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Bilson v Vatsonic Communications Pty Ltd[2024] QCA 171

Bilson v Vatsonic Communications Pty Ltd[2024] QCA 171

SUPREME COURT OF QUEENSLAND

CITATION:

Bilson v Vatsonic Communications Pty Ltd; Vatsonic Communications Pty Ltd v Bilson [2024] QCA 171

PARTIES:

In Appeal No 5634 of 2024:

LEIGH BILSON

(appellant)

v

VATSONIC COMMUNICATIONS PTY LTD

(ACN 093 786 004)

(first respondent)

TOWNSVILLE CITY COUNCIL

(second respondent)

In Appeal No 5563 of 2024:

VATSONIC COMMUNICATIONS PTY LTD

(ACN 093 786 004)

(first appellant)

WORKCOVER QUEENSLAND

(second appellant)

v

LEIGH BILSON

(first respondent)

TOWNSVILLE CITY COUNCIL

(second respondent)

FILE NOS:

Appeal No 5634 of 2024

Appeal No 5563 of 2024

DC No 130 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Townsville – [2024] QDC 42 (Coker DCJ)

DELIVERED ON:

13 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2024

JUDGES:

Bowskill CJ and Boddice JA and Henry J

ORDERS:

  1. The appeal in proceeding CA 5634 of 2024 (Mr Bilson’s appeal) is allowed.
  2. The appeal in proceeding CA 5563 of 2024 (Vatsonic Communications Pty Ltd and WorkCover’s appeal) is allowed, in so far as grounds 8 and 9 are concerned, but is otherwise dismissed.
  3. Set aside the orders made at first instance and substitute the following orders.
  4. There be judgment for the appellant (Mr Bilson) against the first respondent (Vatsonic Communications Pty Ltd) in the sum of $359,689.84.
  5. There be judgment for the appellant (Mr Bilson) against the second respondent (Townsville City Council) in the sum of $590,801.57.
  6. The first respondent (Vatsonic Communications Pty Ltd) is entitled to recover 30% of the damages assessed against Vatsonic from the second respondent (Townsville City Council) pursuant to s 6(c) of the Law Reform Act 1995.
  7. The second respondent (Townsville City Council) is entitled to recover 70% of the damages assessed against the Council from the first respondent (Vatsonic Communications Pty Ltd) pursuant to s 6(c) of the Law Reform Act 1995.
  8. The parties file and serve on one another brief submissions (of no more than 3 pages), together with any necessary affidavit(s), in relation to the costs orders they, respectively, propose, within 7 days.
  9. The parties file any submissions in reply to the primary costs submissions filed (of no more than 2 pages), together with any necessary reply affidavit(s), within 14 days.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – where Mr Bilson was employed by Vatsonic Communications Pty Ltd to operate a hydro vac truck to remove water and debris from drainage pollution pits – where Vatsonic had a contract with the Townsville City Council under which it agreed to provide “wet hire” of a vac truck, which included the truck, vacuum hose and operator – where Mr Bilson was required to work in cooperation with workers employed by the Council, who operated a Council truck with a crane and sling to manoeuvre the hose into and out of pits – where Mr Bilson suffered an injury to his eye whilst working at a particular pit in accordance with these arrangements – where the learned trial judge found that both Vatsonic and the Council had breached their duty of care owed to Mr Bilson and that each breach caused Mr Bilson’s injury – where the trial judge apportioned liability 70% to Vatsonic, given its responsibility as the employer, and 30% to the Council, given the actions of its workers – where the trial judge found that the Council was entitled, under a contractual agreement, to be indemnified by Vatsonic for any damages awarded against it and that s 236B of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) did not operate to void that agreement – where the trial judge assessed damages against Vatsonic (but not the Council) and entered judgment for Mr Bilson against Vatsonic only – whether the trial judge erred in failing to assess damages, and given judgment for Mr Bilson, against the Council, having found the Council liable – whether the trial judge erred in finding the Council liable for the injury to Mr Bilson – whether the trial judge erred in finding Vatsonic liable for the injury to Mr Bilson – whether the assessment of general damages payable by the Council, the claim against which was governed by the common law, should be assessed by reference to the statutory regime applicable under the Act

