8, Lines 30-35.
Ms Hudson’s evidence is that she noticed that what occurred was “out of the ordinary, was all the bins lined up, because I’d never seen that before, because we --- as I said, we generally put them in one by one…”[32]
[32]T3-10, Lines 30-35.
In cross-examination, Ms Hudson did confirm that she was not given instruction one way or the other whether the garbage bags or liners could be placed on the ground before being put in the utility.
Ms Hudson had some difficulties with recalling precisely what occurred and when it occurred, and Ms Hudson could not recall the identity of the co-worker that she had an interaction with, let alone the date of the interaction. I do accept the evidence of Ms Hudson that an interaction with a male co-worker occurred but I consider that it occurred sometime in her second week of work.
I accept that Ms Hudson did have an interaction with a male colleague in the second week of employment in late February or early March of 2019, whereby she did drive past in a work utility and did ask a fellow worker, who had a number of bin liners on the ground, whether he required assistance in lifting them, to which the male worker replied that he did not.
What I do not accept is that interaction with that male worker involved interacting with the plaintiff, and that it occurred on the morning of 24 February 2019. I accept the plaintiff’s evidence that he was trained by his buddy in the manner that he indicated, that is, to take all of the plastic bags out of the bin and place them on the ground before loading them in the back of the utility.
As there is certainty that the plaintiff commenced his work at Civeo Dysart on 17 February 2019 and as Ms Hudson’s signature is absent from the toolbox training meeting from 15 February 2019, it seems to me that the plaintiff commenced his employment approximately one week earlier than Ms Hudson. Ms Hudson therefore commenced her work in facilities on or about 22 February 2019.
The likelihood is therefore that when Ms Hudson commenced employment, the plaintiff was performing his tasks as shown to him by his buddy instructor by laying the garbage liners on the ground prior to lifting them into the utility. As this is contrary to the way in which Ms Hudson was trained, it accords with common sense that Ms Hudson would presume there was a problem and stop and ask her fellow worker if he required assistance.
There is, however, no convincing evidence that that occurred on the morning of 24 February 2019 as opposed to any other occasion in that week or the next week.
A significant discrepancy between the two versions is that the plaintiff is certain that the female co-worker was driving a golf cart, whereas Ms Hudson is certain she was driving a work utility. What is also plain is that there are numerous other female employees at Civeo Dysart on any particular workday. Accordingly, it seems to me that the plaintiff’s version of a female driving past in a golf buggy and not assisting him is not inconsistent with Ms Hudson’s version that on a date unknown in late February or early March 2019 that she did offer a male colleague assistance with lifting garbage bags off the ground. A second feature is that the plaintiff was injured in Ms Hudson’s first week of work when Ms Hudson said she was placed with Mr Lawson and was being trained by Mr Lawson. A male co-worker is not mentioned in the plaintiff’s nor Ms Hudson’s versions of the event.
I do accept the first defendant’s submission that there is some inconsistency in the versions that the plaintiff had provided concerning what occurred in the incident. Perhaps the principle inconsistency relates to the number of bags which have been removed prior to the accident occurring as the plaintiff has alleged the accident occurred after he had laid the second bin onto the ground with the wasp flying out of the second bin, whereas, as discussed below, it seems to me on the basis of Exhibit 16, the incident occurred after the plaintiff has removed the bin liner from the fourth bin and stood it back up when the wasp has come out of the fourth bin.
Paragraphs 16-26 of the first defendant’s written submissions detail several inconsistencies. The inconsistencies as to the version of facts detailed there include evidence of Mr Nash that the plaintiff told him he had fallen swooshing a wasp away and made no mention of tripping over a garbage bag. The recording of the Dysart Hospital notes of tripping over a garbage bag but saying nothing about stepping backwards towards the garbage bag. There is the additional evidence of Mr Corry that the plaintiff had told him he tripped over the garbage bag he was dealing with as set out in the incident report prepared by Mr Corry. Mr Dwyer of WorkCover gave evidence of the plaintiff saying on 27 February 2019 that he had been stung by a bee/wasp while pulling a garbage bag and fell over backwards. Dr Boys has it recorded that the plaintiff told him that the incident occurred as he was sliding the rubbish bag out as a wasp was flying in and the plaintiff had overbalanced awkwardly across the bag, falling to the concrete.
I consider each of these inconsistencies to be relatively minor inconsistencies in respect of an incident which occurred within a very short period of time.
It does seem to me however that the plaintiff’s evidence as to how the incident occurred is generally consistent with instructions he provided to his solicitor, and as set out in Exhibit 5. In this version, the plaintiff has asserted that he had interaction with the wasp which caused him to move backwards and his left foot to be caught on the bottom of the bin bag that he had pulled out earlier which caused him to fall. That, it seems to me, is consistent with the plaintiff’s evidence.
