- Unreported Judgment
- Appeal Determined (QCA)
 QCA 180
SUPREME COURT OF QUEENSLAND
Court of Appeal
General Civil Appeal
12 July 2013
25 March 2013
Holmes and Gotterson JJA and Douglas J
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JUDGMENTS AND ORDERS – OTHER MATTERS – where representatives for the appellant failed to file the order of the primary judge from which the appeal was brought – where r 661(4)(b) of the Uniform Civil Procedure Rules 1999 provides that no appeal may be brought against an order which has not been filed without leave of the court – where no such application was made for leave on the hearing of the appeal – where further submissions were sought from the parties, and where the parties concur that leave should now be granted nunc pro tunc – whether leave should be granted
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS CLEARLY WRONG – GENERALLY – where the appellant unsuccessfully brought an action for damages for personal injuries sustained in a workplace accident alleging breach of contractual and common law duties – where the appellant claimed he had been working on a scaffold the guard-rail of which had collapsed when he leant on it, resulting in a fall – where the trial judge found that the platform of the scaffold was only half a metre above the floor, and entered judgment for the respondent – where the finding of the primary judge as to the platform height contradicted both the pleadings and the direct evidence from both parties – where the finding that the platform was set at half a metre above the ground was critical to making the respondent’s version of the accident feasible – whether such a finding was open on the evidence – whether the appellant was denied procedural fairness where no issue about the height had been raised and where the suggestion that the platform was only half a metre above the ground had not been put to the appellant – whether the court had power under r 766 of the Uniform Civil Procedure Rules to adjust the trial judge's assessment of damages
Evidence Act 1977 (Qld), s 101
Elliott v Lawrence  Qd R 440, cited
J R Hunter SC, with A D Stobie, for the appellant
McNamara & Associates for the appellant
 HOLMES JA: The appellant brought an action for damages for personal injuries sustained in a workplace accident which, he pleaded, was the result of his employer’s breach of contractual, common law and statutory duties. He was a labourer performing asbestos removal. In essence, his claim was that he had been standing on a mobile scaffold using an angle grinder to cut asbestos pipes suspended from the ceiling above him. He leant on a guard-rail for support; it gave way and he fell backwards to the concrete floor below. On his estimate, the platform of the scaffold was between 1.5 and 1.7 metres above the floor.
 That height estimate was in accordance with the respondent’s pleading and evidence, but the defence case, relying on the evidence of a witness, Mr Ouk, was that the appellant had been standing on the rail of the scaffolding when he fell. By a process of reasoning which will be outlined later in these reasons, the learned trial judge found that, in fact, the platform of the scaffold was only half a metre above the floor. He accepted Mr Ouk’s evidence that the appellant was standing on the rail when he fell, and concluded that the fall was not the result of any breach of duty on the part of the respondent. Accordingly, he gave judgment for the respondent. Although finding against the appellant on liability, his Honour proceeded to assess damages in an amount of $481,065.83, which included general damages of $20,000.
 The appellant appeals on the ground that the trial judge’s finding as to the height of the scaffold platform was at odds with the evidence and constituted a denial of procedural fairness, because no issue about it had been raised, and the suggestion that it was only 50 centimetres above the ground had not been put to the appellant. A second ground in relation to the finding on liability is that the trial judge erred in failing to take into account an earlier inconsistent statement by Mr Ouk. The appellant also seeks to appeal against his Honour’s assessment of damages, maintaining that the allowance of $20,000 for general damages was too low and rendered the assessment manifestly inadequate.
 It became necessary, while judgment was reserved, to seek further submissions from the parties on two matters. The first was the fact that, as emerged in a review of the appeal record and (in consequence) the primary court file, the judgment had not been filed. Rule 661(4)(b) of the Uniform Civil Procedure Rules 1999 provides that no appeal may be brought against an order which has not been filed without the leave of the court to which the appeal would be made. No such application was made for leave on the hearing of the appeal, but the parties concur that leave should now be granted nunc pro tunc. That order is appropriate: the oversight of the appellant’s representatives should not disadvantage him in his appeal. The second issue on which submissions were sought was as to whether the trial judge’s assessment of damages could be appealed, given that it resulted in no order. I will return to that question later in this judgment.