GUARANTEE AND INDEMNITY – INDEMNITIES – CONSTRUCTION OF CONTRACT – where Vatsonic agreed to indemnify the Council against all claims for injury, loss or damage suffered by any person arising out of Vatsonic’s performance of the contract – where the trial judge found that Mr Bilson’s injuries arose directly out of the performance of the contract, and that, consequently, under the terms of the contract, Vatsonic was required to indemnify the Council for the loss suffered by Mr Bilson – whether the trial judge erred in construing the indemnity clause as operating in this case

WORKERS’ COMPENSATION – LIABILITY TO PAY COMPENSATION – LIABILITY OF BOTH CONTRACTOR AND PRINCIPAL – where s 236B of the Act governs liability of contractors and applies to an agreement between an employer and another person under which the employer indemnifies the other person for any legal liability of the person to pay damages for injury sustained by a worker – where s 236B(3) provides that the agreement is void to the extent it provides for the employer to indemnify the other person for any contribution claim made by the insurer against the other person – where the trial judge found that s 236B was not applicable because this was not a matter where the Council sought to rely upon the indemnity to defeat a claim by WorkCover in relation to a contribution claim brought against it – whether the trial judge erred in construing s 236B as not voiding the indemnity

Acts Interpretation Act 1954 (Qld), s 14A(1)

Civil Liability Act 2003 (Qld), s 5(1)(b)

Law Reform Act 1995 (Qld), s 6, s 6(c), s 7

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 8, s 9, s 10, s 48, s 236B, s 278A, s 300, s 305B(2)

Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), s 8, s 9

Brophy v Dawson [2004] QSC 372, considered

Byrne v People Resourcing (Qld) Pty Ltd [2015] 2 Qd R 397; [2014] QSC 269, considered

CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121, cited

Davis v Commissioner for Main Roads (1968) 117 CLR 529; [1968] HCA 10, cited

Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500; [1987] HCA 49, cited

Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1; [2008] NSWCA 114, considered

Findlay v Victoria [2009] VSCA 294, cited

Laing v Fagan [1991] QSCFC 38, considered

Lambert v Matilda Pet Foods [1999] QSC 136, considered

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited

Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; [1968] HCA 62, cited

R v Fowler (1985) 39 SASR 440, cited

Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239, considered

Samways v WorkCover Queensland [2010] QSC 127, cited

Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd (2000) 23 WAR 291; [2000] WASCA 408, cited

State Government Insurance Office (Qld) v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228; [1969] HCA 59, cited

Wang v Hur [2024] QCA 126, cited

Westina Corporation Pty Ltd v BGC Contracting Pty Ltd (2009) 41 WAR 263; [2009] WASCA 213, cited

COUNSEL:

In Appeal No 5634 of 2024:

J G Greggery KC, with R J Armstrong, for the appellant

G W Diehm KC, with M A Rothery, for the first respondent

D P de Jersey KC, with B A Reading, for the second respondent

In Appeal No 5563 of 2024:

G W Diehm KC, with M A Rothery, for the first and second appellants

J G Greggery KC, with R J Armstrong, for the first respondent

D P de Jersey KC, with B A Reading, for the second respondent

SOLICITORS:

In Appeal No 5634 of 2024:

Purcell Taylor Lawyers for the appellant

Jensen McConaghy for the first respondent

King & Company Solicitors for the second respondent

In Appeal No 5563 of 2024:

Jensen McConaghy for the first and second appellants

Purcell Taylor Lawyers for the first respondent

King & Company Solicitors for the second respondent

  1. [1]
    BOWSKILL CJ:  Mr Bilson was employed by Vatsonic Communications Pty Ltd to operate a hydro vac truck, which is used to remove water and debris from drainage pollution traps (or pits).  Vatsonic had a contract with the Townsville City Council under which it agreed to provide “wet hire” of a hydro vac truck (which means to provide the truck, vacuum hose and an operator) as required.  The operator of the hydro vac truck had to work in cooperation with workers employed by the Council, who used a Council truck with a crane and sling to manoeuvre the hose into and out of the pit.  Mr Bilson suffered an injury to his eye whilst working at a particular pit in accordance with these arrangements, in the circumstances described below.
  2. [2]
    Mr Bilson brought a claim for damages against his employer, Vatsonic, for damages for personal injuries caused by its  negligence and/or breach of contract – which was governed by the Workers’ Compensation and Rehabilitation Act 2003 (Qld); and against the Council, for damages for personal injuries caused by its negligence, or the negligence of its employees for which the Council was vicariously liable – which was governed by the common law.[1]  Both defendant parties disputed liability and the quantum of Mr Bilson’s claim.  Vatsonic claimed contribution from the Council under s 6 of the Law Reform Act 1995 (Qld).  The Council claimed an indemnity from Vatsonic in accordance with the terms of the contract between them or, alternatively, contribution under the same provision.
  3. [3]
    The learned trial judge found that Vatsonic had breached its duty of care owed to Mr Bilson, in particular, by failing to properly assess the risks of injury arising from the task involved and by failing to prepare a safe work method statement.  His Honour also found that the Council had breached its duty of care owed to Mr Bilson, in particular, as a result of the failure of its workers to follow the informal system of work which had been established by Mr Bilson.  Mr Bilson’s injury was found to have been caused by each defendant’s breach of duty.[2]  The trial judge apportioned liability 70% to Vatsonic, given its responsibility as the employer, and 30% to the Council, given the actions of the Council’s workers.[3]  The trial judge further found that the Council was entitled, under the relevant contractual provision, to be indemnified by Vatsonic for any damages awarded against it[4] and that s 236B of the Workers’ Compensation and Rehabilitation Act did not operate to void the agreement in this respect.[5]  It was consequent upon those findings that the trial judge assessed damages against Vatsonic (but not the Council) and entered judgment for Mr Bilson against Vatsonic only.[6]
  4. [4]
    Mr Bilson appeals[7] against the decision, on the grounds that:
    1. the trial judge erred in not ordering judgment for Mr Bilson against the Council (given his Honour’s findings as to the Council’s vicarious liability to Mr Bilson for the breach of duty by the Council’s workers, and the apportionment of 30% liability to the Council);
    2. the trial judge erred in failing to assess damages against the Council; and
    3. the trial judge erred in not providing Mr Bilson the opportunity to be heard as to costs.
  5. [5]