Absolute precision in the description of how an incident occurred provided in a consistent manner over a period of time is not a pre-requisite for acceptance of how an incident occurred. In Cains v Mathers Shoes Pty Ltd [1993] QCA 193, Fitzgerald P and McPherson JA were faced with an appeal in which a trial judge had dismissed the plaintiff’s claim because the plaintiff had described the incident in which she fell as her “slipping over” in cross examination where she had described it in evidence as an instance where she had “tripped”. Their Honours said in allowing the appeal:
“First, in referring to her use of the words “tripped” and “slipped” the trial judge said that in ordinary language those two words describe quite different human movements. Whether that is always so may be open to question; but in any event, it is difficult to be sure that the plaintiff herself was using those words according to the precise meanings, rather than indiscriminately to mean tripped. Indeed, to say slipped over rather than the plain slipped itself tends to suggest what she meant was tripped over. […] It is an obvious possibility that she might in ordinary language use “tripped” and “slipped” with less precision or discrimination than some other people do.”
Accordingly, although I do accept there is some inconsistencies in the versions provided by the plaintiff, I consider there is general consistency between the plaintiff’s evidence and his solicitor’s description of the accident in Exhibit 5. I accept the plaintiff’s evidence as to how the incident occurred in a general sense as set out in the findings of fact below.
The first defendant raises seven matters[33] in support of an argument the plaintiff ought not be regarded as a witness of credit, or at least ought not be regarded as a reliable witness. First is the plaintiff’s failure to give Dr Caniato a full history of his prior psychiatric symptoms. I accept that the plaintiff did fail to provide a full history of his prior psychiatric history to Dr Caniato, and this is not to his credit.
[33]Paragraphs 40-50 of the first defendant’s written submissions.
The second issue relates to paragraph 16 of his quantum statement and repeated to Dr Caniato where the plaintiff asserted he had no problems with police since he moved to Queensland, whereas there was an incident on 22 July 2017 when the plaintiff suffered a right shoulder injury when handcuffed by police and a struggle ensued. That related to a mental health issue suffered by the plaintiff. I accept that the plaintiff’s evidence in this regard was incorrect and that is again against his credit.
The third matter was the plaintiff’s use of medicinal cannabis. The plaintiff had asserted that he could produce evidence in court of his prescriptions for medicinal cannabis which were said to be in his hotel room, however, the plaintiff did not attempt to provide that evidence in court.
The fourth matter also concerns consumption of cannabis with the plaintiff pleading in his reply that he had ceased consumption in March 2018 conflicts with his admission to the staff at Mackay Base Hospital following the incident that he smoked cannabis occasionally. Again, that does not assist the plaintiff and is a matter against his credit.
The fifth matter relied on by the first defendant is his interaction with a female co-worker being irreconcilable with his statutory declaration. As discussed below, I do accept what is stated in the statutory declaration and accordingly, it seems to me that it is a matter against the plaintiff’s reliability.
The sixth matter is the ownership of the property at Millmerran. The plaintiff asserted it had been purchased by his mother and step-father, whereas Exhibit 22 shows the plaintiff in fact owns the property free from any registered encumbrance. The plaintiff’s mother, however, was called and did confirm that she and her husband did provide the plaintiff with $250,000 to purchase the property and there was an unregistered agreement the plaintiff would repay the $250,000 from the proceeds of the sale if he ever sold it. I do not consider that is a matter against the plaintiff’s credit, although his evidence differed from the true position, as it seems the property was entirely or mostly financed by the plaintiff’s mother and step-father.
The next matter is the plaintiff’s reference to pulling the bin liner out “more between legs”[34]. This can be contrasted with his evidence at T1-61, Lines 4-9 where he said the bag was never between his legs. Again, in respect of the incident, it seems to me that as it occurred in an instant, it is quite understandable that there will be minor inconsistencies in respect to the minor detail as to how and when he tripped on the bag. I do not consider these minor differences to affect his credit not reliability, as it is, it seems to me, entirely to be expected that there would commonly be some difficulty in providing precise detail of the minutiae of what occurred during any slip or trip.
[34]T1-61, Lines 1-2.
The last matter relied upon by the first defendant was the submission that the plaintiff attempted to mislead the court with respect to the level of his computer literacy, and his assertion that “I don’t use computers”[35] and that can be contrasted with his creation of his “music” involving graphic design imaging software to merge files and coordinate scrolling lyrics, which he said he did on an “old laptop”.[36]
[35]T1-73, Lines 13-14.
[36]T1-85, Lines 1-3.
It is accepted the above matters in combination do affect the assessment of the plaintiff’s credit and reliability. They do so, in my view, to a relatively minor extent. I consider that the plaintiff ought to be accepted as a generally honest witness and mostly reliable witness, however, as discussed below, where there is objective or earlier evidence as to what had occurred, I do prefer the objective or earlier evidence. I do, however, consider it appropriate to be cautious of the plaintiffs evidence more so on the basis of reliability rather than honesty.
Although, as discussed above, there are several aspects of the plaintiff’s evidence which were not satisfactory, I do accept the plaintiff’s evidence as to how the incident occurred, and that includes his request to a female co-worker for assistance. What I do not accept is that that female employee was Ms Hudson, as I accept Ms Hudson’s evidence that if Ms Hudson was asked for assistance, she would have provided it. I accept Ms Hudson’s evidence that she was driving a work utility and on the occasion she refers to, not being the morning of 24 February 2019, on her way to do bins at another place.
Indeed, given that the plaintiff was trained to lie the plastic bin liners on the ground prior to lifting them into the utility, it seems to me more likely than not that on an occasion subsequent to the morning of 24 February 2019, Ms Hudson had observed some other male employee to whom Ms Hudson offered the assistance.
