Hays Specialist Recruitment (Australia) Pty Ltd v Carey-Schofield; Civeo Pty Ltd v Carey-Schofield
[2025] QCA 161
•2 September 2025
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 2021DIVISION:
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:
1. The first respondent's application dated 20 August 2024 to adduce further evidence is dismissed.
2. The appeal is dismissed.
3. 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.
4. The Court will determine on the papers the order which should be made as to the costs of the appeal.
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, consideredCOUNSEL:
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 respondentSOLICITORS:
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 respondentTHE COURT:
Overview
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.
[1]Carey-Schofield v Hays & Civeo [2024] QSC 60 (primary reasons).
By these appeals Hays and Civeo contend that the primary judge erred in giving judgment for the plaintiff.
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.
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).
For the reasons that follow both appeals should be dismissed.
Background
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.
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.
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].
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].
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].
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:
1.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).
2.As to waste and rubbish removal and disposal, the plaintiff was instructed to [100](d):
(a)drive a work utility to the area where the relevant wheelie bins were located;
(b)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;
(c)collect the rubbish bags and lift them into the back of his utility.
3.The plaintiff was also instructed that, if the bin liners with rubbish were too heavy to lift, he should [100](e):
(a)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;
(b)call for assistance if he was unable to lift the rubbish bag onto the tray of his utility.
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].
On the evidence the plaintiff was a relatively slight individual - he weighed around 54 kilograms (ts 2-32).
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.
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].
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].
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].
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 primary judge was also satisfied that it was the presence of the rubbish bag on the concrete apron that caused the plaintiff to trip. Accordingly, his Honour was satisfied that the plaintiff had established factual and legal causation - if the rubbish bag had not been left on the ground the plaintiff would have been able to move backwards away from the wasp and would not have tripped [116]. There is no express challenge on appeal to the causation finding. There is, however, a challenge to the primary judge's findings as to the mechanism by which the injury occurred.
The primary judge assessed damages making different awards against Hays and Civeo. The awards included $250,000 for future loss of earning capacity and $29,450 for future loss of superannuation benefits. These aspects of the awards are challenged by the appeals. We will examine the primary judge's reasons for these aspects of the awards when considering that part of the appeals.
The issues on appeal
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.
The appeals raise the following issues for determination:
1.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).)
2.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.
3.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).)
4.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).)
5.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).)
Issue 3 is advanced solely by Hays. Issue 5 is advanced solely by Civeo.
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.
Hays otherwise challenges the impugned factual findings on the basis that:
“(a)the findings were unsupported by any direct evidence given at the trial;
(b)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;
(c)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.)
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;
(c)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.)
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.
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.
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
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.
The plaintiff pleaded that he was tasked with rubbish removal from wheelie bins situated behind The Hub at the accommodation village (SOC[2] 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).
[2]Referring to the plaintiff's further amended statement of claim dated 11 March 2024.
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:
(a)the plaintiff was directed to undertake the removal of rubbish from the rubbish bins situated behind The Hub at the accommodation village;
(b)prior to this occasion, the plaintiff had not been tasked with undertaking the removal of rubbish from bins behind The Hub;
(c)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;
(d)bins placed at the rear of the hub consisted of 240 litre domestic wheelie bins;
(e)the plaintiff attempted to remove the rubbish from the wheelie bins in accordance with the work instruction but were too heavy;
(f)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;
(g)the plaintiff's work colleague saw the bins and acknowledged that they were heavy and drove off;
(h)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;
(i)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;
(j)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)
The pleader referred to this as 'the incident' (SOC par 13).
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.
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 Defence[3] 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)).
[3]Referring to Hays' further amended defence dated 7 March 2024.
Civeo's Defence[4] was in different terms.
[4]Referring to Civeo's defence dated 18 November 2021.
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)).
Accordingly, Civeo admitted, in substance, that the plaintiff tripped and fell over a rubbish bag that he left on the ground.
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
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.
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)
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).
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).
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).)
At that point, counsel for Civeo announced that senior counsel for Hays was going to finalise the rest of the cross-examination.
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).)
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).)
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).
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.)
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).
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:
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.”
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).
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).
Under further questioning, the plaintiff confirmed in relation to the photograph being Exhibit 4 that (ts 1-54):
1.The red 'X' was where he was standing.
2.The two green and two yellow roughly dashed lines represented where the wheelie bins started.
3.The green scribble at the very bottom of the photograph represented where the rubbish bag the plaintiff tripped over was located.
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).
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).
A copy of Exhibit 5 is reproduced below:
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).
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
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).
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)
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).
[5]Plaintiff's written submissions tendered 21 March 2024 (Plaintiff's WS) par 3.
Hays reiterated its pleaded case as to the incident in its closing submissions at trial (Hays WS[6] 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).