    It is uncontroversial as between each of Mr Bilson, Vatsonic and the Council that – subject to Vatsonic’s appeal, and the Council’s notice of contention, the outcome of which may affect the conclusion as to liability – the points made by Mr Bilson under grounds (a) and (b) of his appeal are correct.  Notwithstanding the trial judge’s conclusion in relation to the effect of the contractual indemnity as between Vatsonic and the Council, his Honour ought to have assessed the damages payable by the Council (noting that this was governed by the common law, not statute) and ought to have entered judgment for Mr Bilson against the Council.  As a matter of law, liability having been established against both Vatsonic and the Council, Mr Bilson was entitled to judgment for the full amount of his loss as assessed against each of them: apportionment, and the indemnity, was a matter between the defendants which did not concern Mr Bilson.[8]
  6. [6]
    Likewise, as to costs, all parties sought to be heard following the delivery of judgment on the appeals, and Mr Bilson accepted this opportunity would address the complaint the subject of his ground (c).
  7. [7]
    Mr Bilson’s appeal, on grounds (a) and (b), should be allowed.  A further legal issue arises, in relation to ground (b), as to the basis upon which general damages should be assessed as against the Council (since that claim is governed by the common law, not statute).  This issue is addressed commencing at paragraph [131] below.
  8. [8]
    Vatsonic and WorkCover Queensland appeal[9] against the decision, on the following grounds:
  1. the trial judge erred in finding that Vatsonic had breached its duty of care to Mr Bilson;
  1. alternatively, the trial judge erred in finding causation was established;
  1. alternatively, the trial judge erred in apportioning liability 70% against Vatsonic, when it ought to have been 100% against the Council on the basis the real cause of the accident was a casual act of negligence by the Council, through its employees, in not complying with an established system of work;
  1. further, the trial judge erred in the construction of clause 1.39 of the agreement between Vatsonic and the Council (the indemnity clause);
  1. (5),
    (6) and (7) the trial judge erred in making the findings that he did about breach of other clauses of the agreement, or the consequences of other clauses of the agreement;
  1. the trial judge erred in his conclusions regarding s 236B of the Workers’ Compensation and Rehabilitation Act 2003; and
  1. [mirroring Mr Bilson’s ground (a)] the trial judge erred by not giving judgment for Mr Bilson against the Council.
  1. [9]
    By notice of contention filed in Vatsonic’s appeal, Mr Bilson supports the trial judge’s findings as to liability on the basis of additional factual matters.
  2. [10]
    The Council appeals a number of the factual findings underpinning the conclusion as to its liability, culminating in an argument that the trial judge ought to have found the Council did not cause or contribute to Mr Bilson’s injury and therefore ought to have apportioned liability 100% to Vatsonic and 0% to the Council.  The Council does not contend any different order should be made (because the trial judge did not give judgment against it), and so made its challenge via notice of contention.[10]
  3. [11]
    Since the Council’s contentions attack a number of the factual findings underpinning the trial judge’s conclusion as to liability, it seems logical to deal with those issues first, before turning to the issues raised by Vatsonic’s appeal.
  4. [12]
    In order to understand the issues, it is helpful first to set out how the injury occurred, having regard to evidence accepted and findings made by the trial judge.