On behalf of the defendants, it is argued that the plaintiff’s version of how the incident occurred ought to be rejected as it is inconsistent with the evidence of Ms Hudson. On behalf of the defence it is submitted that it was Ms Hudson who had the interaction with the plaintiff on the morning of 24 February 2019 prior to the plaintiff being injured. I have several difficulties accepting this submission. The first is that the plaintiff asserted that the female co-worker was driving a golf cart, whereas Ms Hudson was driving a work utility. The second is that it would be inconceivable for Ms Hudson not to have recalled that her interaction with her co-worker occurred on the very day that the plaintiff suffered such a severe injury that he required hospitalisation. The third is Ms Hudson has no recollection of the person that she had the interaction with, nor could she describe him.
The plaintiff is a slight person who weighed approximately 53kg at the time of the incident, and, consistent with his hobby, presents with the appearance of a rock musician. In my view, it would be very difficult to accept that if Ms Hudson in fact had an interaction with the plaintiff on the morning of the accident, she would have forgotten that was the case, or be able to describe him. The fourth is that Ms Hudson commenced in facilities on or about 22 February and was buddied with Mr Lawson for 1week and so it could not have been Ms Hudson driving past on her own on 24 February 2019.
As discussed above, I am conscious the plaintiff has been inconsistent in several aspects of his evidence, including his description of his interaction with his female co-worker.[37]
[37]T1-14.
The plaintiff’s evidence of the interaction was that he observed a female co-worker driving past in a little buggy ute and he called out to her as he needed to get some assistance with lifting the heavy bags into the ute. The plaintiff’s version in his evidence-in-chief was that the lady kept driving off and did not do anything to suggest that the plaintiff had obtained her attention.
That must be contrasted with Exhibit 6, the plaintiff’s statutory declaration declared 21 January 2020 where his version was that he had a conversation with the female co-worker, then the female co-worker tried to lift one of the bags out of a bin and said something like “they are all heavy, we will pick them up on the way back”. These versions are quite inconsistent and it seems to me I should prefer the earlier sworn version. I prefer the earlier version because it is earlier in time and the plaintiff is not an entirely reliably historian.
There are two important factual matters, not in contest, which do impact my findings of fact concerning how the incident occurred. The first is that the plaintiff had received his training from a male buddy in emptying the wheelie bins around the huts and dormitories. As explained in Exhibit 6, there were a series of wheelie bins located at various points along the pathways between the huts and dormitories, and so the plaintiff was trained by his buddy to walk along checking the bins to see how full they were. The plaintiff was trained that if the wheelie bins were more than three-quarters full, he would tie the bag up inside the wheelie bin before pulling it out and placing the bag beside the bin and then he would place a new empty rubbish bin liner inside the bin.
The second feature is that the morning of 24 February 2019 was the first occasion that the plaintiff had attempted to remove rubbish from behind The Hub. Sometime prior to 24 Feb 2019, a transformer at Civeo Dysart had blown causing the kitchen to be inoperable. Cooking was then undertaken on barbecues situated at The Hub. The result was that the wheelie bins at the back of The Hub were full of food waste and therefore very heavy. The plaintiff explained in Exhibit 6 that food waste was normally dealt with by the catering staff in the mess hall. Accordingly, the plaintiff was faced with a task for which he was familiar, emptying rubbish bins, but with a change in circumstances, namely that the bins were full of kitchen waste and were heavy. The plaintiff dealt with the bins utilising the methodology that his buddy had trained to do, that is lying the wheelie bin on the ground and sliding each bin liner from each bin.
An acceptance of this plaintiff’s version in his statutory declaration of 21 January 2020 (Exhibit 6) may suggest there ought to be a finding of contributory negligence, however, as explained in paragraph 7 of Exhibit 6, the plaintiff’s plan was to remove all the bags from the wheelie bins and leave them and then go and get assistance to lift the bags. Again, a consideration of Exhibit 16 is important because it seems to me that the interaction with the female staff member did occur as he alleged, and it occurred soon after the plaintiff had removed one of the earlier bags of the four bags that were removed.
Furthermore, paragraphs 6 and 7 of the plaintiff’s statutory declaration of 21 January 2020 reveal it was the plaintiff’s intention to remove all the bags after the female co-worker had left him at the accident site behind The Hub, which is more in keeping with the plaintiff having removed all of the bags.
The plaintiff’s evidence is that the photograph Exhibit 16 showing the bag liners situated on the ground behind The Hub was not the same as at the time of the accident. I do not accept the plaintiff’s evidence in this regard because Exhibit 17 shows that Exhibit 16 was photographed at 10:52am on 24 February 2019 and that is only some 22 minutes after the accident. This is also consistent with Ms Walchsofer’s evidence that the photograph was taken soon after the accident.
The plaintiff has given different versions of which bag he tripped upon. In evidence, he has marked the incident site and the site of the bag upon which he tripped in Exhibit 4. That appears to differ from the markings on the photograph attached to Exhibit 5 which were markings not of the plaintiff but of the plaintiff’s solicitor sent by email on 7 April 2021. Again, it seems to me that I ought to prefer the plaintiff’s earlier version, that is, as indicated upon the photograph attached to Exhibit 5, rather than his evidence in Exhibit 4.