[6]Referring to Hays' written submissions tendered 21 March 2024.
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).
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.[7] 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).
[7]Civeo's written submissions tendered 21 March 2024 par 20.
We have dealt with Hays' closing submissions before Civeo's closing submissions because Hays was the first defendant and Civeo was the second defendant. It will, however, be appreciated that Hays' closing address was delivered after Civeo's closing address. Before giving his closing submissions, senior counsel for Hays had the opportunity to hear Civeo's closing submissions and the interactions between the primary judge and counsel for Civeo in the course of Civeo's closing submissions.
In the course of closing addresses the primary judge raised various matters with each of the parties. Among other things his Honour raised the significance of the photographic evidence and what inferences should be drawn from it. The matters raised by the primary judge are best mentioned when dealing with Issue 1.
The primary judge's findings as to the incident
The primary judge seemingly accepted that the plaintiff was assigned to empty wheelie bins at the back of The Hub [36].
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].
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.
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.
Specifically, the primary judge rejected the plaintiff's evidence to the effect that:
1.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].
2.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).
3.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].
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].
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]).
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].
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.
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.
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].
There was a partial deformity to bag 4 [89].
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].
In addition, while not mentioned by the primary judge in his reasons, there was uncontradicted evidence that the plaintiff did not recollect the water bottle to the right of the photograph and that he left his water bottle in the utility (ts 1-52). Mr Nash gave some evidence that, after the accident, the plaintiff requested a bottle of water and Mr Nash gave him one (ts 3-18). Whatever its provenance, the presence of the water bottle in Exhibit 16 did not assume any significance for the appeal. That feature of the photograph may be put to one side.
When its appeal was commenced, Civeo foreshadowed a challenge to the primary judge's finding that Exhibit 16 showed the accident scene undisturbed (Civeo ground 2(d)). However, pre-hearing Civeo abandoned that aspect of its appeal.[8] Similarly, although the plaintiff's written submissions in both appeals foreshadowed a challenge to the accuracy of Exhibit 16, senior counsel for the plaintiff withdrew the submissions to that effect at the appeal hearing.[9] Accordingly, for the purpose of the appeals this court must proceed on the basis that the photograph in Exhibit 16 depicts the scene as it was at the time of the plaintiff's accident (save for the buggy and the water bottle).
[8]Civeo's written submissions par 4.
[9]Appeal ts 1-4.
The primary judge concluded, on the basis of Exhibit 16, that the incident occurred after the plaintiff had removed the bin liner from bin 4 and stood it back up (ie the plaintiff had taken four rubbish bags from the wheelie bins and left them on the ground before the accident occurred) [41], [61], [92], [99]. The primary judge reasoned that:
“93. There is a consistent version from the plaintiff that after the wasp flew out of the bin, it startled him causing him to take a step backwards. As can be shown from Exhibit 16, the only bin that a wasp could have flown out of is bin 4. Given that bin 4 is standing vertically it seems to me that the wasp must have flown out after the plaintiff had re-stood the bin and placed the bin liner on the top left-hand corner of the bin.
94. If bin 4 were to be laid upon the concrete as the plaintiff said it was, even after the plaintiff had returned the bin to its standing height, it seems to me that the plaintiff's evidence is credible that when the wasp came towards him he stepped backwards. It seems to me it is also credible that if the plaintiff stepped backwards, his left foot, as explained in Exhibit 5 [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.
…
97. 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)
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]):
1.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).
2.The plaintiff attended to the four wheelie bins at the back of The Hub - those bins being as shown in Exhibit 16 [100](g).
3.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).
4.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).
5.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).
6.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).
7.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]).
8.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).
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.
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:
1.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.
2.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.
3.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.
4.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.
5.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).
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.
[72]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47].
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.
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).
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.
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: Mansfield v Director of Public Prosecutions (WA).[73] 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).
[73]Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486 [10].
We have already explained that the term 'claimant's proceeding' should be read and construed as 'claimant's proceeding for damages'. There is, however, a constructional choice as to the term 'claimant's proceeding'. It could mean the claimant's proceeding against the insurer/employer, ie the lis as between the claimant and the insurer/employer. Alternatively, it could mean the action by which the claimant is taking his or her proceeding against the insurer/employer. Under this alternative and somewhat broader construction, s 316(1) could capture a lis between the claimant and some other defendant where that other defendant was also a party to the action by which the claimant is taking his or her proceeding against the insurer/employer.
The former somewhat narrower construction is the ordinary and natural construction available on the text of the Act read as a whole. The alternative broader construction is a very strained construction that would lead to an inconvenient or improbable result.