The appellant’s case at trial
 In December 2007, at the time of the accident in respect of which he claimed damages, the appellant was 39 years old. He was Cambodian-born, but had been in Australia since he was a teenager. The learned judge found that he could read, write and speak English, although he occasionally had difficulty expressing himself. The appellant’s first account of the accident was given in his application for worker’s compensation in January 2008. He said,
“I grab an angle grinder about to cut a pipe and I put my body to rest on the rail of a scaffold and it all came loosed [sic] and I fell with it.”
In his notice of claim for damages, the appellant said that he had been working on the scaffolding for two to two and a half hours before the incident in which he leant back on the hand-rail and it gave way. Both he and the rail fell approximately two and a half metres to the concrete floor below.
 In his evidence at trial, the appellant said that on the day in question, he had spent about one and a half hours removing ceiling tiles on a scaffold that he had assembled; it was about a metre high. His next job was to cut asbestos pipes which were hanging in the ceiling cavity. They were attached to the concrete floor slab above the one on which he was working. He used a different scaffold, which was higher than the one from which he had been removing tiles, having first looked at it to make sure that it was safe. All the rails appeared to be in the correct position, but, he said in cross-examination, he was wearing a full face mask, which meant that his vision was not entirely clear, and he had not looked at the rails individually. The platform was between 1.5 and 1.7 metres from the ground. After about half an hour, the appellant said, he paused to give some instructions to another worker, then returned to cutting pipes. Tired, he leant back on the railing and fell. When he looked up, he saw that one of the rails was hanging loose; it had not been properly assembled.
 In cross-examination, the appellant was shown a photograph of a scaffold, which he agreed was “pretty much the same” as the one he was working on, apart from the fact that its verticals protruded above the top rail less than the one in the picture. The photograph was put into evidence; the structure depicted in it had horizontal rails at half metre intervals. It was put to the appellant, and he agreed, that the platform of the scaffold he used was about 1.5 metres above the ground, and he was 1.7 metres tall. He was asked whether he agreed that the ceilings were about three metres high. He responded,
“That’s what they said. Yeah, probably three metre.”
Later, however, he qualified that statement: he said that the height of the ceiling tiles was about three metres, but the actual concrete slab which formed the roof where the pipes he was cutting were located was about 60 centimetres higher again.
 The appellant also agreed that he had originally described falling 2.5 metres from the scaffold. It was put to him that to be at that height, he must have been standing on the hand-rail of the scaffold. In response, he made the obvious point that there was not sufficient room between the scaffolding and the ceiling for him to do so. It was suggested that he had continued to use the lower scaffold while cutting the pipes, but he rejected that proposition. Challenged about whether he had made any complaint at the time about the scaffold, he said that he had told Mr Ouk and some other workers what had happened. The rail had not fallen to the ground; the statement on the notice of claim for damages was wrong.
The respondent’s case on liability
 In its amended defence, the respondent pleaded, in relation to the dimensions of the scaffold, that its inquiries had revealed that the scaffolding was erected to a height of 1.5 metres to allow a working height of 1.5 metres. It was fitted with two guard-rails, the lower 500 millimetres, and the higher one metre, above the working platform. It was also pleaded that the ceiling height was approximately three metres, and that the appellant had been sitting on the guard-rail of the scaffold in performing his work.
 Mr Ouk, who had been working on the same asbestos removal project as the appellant, gave evidence for the respondent through a Khmer interpreter. About 15 minutes before he was told of the appellant’s accident, he had seen the latter standing on the hand-rail of the scaffold cutting pipes with a grinder. The appellant was over two metres high and was propping himself up on a column next to the scaffold. (Shown the photograph of the scaffold, Mr Ouk pointed to its top rail as the one on which he had seen the appellant standing.) He warned him that it was dangerous to work in that way and that he should raise the scaffold platform. The appellant responded that he could not find the parts to extend the scaffold, so Mr Ouk went to find them. When he returned with extension components, the appellant was still on the hand-rail but said that he would come down and collect them. Mr Ouk went off to perform other duties but was called back shortly after because the appellant had fallen. The appellant told him that he had fallen from the scaffolding, but he did not complain of any defect in the structure.