The effect of Exhibit 16, and for the purposes of description, as shown in the photograph below, I will nominated Bag 1 as the bag on the far righthand side, Bag 2 as the bag adjacent to Bag 1, Bag 3 being the bag closest to the centre and closer to the front of the photo, and Bag 4 being the bag on the far lefthand side which shows deformity. Similarly the bins are referred to as 1 to 4 from right to left (ie bin 4 lid is open):
In Exhibit 5, the plaintiff has nominated Bag 3 as the bag that he tripped upon. An important feature of Exhibit 16 is that bins 1, 2 and 3 have been completely emptied, re-lined, and stood up with their lids closed. Bin 4 shows that it has been stood up, however the bin liner is hanging over the lefthand top of the bin cavity with the lid being fully open.
I am also conscious that in paragraph 1 of Exhibit 5, the plaintiff’s version of 7 April 2021, was “when he moved back in his interaction with the wasp his left foot caught the bottom of the bin bag he had pulled out earlier, which caused him to fall.” Given the height of the bin at approximately 1.4 metres and therefore the likely height of the bag at something similar, as explained by the plaintiff in his evidence, Exhibit 16 appears to show that the fourth bin liner had been removed from the fourth bin and placed upon the ground.
Although the plaintiff, whilst being cross-examined, thought that he’d taken two or three bags out of the bins, it seems to me more likely than not on the basis of Exhibit 16 that he had in fact taken out four bags. I reject the plaintiff’s evidence at T1-55, Line 45, that all four bags were not out of the bins.
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 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 plaintiff has been asked many times by many different persons as to what occurred in the incident, and whilst there are minor differences, it seems to me that the basic version of emptying bins, placing bags upon the ground, a wasp coming towards him from a bin he emptied, and him stepping back and falling after tripping on a bag is a sufficiently consistent version of the incident that I consider to be truthful and accurate.
As the plaintiff said[38] the event occurred very quickly, or as the plaintiff put it “like a bang.”[39]
[38]T1-48, Line 20.
[39]T1-14, Line 20.
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.
Although the plaintiff has provided evidence in Exhibit 4 showing markings of the accident site, attempting to show the bins were in a different position and that he fell on the red X marked on the photograph, I do not accept the plaintiff’s evidence in this regard. I accept that the photograph Exhibit 16 showed the bins and bag liners in the position that they were immediately following the plaintiff’s accident and that the scene had not been disturbed by any person. The plaintiff had always asserted the accident occurred at approximately 10:30am and the photograph Exhibit 16 was taken approximately 22 minutes later at 10:52am. In the twenty-minute period, it is unlikely that anyone interfered with the scene as it was the scene of a serious accident. Furthermore, there would be no point to moving the garbage bins or the liners and placing them in any different position, as each of the witnesses called said the bin liners placed upon the ground were plainly a trip hazard, and so if someone was interested in cleaning up the accident scene, or making it safe, the garbage bags ought to have been removed altogether.
The fact that three of the bins have been completely cleaned with bin liners placed inside them and the fourth, the bin the furthest lefthand side of Exhibit 16, has been emptied and was found with its lid fully open and with a bin liner placed upon its side, suggests that the scene has not been tampered with. It also suggests that the plaintiff had in fact fully emptied the first three bins, the first three from the righthand side of the photograph, and, as the bin liner has not been placed in the fourth bin, the plaintiff had not completed his tasks on the fourth bin when he was injured.
Accepting most but not all of the plaintiff’s evidence as to the circumstances prior to, and at the time of the incident, I find as a matter of fact as follows:
(a)The plaintiff was a casual employee of the first defendant, labour-hired to the second defendant to work from 15 February 2019 to 27 February 2019 at Civeo Dysart.
(b)The plaintiff was employed to perform work in the facilities section of Civeo Dysart, performing stores and grounds duties.
(c)After a generic induction at the Civeo site, the plaintiff was placed with a male work buddy who provided practical demonstration as to the method that the plaintiff was required to carry out his duties.
(d)In respect of the task of rubbish removal, the plaintiff was instructed by his male trainer buddy to drive a work utility to the area where the bins were located, attend at a bin, open the lid of the bin, tie the top of the garbage liner, lift the garbage liner out of the bin and put it down on the ground, put the new liner in the bin and then go to the next available bin until each of the bin liners have been removed. The plaintiff was then instructed to collect the bags and take them and lift them into the back of the utility.
(e)The plaintiff was further instructed that if the full bin liners were too heavy to lift, he ought to lie the wheelie bin on the ground and then drag the bin liner full of garbage out on its side, then stand the bin up and put the new bin liner in the wheelie bin. The plaintiff was further instructed that if he was unable to lift the garbage bin liner full of rubbish from the ground to the tray of the work utility, he ought to call for assistance.
(f)The plaintiff was instructed to remove garbage bin liners full of garbage from behind The Hub prior to 10:30am on 24 February 2019.