In regulating access to damages the Workers' Compensation and Rehabilitation Act is primarily concerned with claims as between a 'claimant' (ordinarily, but not exclusively, a worker) and employers. Thus, for example, one of the objects in s 5 is that the scheme under the Act is to provide for the protection of employers' interests in relation to claims for damages for workers' injuries (s 5(4)(c)). The pre-court procedures in pt 5 of ch 5 are primarily directed to claimants and insurers/employers (see eg s 275, s 278). The Act provides that a proceeding brought for damages within the contemplation of pt 7 of ch 5 ordinarily 'must be brought against the employer' (s 300(1)). In regulating access to damages ch 5 ought to be taken as being primarily concerned with proceedings of that kind. Also, where the Act contemplates proceedings to recover damages against persons other than an employer, there is ordinarily language that expressly recognises such a possibility in terms (see eg s 207B(8)).
More telling is the operation of the preclusion under s 316(1), and its extent, if the alternative construction was to be accepted.
If the alternative construction was to be accepted, s 316(1) would apply to the action by which the claimant is taking his or her proceeding against the insurer/employer. Two things would follow in relation to the application of s 316 were that the proper construction of s 316(1). First, although having implications beyond orders about costs as between the claimant and the insurer/employer, the conditions for the making of an order are expressed solely in terms of the worker's written final offer and the insurer's/employer's written final offer. Second, there would be no possibility of the claimant obtaining a costs order against a non-insurer/employer defendant; nor of a non-insurer/employer defendant obtaining a costs order against the claimant. In both respects the alternative construction leads to such an inconvenient or improbable result that it must be rejected. That is even more so where the ordinary and natural construction available on the text of the Act read as a whole is that the 'claimant's proceeding' in s 316(1) refers to the claimant's proceeding for damages as against the insurer/employer.
While, for the forgoing reasons, we do not accept the alternative construction of the term 'claimant's proceeding' in s 316(1), it might be thought that the alternative construction is consistent with the purpose of the statutory provision. It might be thought that the possibility that a claimant might be able to recover costs against a non-insurer/employer defendant outside of - or in spite of - s 316 might tend to diminish the incentive to make and accept appropriate written final offers of settlement prior to the commencement of proceeding claiming damages for workplace injury. So too it diminishes the certainty as to the costs outcome in a given scenario (although not as between the claimant and the insurer/employer).
These considerations do not affect our conclusion as to the proper construction of the term 'in the claimant's proceeding' in s 316(1).
It must be remembered that, so far as the preclusion in s 316 does not apply, the court will be exercising a judicial discretion when considering whether and in what respect to order that one party pay another party's costs of a proceeding. The exercise of that discretion will be informed by the context. One material consideration, accepted in the single judge decisions of Paskins, Thomson and Reddock, will be whether the non-insurer/employer defendant's attitude to the claim forced the claimant to pursue a proceeding against the insurer/employer thus being put to the additional costs of pursuing the claim against the insurer/employer. Another contextual matter of potential significance will be the statutory purpose of s 316 and the important policy function it performs. Whether a non-insurer/employer defendant should be ordered to pay some or all of a claimant's costs in proceedings against an insurer/employer defendant - or whether such an outcome would be unjust having regard to the parties' written final offers and the outcome of the litigation - may be dealt with as a matter of discretion informed by the facts and circumstances of the individual case. Applegarth J recognised as much in observing that this was a 'relevant circumstance' (see [259] above).
So understood, the ordinary and natural construction of the term 'in the claimant's proceeding' in s 316(1) equally achieves the statutory purpose of the provision. For the other reasons we have given, the ordinary and natural construction is the proper construction of the term. The preclusion in s 316 is confined to orders about costs in the claimant's proceeding against the insurer/employer, ie the lis as between the claimant and the insurer/employer.
In the circumstances, s 316 did not preclude order 5 made by the primary judge on 3 May 2024. It is true that the order concerned the plaintiff's costs in his proceedings against Hays. However, the order itself was made against Civeo in the plaintiff's proceedings against Civeo; it was not made 'in the claimant's proceeding' for the purpose and within the meaning of s 316(1). The preclusion in s 316 does not extend as a matter of law to confine the court's costs discretion when making an order against a defendant other than the insurer/employer in a proceeding other than the claimant's proceeding against the insurer/employer. On the proper construction of the statutory provision, order 5 did not contravene s 316 of the Workers' Compensation and Rehabilitation Act to the extent that it included the plaintiff's costs of proceedings against Hays.
Issue 5 is resolved in favour of the plaintiff with the result that Civeo's ground 2(i) is dismissed.
Conclusion and orders
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.
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.
Accordingly, and for the reasons set out above, we would make the following orders in each appeal:
1.The first respondent's application dated 20 August 2024 to adduce further evidence is dismissed.
2.The appeal is dismissed.
3.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.
4.The Court will determine on the papers the order which should be made as to the costs of the appeal.