 Cross-examined, Mr Ouk confirmed that the platform of the scaffold was about 1.5 metres from the floor. He estimated that the hand-rail was about 1.2 or 1.3 metres above that, so that it was 2.7 or 2.8 metres above the floor. The concrete of the floor above, he agreed, was “a bit over three metres” from the floor below. It was put to Mr Ouk that, on the dimensions he described, there could only have been about a half metre between the hand-rail and the concrete of the floor above, but he said that was not correct.
 Mr Ouk was asked about a statement he was said to have made to a private investigator in January 2011, about nine months before the trial. He agreed that he had been interviewed, but said that he had not been able to read the statement. Paragraph 10 of that statement read:
“I was working some distance from Tep at the time and I did not have any clear view of him and therefore I did not observe him on the scaffold or from the area from which he reportedly fell but my understanding was that he fell the estimated distance of two metres which to me would tend to indicate he might have been standing on the upper hand rail area at the time.”
Mr Ouk maintained, however, that he had actually seen the appellant standing on the hand-rail; the investigator had not asked him “up to the point that Mr Tep stand on hand-rail”. The statement was later tendered by agreement, without any discussion of the purpose for which it was tendered.
 Another of the appellant’s co-workers, Mr Chheng, gave evidence of the events on the day that the appellant was injured. He said that he became aware someone had fallen from scaffolding and saw the appellant sitting on the floor, rubbing his head. After the appellant was taken for medical attention, Mr Chheng used the scaffold on which he had been working. He inspected it before doing so. He did not find any defect in it and did not see any of the rails at an angle or unattached.
 Mr Chheng was cutting hangers protruding from the concrete of the floor above; they had previously held the false ceiling. The hangers were, according to Mr Chheng, about a half metre long and were about a hand’s width from his head. The platform on which he was standing was about 1.5 metres off the ground. He was 171 centimetres tall. There were still some pipes at roof level; asked how far above his head they were, he answered that they were “quite far”; he could not reach them with his hand. Mr Chheng agreed that he had not been approached to give evidence until the week before trial. It was only a couple of weeks prior that he had first been asked whether he remembered the incident.
The reasons for judgment - liability
 The learned judge observed that if the appellant’s account were correct, the scaffold must have been incorrectly assembled. His Honour found that the distance between the concrete slabs was about three metres, and the ceiling tiles were about 2.4 metres above the floor. There was a common difficulty with the evidence of Mr Ouk and that of Mr Chheng: both said that the platform on the scaffold was 1.5 metres above the ground. If that were correct, Mr Chheng, who was 1.71 metres tall, could not have been working on it when he was reaching up to cut hangers which were themselves half a metre below the ceiling slab. The appellant had submitted that Mr Chheng must have been using the scaffold that he, the appellant, had used earlier in the day removing the ceiling tiles, but that proposition had not been put to Mr Chheng. If Mr Ouk’s account were correct, it would have been impossible for the respondent to stand on a rail 2.5 metres above the floor under a heir estimates of the platform slab half a metre above his head. Either, his Honour said, the platform was only half a metre above the floor or Mr Ouk’s evidence was “a figment of his imagination”.
 The trial judge concluded that Mr Chheng and Mr Ouk were truthful and generally accurate, but incorrect in their estimates of the platform height. His Honour found that the scaffold Mr Chheng had used was the same as that used by the appellant throughout the morning and that the platform on it was fixed at half a metre above the floor. He accepted the evidence of Mr Ouk that he had seen the appellant standing on the rail of the scaffolding using the angle grinder shortly before his accident. If the scaffold were set with its platform at 50 centimetres from the floor, the railing would have been at about 1.5 metres. The appellant would have had to bend his knees slightly, but could use a grinder to cut pipes about 2.8 or 2.9 metres above the floor.
 The learned judge did not rely on the assertion about the distance of the appellant’s fall attributed to Mr Ouk in the statement taken by the private investigator because, he said, there was insufficient evidence that Mr Ouk, whose English was limited, had had the statement read to him or understood what was in it. On his Honour’s findings, no negligence or breach of contract could be attributed to the respondent, for which he gave judgment.
The contentions on the appeal as to liability
 The appellant contended that the trial judge’s finding that he fell from a platform which was only 50 centimetres high was not available on either his or the respondent’s case. The pleadings did not support it; every witness gave evidence that the platform’s height was 1.5 metres; and it was not at any time put to him that it was only 50 centimetres. If he had had notice of such a case, he would have undertaken different investigations prior to the trial: for example, as to whether a scaffold with a 50 centimetre platform existed, or, if it existed, whether it would have been fitted with horizontal rails. The trial itself would have proceeded with different cross-examination of the respondent’s witnesses.