(g)The plaintiff attended to the four wheelie bins at the back of The Hub, as shown in Exhibit 16, and after opening the first wheelie bin, he realised that the bags were too heavy and that he would need assistance to lift the bags. Soon after the plaintiff observed a female co-worker, not Ms Hudson, driving a small Civeo buggy (similar to a golf cart with a tray), approximately 10-15 metres away who, as set out in Paragraph 7 of Exhibit 6, came to his assistance, tried to lift a bag up and said words to the effect “These are heavy. We’ll pick them up on the way back.”
(h)The plaintiff continued his work as he’d been trained to do, by removing the garbage bin liners from the three remaining wheelie bins and leaving them on the ground in a position as indicated in Exhibit 16.
(i)After the plaintiff had removed the fourth garbage bag and placed it upon the ground, being the garbage bag situated on the left hand side of Exhibit 16, a wasp came from within or from the vicinity of the fourth wheelie bin towards the plaintiff, causing him to step backwards.
(j)The wasp stung the plaintiff on his left inner forearm.
(k)As the plaintiff was moving backwards away from the wasp, the plaintiff tripped on the third garbage bag (Bag 3), fell to the ground and suffered injury to his left elbow.
Negligence
The parties agree that the first defendant owed the plaintiff a non-delegable duty of care to take precautions against risk of injury that was foreseeable and not insignificant. The second defendant held essentially the same duty of care.
The defendants argue[40] that the risk of a plaintiff tripping on a bag which he had only just and temporarily placed upon the ground was not a risk which could reasonably be considered to be a significant risk such that the plaintiff’s claim ought to fail.
[40]Exhibit 28 Paragraph 81 First Defendant’s Written Submissions.
Underlying this argument is the defendants assert that the plaintiff has failed to frame the risk in a proper way such that the plaintiff has stated the risk at too great a level of generality as the plaintiff’s formulation of risk failed to incorporate what was fundamental to the occurrence of the incident, that is the plaintiff’s sudden movement to avoid the wasp without regard to his surroundings.[41] On behalf of Civeo it is argued[42] that the risk ought to be defined with respect to the presence of the wasp causing a worker to have a fright by reference to an analogy of a worker placing a toolbox down, being frightened by a wasp and tripping over his own toolbox. That, however, to my mind, is not analogous at all. It has to be recalled that Civeo has 1,500 rooms at its complex in Dysart, and the evidence is there are numerous 240L wheelie bins throughout that large complex which are emptied twice a week. Emptying garbage bags was a frequent task, which is performed in the manner in which the plaintiff was trained, that is by leaving garbage bags all about the place, would create hundreds of potential tripping risks and as Mr Lawson correctly identified, the risk being to the person moving the garbage bag or to another person.
[41]Exhibit 28 Paragraph 63 First Defendant’s Written Submissions.
[42]Exhibit 28 Paragraph 68 First Defendant’s Written Submissions.
On behalf of the plaintiff, the risk was defined as the risk of suffering personal injury by tripping over bags of rubbish that had been emptied onto the ground from several 240L wheelie bins before transferring them into a work vehicle.
In Tapp v Australian Bushman’s Campdraft & Rodeo Association Limited [2022] HCA 11 at [106] the plurality said:
“The proper assessment of the alleged breach of duty depends on “the correct identification of the relevant risk of injury”, because it is only then that an assessment can take place of what a reasonable response to that risk would be. The enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages. The characterisation of the relevant risk should not obscure the true source of the potential injury.” [footnotes omitted]
In Boon v Summs of Qld Pty Ltd [2016] QCA 38, Gotterson JA with whom Homles CJ and Applegarth J agreed, said:
“[27] The appellant’s principal challenge to the analysis of risk is centred upon the learned trial judge’s statement at paragraph 74 of the Reasons that the appellant had failed to establish that a reasonable person in Mr Summerfeldt’s position would have foreseen that using a sharp knife to peel an orange during lunch would have involved a risk of injury to persons nearby, including the appellant. The appellant submits that the adoption of the peeling of an orange with a sharp knife as the relevant frame of factual reference for risk analysis was wrong and led to an erroneous conclusion with respect to breach of duty.
[28]In Roads and Traffic Authority (NSW) v Dederer, Gummow J, with whom Hayne J agreed, stressed the importance of the correct identification of actual risk to the assessment of breach of duty. His Honour observed that it is only through the correct identification of risk that one can assess what the reasonable response to the risk would be.
[29]The guidance given by Gummow J in Dederer requires a precise identification here of what it was that exposed the appellant to risk of injury. To my mind, it clearly was the conduct of Mr Summerfeldt in rising from a crouched position with a knife in his hand, the knife having a long, sharp blade which was unsheathed. The risk of injury to the appellant arose because, as Mr Summerfeldt was moving to an upright stance, the blade might have struck a passer-by such as the appellant.
[30]I am unable to agree with her Honour that the relevant conduct on Mr Summerfeldt’s part was using the knife to peel an orange. The mere actions involved in peeling the orange with the knife did not expose the appellant to any relevant risk.