 It was submitted that the case bore similarities to Suvaal v Cessnock City Council, in which the trial judge had rejected the plaintiff cyclist’s case that he was injured when a motor vehicle forced him off the road into pot holes at its edge. The plaintiff had sued the nominal defendant and the local council for its failure to maintain the road edges. The council, on the other hand, suggested that the handlebars of the plaintiff’s bicycle had failed independently of the road’s condition. The primary judge found, however, that the plaintiff had had a momentary loss of concentration causing him to veer into the pot holes, the existence of which was the result of the council’s negligence. The High Court held that those findings were not open. Once the primary judge rejected the appellant’s case, it was not her task to find some other explanation for the accident. The momentary lapse theory was not something which the appellant had claimed or the respondent was required to answer. The finding of a version which the plaintiff had not advanced denied the defendant the opportunity of cross-examining or submitting in relation to it.
 The appellant’s additional argument was that Mr Ouk’s statement to the investigator, having been tendered by agreement between the parties, should have been treated by the learned trial judge as a prior inconsistent statement and, consequently, as evidence of the facts contained in it, under s 101 of the Evidence Act 1977.
 The respondent submitted that the judge had done no more than decide which parts of the evidence of witnesses he would accept, and resolve inconsistencies. Mr Chheng’s evidence allowed a proper assessment of the height of the platform. He was 1.71 metres tall. The hangers on which he was working were about 2.4 metres above ground level and his head was a hand width below them. It was to be deduced from those dimensions that he must have been standing on a platform which was half a metre high. The appellant’s account, on the other hand, was that he was standing on a platform 1.5 to 1.7 metres high, so that his head height would be between 3.2 and 3.4 metres above the floor. If the ceiling height were three metres, he would have to crouch between 200 and 400 millimetres and in that position to grind pipes for 45 minutes. That was not possible. On the other hand, if he were using a scaffold with its platform set at half a metre and with a hand-rail another half metre higher, his head height when he was standing on the rail would be 2.7 metres, allowing access to the pipes.
 The trial was not conducted strictly on the pleadings and they were not amended, but that did not preclude a verdict on the facts as they emerged: Leotta v Public Transport Commission (NSW); Water Board v Moustakas. In any event, the real issue in the case was whether the appellant was standing on the rail at the time when he fell.
 As to the statement taken by the private investigator for Mr Ouk, it was tendered without objection, but without any consent to its being received on any particular basis. It represented only the investigator’s understanding of his conversation with Mr Ouk, rather than what Mr Ouk had actually said, and it was plainly contradicted by the latter’s own testimony.
Conclusions on liability
 As was observed in Suvaal, it was not the trial judge’s task to find an alternative explanation of how the accident could have occurred. Indeed, this was not simply a matter in which the trial judge arrived at a version of events where evidence was wanting; his finding as to the platform height contradicted both the pleadings and the direct evidence from both parties. The respondent’s submission that the state of the pleadings did not preclude a different finding on the evidence is a red herring, because the evidence as to the height of the scaffold did not, in fact, depart from the pleadings. And the question of the scaffolding’s dimensions was not, as the respondent would have it, a side issue. It went directly to the credibility of Mr Ouk’s account of seeing the appellant standing on the hand-rail.
 The conflict inherent in the respondent’s evidence required resolution. That might have been achieved by concluding that both Mr Ouk and Mr Chheng were mistaken exclusively as to the height of the platform. But such a resolution could not occur in circumstances where the possibility that the platform was much lower was not raised with either of them, and, had that possibility been raised with the appellant, there might have been a conclusive answer open to him.
 The finding that the platform was set at half a metre above the ground was critical to making the respondent’s version of the accident feasible. It was not open on the evidence, and its making without notice to the appellant was a denial of natural justice. The judgment must, accordingly, be set aside. As the appellant acknowledged in submissions, given that the question of liability turns on the credibility of the three witnesses - the appellant, Mr Ouk and Mr Chheng - there must be a re-trial.