[31]Once the appropriate risk is identified, the inescapable conclusions are that there was a foreseeable risk that a passer-by such as the appellant might have been struck by the blade of the knife; that Mr Summerfeldt ought reasonably to have known, at least, of that risk; and that the risk was not an insignificant one. The last conclusion is fortified by the admitted fact that the location where the incident occurred was frequently traversed by workers.” [footnotes omitted]
In the present case, the presence of the wasp as it approached the plaintiff and in fact stung him on the left wrist is not, in my view, the event which exposed the appellant to the relevant risk, nor is the action of the plaintiff walking backwards away from the wasp the relevant risk. The relevant risk was the risk of tripping on the garbage bags. Absent the garbage bags as a trip hazard, the plaintiff would not have tripped. I accept the submission that the risk of injury to the plaintiff arose as a result of the placing of the garbage bags on the ground in his workspace. This risk was expressly acknowledged by Mr Lawson. The reason for the immediate placing of the garbage bags into the back of the ute was to seek to prevent a tripping hazard both to the person who placed the bag on the ground and to other workers.
Furthermore, as set out in the evidence of Ms Walchsofer and Mr Nash, the senior employees of Civeo, expressly acknowledged that placing garbage bags on the ground would create a trip hazard. In terms of section 305B of the Workers’ Compensation and Rehabilitation Act2003, the resulted injury was foreseeable and not insignificant as against Hays and under common law as against Civeo.[43]
[43]Meandarra Aerial Spraying Pty Ltd & Anor v GEJ Geldard Pty Ltd [2012] QCA 315.
The plaintiff has provided a schedule of special damages totalling $864.80 which was not challenged.
The travel expenses of $425 will bear interest. The other items of special damages contained in the WorkCover payment recovery histories report show that WorkCover has paid $90,417.28 in special damages.
Fox v Wood damages are $3,352.
Superannuation Benefits
The parties agree that 10% ought to be allowed for loss of past superannuation benefits. As the future, the plaintiff submits the appropriate rate is 11.78% which is the rule of thumb approach.[56] The Defendant argues the rate ought to be 11.4%. I accept the plaintiffs submissions as it reflects the accepted rule of thumb approach.
[56]Heywood v Commercial Electrical Pty Ltd [2013] QCA 270.
Future Special Damages
Although Ms Howard, the occupational therapist suggests an ongoing need for aides and equipment, it seems to me that the plaintiff has demonstrated that he does not require aides and equipment. The plaintiff already has his vehicle modified. The plaintiff, it would appear, has not attended upon a medical practitioner for some years, however, as the prognosis is for ongoing degeneration, it appears likely that he may require some medical assistance in the future. It seems to me a small global sum of $7,500 ought to be allowed for all future medical expenses.
In summary, I quantify Mr Carey-Schofield’s award as follows:
First Defendant Second Defendant General damages - ISV 20 $37,920.00 $70,000.00 Interest on general damages[57]
2% on $35,000 for 5 years- $7,000.00 Past economic loss $185,220.00 $185,220.00 Interest on past economic loss[58]
$56,696[59] x 1.995% x 5 years (first defendant) & at 5% for 5 years (second defendant)$5,655.00 $14,174.00 Loss of superannuation benefits (past) @ 10% $18,522.00 $18,522.00 Future loss of economic capacity $250,000.00 $250,000.00 Loss of superannuation benefits (future) @ 11.78% $29,450.00 $29,450.00 Griffiths v Kerkemeyer - $58,676.00 Interest on past domestic assistance @ 2% for 5 years - $5,867.00 Future domestic assistance $131,865.00 Special damages – Paid by plaintiff $864.80 $864.80 Interest on past medical expenses[60]
$424 x 3.96% for 5 years (first defendant) & at 5% for 5 years (second defendant)$84.00 $106.00 Special damages – paid by WorkCover $90,417.28 $90,417.28 Future special damages $7,500.00 $7,500.00 Fox v Wood $3,352.00 $3,352.00 SUB-TOTAL $628,985.08 $873,014.08 Less Workcover Queensland Refund - $125,389.57 - TOTAL $503,595.51 $873,014.08 [57]Nil against Hays - Workers’ Compensation and Rehabilitation Act2003 (Qld), s 306N.
[58]Reduced rate Hays - Workers’ Compensation and Rehabilitation Act2003 (Qld), s 306N.
[59]$185,220 less net WorkCover ($39,889) less Centrelink ($5,813 in 2019, $16,756 in 2020, $22,079 in 2021, $16,403 in 2022, $17,384 in 2023 and $10,200 in 2024) = $56,696.
[60]The section 306N of the Workers’ Compensation and Rehabilitation Act2003 rate of 3.96% as against Hays and the section 58(3) of the Civil Proceedings Act 2001 rate of 5% against Civeo is allowed for 5 years and not halved as the travel expenses were not incurred at a uniform rate over the 5 year period but rather incurred in 2019 and 2020.
Apportionment Between Defendants
Section 6(c) and s 7 of the Law Reform Act1995 provide as follows:
“6 Proceedings against, and contribution between, joint and several tortfeasors
Where damage is suffered by any person as a result of a tort (whether a crime or not) the following apply—
[…]
(c)any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.
7 Amount of contribution and power of the court
In any proceedings for contribution under this division the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.”
Civeo submits that a just and equitable apportionment is that it should foot 75% responsibility and Hays 25% responsibility, relying on TNT Australia Ltd v Christie.[61] On behalf of Hays it is submitted that it should bear no apportionment, with one hundred per cent being apportioned to Civeo. Hays supports its submission by reference to the facts in Market Form Managing Agency Ltd v Ashcroft Supa IGA Orange Pty Ltd [2020] NSWCA 36.