 It is, consequently, unnecessary to deal with the ground of appeal which related to the status of Mr Ouk’s apparent inconsistent statement. It may be said, though, that it illustrates the desirability of identifying precisely what acquiescence to the tender of evidence encompasses, and, more particularly, in what capacity the evidence is to be received.
The appeal as to the assessment of damages
 As already indicated, the parties were asked to make further submissions on the jurisdiction for an appeal from the assessment of damages, given that it was not the subject of any order. Section 62(1) of the Supreme Court of Queensland Act 1991 permits an appeal from a judgment or order. It provides:
“62Appeal in proceedings in the court
(1)Subject to this and any other Act, an appeal lies to the Court of Appeal from—
(a)any judgment or order of the court in the Trial Division; and
(b)without limiting paragraph (a)—
(i)a judgment or order of the court in the Trial Division made under this Act; and
(ii)any opinion, decision, direction or determination of the court in the Trial Division on a stated case; and
(iii)any determination of the court in the Trial Division or the District Court in a proceeding remitted under section 61.”
 In particular, the parties were asked to address the question of this court’s power to make a binding determination with respect to damages in the event that the issue of liability was remitted for re-trial. In response, the appellant did not seek to contend that s 62 authorised an appeal from the assessment of damages. However, he submitted that r 766 of the Uniform Civil Procedure Rules 1999 allowed the court to make a determination as to quantum.
 Rule 766 provides:
(1)The Court of Appeal—
(a)has all the powers and duties of the court that made the decision appealed from; and
(b)may draw inferences of fact, not inconsistent with the findings of the jury (if any), and may make any order the nature of the case requires; and
(6)The Court of Appeal may exercise its powers under this rule even though—
(a)a notice of appeal has not been given for a particular part of the decision or by a particular party to the proceeding; or
(b)a ground for allowing the appeal or for affirming or varying the decision is not stated in the notice of appeal.”
 The appellant submitted that once there was a validly instituted appeal pursuant to s 62, the court could, under r 766, make such orders as were appropriate to deal with the issues on the appeal. It was “empowered in an ancillary sense” to deal with the issue of quantum. Reference was made to McPherson JA’s statement in MAM Mortgages Ltd (in liq) & Anor v Cameron Bros (a firm) & Ors
“That rule has been held to authorise the giving or making on appeal of the appropriate judgment, order or declaration that ought to have been made below...”
 The primary judge, because of the convention that an assessment of damages is made to assist the court on appeal should it reach a different view on liability, made a series of findings on quantum, arriving at an amount for each head of damage. It may be accepted that although the assessment of damages is not itself capable of appeal, the court’s powers under r 766 would enable it, were it to give judgment for the appellant, to make an award of damages on the basis of the primary judge’s findings on the facts. That power would extend to adjusting the monetary amounts arrived at by the primary judge where the court considered that the findings supported a higher award. But where the court has reached no view on whether judgment should, in fact, have been given for the appellant, instead remitting the issue of liability for re-trial, it is in no sense ancillary to its exercise of power that it determine quantum. That issue must form part of the re-trial.
 I would:
1.Grant leave nunc pro tunc for the bringing of the appeal.
2.Allow the appeal.
3.Set aside the judgment given below.
4.Order that the proceeding be remitted to the trial division for determination of the issues of liability and quantum.
5.Order that the parties provide submissions as to the costs of the appeal and the proceeding below within two weeks of delivery of this judgment.
 GOTTERSON JA: I agree with the orders proposed by Holmes JA and with the reasons given by her Honour.
 DOUGLAS J: I agree.
 The claim of breach of statutory duty was not pursued, that cause of action having been extinguished by s 37A of the Workplace Health and Safety Act 1995, introduced subsequent to the filing of the statement of claim.
 (2003) 200 ALR 1.
 (1976) 9 ALR 437 at 446.
 (1988) 180 CLR 491 at 497.
  QCA 330.
 At .
 Elliott v Lawrence  Qd R 440 at 444-5.
- Published Case Name:
Tep v ATS Australasian Technical Services Pty Ltd
- Shortened Case Name:
Tep v ATS Australasian Technical Services Pty Ltd
- Reported Citation:
 QCA 180
Holmes JA, Gotterson JA, Douglas J
12 Jul 2013
- White Star Case:
- Selected for Reporting:
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|Appeal Determined (QCA)|| QCA 180||12 Jul 2013||-|