[61](2003) 65 NSWLR 1
The apportionment between defendants proceeds by reference to the extent to which each defendant’s misconduct contributed to the damage suffered by the plaintiff and the comparative culpability of the defendants[62].
[62]Robinson v Fig Tree Pocket Equestrian Club Inc & Ors [2005] QCA 271 per Keane JA at [23].
In James Thane Pty Ltd v Conrad International Hotels Corporation & Ors [1999] QCA 516, Thomas JA referred to two decisions where a complete indemnity, or a one hundred per cent finding against one defendant had occurred. At [17] Thomas JA referred to the New South Wales Court of Appeal decision in Higgins v William Inglis & Sons Pty Ltd (1978) 1 NSWLR 649. In that case, the plaintiff had been injured by a dangerous bull at a bull sale. The owner of the dangerous bull was held liable to the plaintiff, as was the auctioneer for the sale. Liability of the owner was based upon the owner’s non-delegable absolute duty of care as the owner of a bull who was aware of the bull’s dangerous propensities, however, the owner was not guilty of any actual fault when the plaintiff was injured as the owner’s son, when making delivery of the bull, had made a full disclosure of its dangerous tendencies to the auctioneer. After the owner’s son had handed the bull to the auctioneer with full disclosure, the owner was not in a position to exercise any control over the bull. In those circumstances, the auctioneer was ordered to provide a full indemnity to the owner of the bull.
Thomas JA also referred to his own decision in Evans v Port of Brisbane Authority (1992) ATR 81-169 where liability was apportioned one hundred per cent against the active tortfeasor, the Port of Brisbane, and zero per cent against the employer. Thomas JA pointed out that the Port of Brisbane had exercised effective control of the worksite and workers upon the worksite at the Port of Brisbane and that the employer could not exercise control over its own employees.
In Thane’s case, Thomas JA agreed with Williams J that the apportionment ought to be 90% against Conrad, the active tortfeasor, and only 10% against Thane, the plaintiff’s employer. As Williams J, at said [44] in Thane, it all depends upon the facts of the case.
In Thane’s case, an employee of Thane, Ms Tetu was injured due to a mechanical failure of a trapeze intended to allow an actor to be lifted at height through the auditorium. Conrad’s staff undertook control of the installation of the trapeze, which failed. The failure occurred due to improper installation of a swaged joint installed to hold the wire ropes of the trapeze. Thane, the employer, had engaged another company, Key Lago, to attend to the technical management of the show, as Key Lago professed expertise in technical management of musicals and scenic design.
Key Lago employed two persons, Mr Martin and Mr Clarke, who participated in decisions concerning the trapeze equipment and its management, but did not make a close inspection of the trapeze system when it was installed. Thomas JA considered an apportionment of 90% of responsibility to Conrad and 10% to Thane at [19] as he concluded that Mr Clarke and Mr Martin ought to have become more involved than they did in the choice of equipment and the manner in which it has been used (as they had that expertise) and as the employer Thane had a non-delegable duty of care, Thane was responsible for the default of Key Lago and its employees in failure to detect the defect and have it remedied. Thomas JA then commented in respect of Conrad’s responsibility:
“When a comparison is made however between this failure to act more intrusively in a situation essentially controlled by others and the conduct of those others which actually led to the unfortunate accident, the apportionment must reflect a very substantial difference.”
Williams J said at [43]-[46] as follows:
“[43] Having regard to all the findings and the whole of the evidence it is clear that the active negligence was on the part of Conrad and those for whom it was responsible. Any contributory negligence on the part of Thane was predicated on the fact that it failed to fulfil its obligation to ensure that the equipment was safe for use by its employees. The finding against Thane is effectively that it assumed that Conrad had rendered the lifting apparatus safe and that it should have taken more steps to ensure that such was in fact the case.
[44]Counsel for Thane relied heavily on the reasoning of Thomas J in Evans v Port of Brisbane Authority & Ors (1992) Aust Torts Reports 81-169. On the facts in that case it was held that the employer of the injured plaintiff should recover 100 per cent contribution from the active tortfeasors. It is not necessary to refer to the facts of that case in detail. There is no doubt as to the correctness of the decision of Thomas J on the facts then before him. But the facts here are not identical. Here were clear known dangers associated with the use of the trapeze apparatus and those dangers were, or should have been, clearly appreciated by Thane and those for whom it was responsible. In the circumstances they were not entitled to abrogate their responsibility by saying they trusted and believed in Conrad's employees. In hindsight it is obvious that simple checks would have revealed at an early stage at least some of the defects which were found to have contributed to the incident.
[45]However, the findings make it clear that Conrad was responsible for the construction, operation and maintenance of the apparatus and it was the negligence of Venker and Bowker, particularly the latter, which was the immediate cause of the accident.
[46]Given all the findings by the learned trial judge I have come to the conclusion that an apportionment of 30 per cent cannot be supported. However, as noted above Thane remained liable to some extent because of its failure to carry out an inspection which would have revealed defects in the system. In the circumstances an apportionment of 90 per cent against Conrad and 10 per cent against Thane more accurately reflects responsibility for the negligence as found.”
As Thane was a theatre production company and had no mechanical, engineering or construction expertise in the installation of a flying trapeze, it had engaged appropriately-qualified external consults (Key Lago) to act on its behalf. The task involved, namely the installation and utilisation of flying trapeze, may be fairly described as a complicated mechanical task calling for expertise. The position and facts in the present case are not of that nature. Nor is there any suggestion, similar to Evans v Ports of Brisbane Authority, that Hays were not provided unlimited access to the Civeo Dysart; the evidence is to the contrary – that they did visit as from time to time and perform checks upon the work being performed by Hays employees at Civeo Dysart.
Fundamentally, however, the task involved in which the plaintiff was injured was not an overly complicated task such that there can be no suggestion that Hays needed to deploy any external expert advice to assist it in discharging its non-delegable duties to its employee, the plaintiff. There is no specific evidence that Mr Corrie was aware of Civeo’s safe system of work for garbage disposal and, in particular to avoid trip hazards by having garbage bags removed immediately from the 240L wheelie bins and placed directly into the rear of the utility. Mr Corrie did go through Civeo’s paper based system.[63]
[63]T3-49.
What must have been plain to Mr Corrie however was that there were a great many 240L wheelie bins in the 1,500 room Dysart Civeo facility, with a small facilities team, tasked to empty those bins, such that the task of removal of rubbish would have been required to be performed at a rapid pace. If Hays had reviewed the risks assessments undertaken by Civeo in respect of waste and rubbish disposal, it would have observed, as set out in Exhibit 19 Page 45, that Civeo’s system of work included the direction that if a rubbish bag was full or too heavy, the bag was to be tied at the top, the bin was to be tipped over on its side, and the bag dragged out of the bin. The direction was then to gain assistance to lift the full bag into the utility. It seems to me Civeo’s documented safe work procedure did, contrary to its oral safe work system, permit full garbage bags to be placed upon the ground, which was acknowledged to create a trip hazard.
Hays had the ability to review Civeo’s safe system of work and point out the anomaly contained on page 45 of Exhibit 14, which allowed for garbage bags to be left on the ground, thus creating a trip hazard, with the non-documented and oral system of work which did not permit garbage bags to be placed upon the ground as it was expected to create a trip hazard for the workers and for others.
In these circumstances, it seems to me there is a significant default of behalf of Hays in failing to detect the anomalies and deficiencies in Civeo’s system of work. Simply observing in local councils’ garbage trucks emptying wheely bins shows that is a task designed for the heavy lifting by a machine, not a human. Furthermore, there are many sizes of wheely bins available, some smaller bins may be suitable for manual lifting. Any non-expert observing this would conclude there was a risk of injury form the lifting of bin liners from large wheely bins and the risk of tripping on the bin liners if they were left about a busy walkway. This is not a case of requiring any great expertise such as Thane v Conrad. The predominant finding of liability must, however, be upon Civeo as the body which was responsible for the design, implementation and enforcement of the safe system of work. It seems to me by analogy that the plaintiff’s case is much closer to TNT v Christie in terms of relevant apportionment between the actual employer and the labour hire.
In Market Form Managing Agency Ltd v Ashcroft Super IGA Orange Pty Ltd [2020] NSWCA 36, the apportionment of10% to the labour hire employer and 90% to the host hirer company occurred in circumstances where, despite reasonable efforts of the labour hire company to carry out inspections of the host employer’s premises, the labour hire company found no evidence of the risk that eventuated resulting in the employee’s injury. Accordingly, the small 10% apportionment against the labour hire employer primarily arose out of the non-delegable character of the employer’s duty of care. Again, the facts in the present case are different. Hays did conduct inspections, and had a proper inspection been undertaken, the anomaly in the Civeo system of work regarding trip hazards from manual rubbish disposal would have been identified.
I therefore consider that Civeo ought to be found 75% responsible for the injury sustained by the plaintiff and Hays ought to be found responsible for 25% of the injuries sustained by the plaintiff.
On 3 May 2024 parties were heard as to costs. I accepted the plaintiff’s submissions that I ought to make costs orders in accordance with the decision of Paskins v Hail Creek Coal Pty Ltd (No 2)[64] and Thomson v State of Queensland & Anor (No 2).[65]
[64][2018] 2 Qd R 518; [2017] QSC 213.
[65][2019] QSC 115.
The orders are as follows:
1.Judgment for the plaintiff against the first defendant in the sum of $503,595.51;
2.Judgment for the plaintiff against the second defendant in the sum of $873,014.08;
3.Pursuant to section 6(c) of the Law Reform Act1995, the first defendant recover contribution from the second defendant in the sum of $471,738.81;
4.That the first defendant pay the plaintiff’s costs of and incidental to the proceedings against the first defendant from 30 August 2021 on the standard basis to be agreed or assessed;
5.That the second defendant pay the plaintiff’s costs, including those costs incurred by the plaintiff in proceeding against the first defendant, 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;
6. That the plaintiff’s costs be assessed on the basis that, except insofar as they are of an unreasonable amount, the fees of two counsel should be regarded as costs necessary and proper but limited to fees for trial, otherwise to be in the discretion of the assessor.
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