How did the injury to Mr Bilson occur?

  1. [13]
    Mr Bilson started working for Vatsonic on 5 June 2016.  His main duty was “vac truck operator”.  On the day he started, he was taken out with another employee, who showed him how the “vac truck” worked.  That was the truck that he continued to operate up until the incident in which he was injured, on 28 August 2017.
  2. [14]
    The vac truck has a large tank on the back of it, which has two connection points or valves:  an inlet and an outlet.  A large hose is used to “vacuum” or suck water and silt from pits called “gross pollutant traps” (or GPTs) into the tank.  Gross pollutant traps are part of the stormwater drain system (Mr Bilson called them “stormwater pits”).  Cleaning out, or emptying, the gross pollutant traps involves vacuuming the water out of the trap, to enable the silt at the bottom of the trap to be extracted.
  3. [15]
    At the time he was injured, Mr Bilson was working with three employees of the Council cleaning out a stormwater pit at Burdell, a suburb of Townsville.  About four or five months prior to the incident, he had worked with them for about a month “cleaning out stormwater pits, drains all over Townsville”.  Mr Bilson and the Council workers had been working on the pit at Burdell for five days, in the week prior to the incident.  Mr Bilson had his vac truck and the Council workers had another truck, with a crane attached to it.  The pit was quite deep, about 4.2 metres, and manoeuvring the hose into the pit took some effort.  After arriving at the site, Mr Bilson would run the hose out, connect it up to the vac truck (to the inlet connection) and then put the other end near the pit, for the Council workers to hook up to the crane.  The Council workers would place a kind of “sling” around the hose, then lift it up and lower it down into the pit.  Mr Bilson would engage the “vac” on the truck, and the Council workers would lower the hose further into the pit, while Mr Bilson was there to guide the hose into the pit.  Once the vac truck was full of water, Mr Bilson would return to the truck, disengage what he called the “PTO” (which is a reference to the power source for various functions, including the vacuum function and the raising of the tank) and then come back to the pit.  The Council workers would use the crane to lift the hose back up and move it to the side of the pit, so that the sling could be disconnected from the crane hook.  Mr Bilson and one of the Council workers would then drag the hose over to a garden area nearby.
  4. [16]
    Most of the time, once the tank was full, the operator (such as Mr Bilson) would drive the truck back to the depot and empty the tank there, by opening the back of the tank up and tipping the contents out.  However, sometimes the contents of the tank would be discharged at the site of the pit.  That is what occurred at the time of the incident.  The water was being discharged into an area of garden adjacent to the pit.  As Mr Bilson explained, the hose would be dragged over to that area (by him and one of the Council workers).  He would then return to the truck, take the hose off the inlet and put it on the outlet and open the valve.  He engaged the PTO again to lift the tank up, which would assist the water to drain out.  The outlet is also referred to as a gravity feed outlet drain.  Once the tank was fully drained, Mr Bilson would “hook it all back up again” (meaning to take the hose from the outlet back to the inlet), and the process would be repeated.  Mr Bilson said that the first time he had done this with the Council workers there had been a “discussion” to the effect that “no one was to be near the hose when it was being changed over”.
  5. [17]
    There were photographs of the truck(s) and the hose in evidence.  The hose is mostly yellow and black (explaining the description of it as the “bumble bee” hose by Mr Bilson).  Mr Bilson explained that when the water is being sucked into the truck, the hose “flaps around a lot, which tends to split the yellow and black hose”.  So he added a grey section made of heavier duty solid rubber, of about a foot long, to the top of the hose, where it is connected to the inlet valve.  That was only done for the Burdell job, after a couple of days of broken hoses.  The grey bit stayed on the inlet valve.  When changing the hose over, Mr Bilson said he took the yellow bumble bee hose from the inlet side (where it connected to the grey section) and then connected it to the outlet.  The grey part itself always stayed connected to the inlet valve.
  6. [18]
    Mr Bilson and the Council workers had done this same process about eight to ten times on each of the five days of the previous week (so at least 40 to 50 times).  As Mr Bilson explained, because the pits are part of the stormwater drains, the water just keeps flowing in, so it takes some time and effort to vacuum it out, to get to the silt at the bottom.
  7. [19]
    The incident in which Mr Bilson was injured happened at the start of the working day on the second Monday at this particular pit at Burdell, on 28 August 2017.  All the steps outlined above had been taken, and it was when Mr Bilson went to “unhook” the hose from the outlet valve that the incident happened.  Having lowered the tank, once the water had finished draining out, Mr Bilson walked around to the back of the truck and went to “uncouple” the hose from the outlet valve.  Mr Bilson’s evidence was that:

“It was a little bit tight.  I gave it a tiny – a little wiggle, which – the couplings are both aluminium and – alloy – and at times they bind.  I give it a little wiggle and it flung out of my hand, around to the right.  I sort of pulled back and it struck me on the bridge of the nose and got it this side of my eye.

When you described that it fling out of your hand to your right, you moved your right hand in a semi-circular motion.  Is that --- ? --- Yeah, it sort of went around like that … did a – like, a 180 in the air and come down on my – on my no – the bridge of my nose and my eye.”

  1. [20]
    As Mr Bilson was sitting there afterwards, having called his boss and his wife to tell them what had happened, he looked up and saw the hose was hanging about four metres in the air, with the end of the hose dangling over the pit.  He said he was angry, because the hose was supposed to be left flat on the ground and straight when he was engaged or about to be engaged in the process of disconnecting the hose from the outlet and putting it back onto the inlet valve.
  2. [21]
    Mr Bilson agreed, when it was put to him in cross-examination, that he knew the hose should be flat on the ground and straight during this process from his training by Vatsonic (the one day of training he received on his first day of working for Vatsonic) and, in addition, there had also been a discussion between Mr Bilson and the Council workers about how this job would be done.  Relevantly, Mr Bilson said that discussion took place on the previous Monday, when they started the job.  The Council workers told him where to park, and that they were going to use the crane to lower the hose into the pit and then after that, they would drag it out to the open garden area to decant the water.  Mr Bilson then said “when it’s dragged out there is when I’ll unhook and then will hook back up before it’s dragged back”, and also that, at the time he was changing over the hose from one valve to another the Council workers were “[n]ot to touch the hose”.
  3. [22]
    In further cross-examination, Mr Bilson denied that he was told by someone at Vatsonic that no one was to touch the hose whilst he was connecting and reconnecting it.  He said “[t]hat was my rule all the time”, “[b]ecause I’m in charge of that truck and that hose and I don’t want people playing with it while I’m doing my job”.  Mr Bilson denied that was because something unexpected had happened with the hose previously.  He just said “[t]hat was always my thing to everyone, don’t touch my hoses, don’t touch the gurney, it’s my job.  You do your job.  I’ll do my job”.
  4. [23]
    In the previous week, there was no occasion when Mr Bilson saw any of the Council workers move the hose, whilst he was about to change, or in fact was changing, the hose over.  And he had never seen the hose behave the way it did when he suffered his injury.
  5. [24]
    As the trial judge said in the Reasons:[11]
  1. “[18]
    [Mr Bilson] was adamant that there was, at the time of the incident, a system of work in place, that it reflected some of what he had been trained to do by [Vatsonic], though refined by him, and, most importantly, reflected what had been discussed and, at least by acquiescence, agreed between he and the employees of [the Council].
  2. [19]
    For completeness, it should be noted that this agreed system of work also involved tasks specifically attributed to [the Council’s] employees.  It was they who attached a sling to the hose using a knot that, depending on the way it was pulled, choked the hose, so that it could not slip or pull through the sling knot, with the other end of the sling hooked to the crane.  In [Mr Bilson’s] evidence, he confirmed that he did not operate the crane, but, that that was done by ‘… Colin and Ed …’, who ‘… took it in turns operating the crane at different times’.
  3. [20]
    It was clear, however, from [Mr Bilson’s] evidence that these tasks, performed by [the Council’s] employees, were not to occur whilst any transition of the hose was taking place, and that that practice had been adhered to in the previous week, as well as on earlier occasions.
  4. [21]
    On the 28th August [2017], the Plaintiff says that this agreed procedure was not followed.  After the pumping from the GPT had occurred, and the decanting of the vacuum truck had been completed, the Plaintiff lowered the tank, and then proceeded to change the hose from the outlet to the inlet valve.  He gave it, as he described, ‘a little wiggle’ and it then flung out of his hand, moving to his right, but, then came back around, ‘like 180 in the air’ such that the coupling at the end of the hose hit him on the bridge of his nose as well as striking him in the eye.”
  1. [25]
    The trial judge accepted Mr Bilson as an honest and reliable witness, describing him as “clear, believable and precise in so far as the previous practices and as to the change that occurred prior to him sustaining this injury” (at [25]-[27]).
  2. [26]
    There was evidence from two of the three Council workers at the trial.  In the case of one, Mr Phillips, only written statements were tendered, as he was seriously ill and unable to attend court for the trial.  Another, Mr Savage, gave oral evidence at the trial.  The third man, Mr Jensen, had passed away prior to the trial.  The trial judge regarded Mr Phillips’ statements as giving rise to uncertainty as to their reliability and accuracy, given inconsistencies between them, and gave the second statement no weight.  However, Mr Phillips’ first statement confirmed that, at the time of the incident, the hose was back at the pit and not, as had been discussed between Mr Bilson and the Council workers, still at the discharge point (at [34] and [38]).  The trial judge found Mr Savage to be a “most unreliable witness”, whose evidence was not accepted, other than where it was consistent with the evidence of Mr Bilson (at [43]).
  3. [27]
    As to what caused the hose to behave in the way Mr Bilson described, the trial judge recorded that there was agreement that “somehow there was stored energy in the inlet/outlet hose, but, the source of that energy [was] in dispute” (at [45]).  That was the subject of evidence from two experts:  Mr Contoyannis, a forensic engineer (called by Mr Bilson), and Mr Kahler, an engineering consultant (called by the Council).
  4. [28]
    By reference to the submissions on behalf of Vatsonic, the trial judge adopted the following summary of Mr Contoyannis’ evidence (at [47]):
  1. “59.
    Mr Contoyannis’ opinion as to the cause of the source of the stored energy might be summarised as follows:
  1. a.
    The hose had been repositioned from the garden back to the pit, slung from the crane and then lifted up;
  2. b.
    Torsional energy accrued in the hose in moving it from the garden bed back to the pit;
  3. c.
    Stored energy was trapped between the outlet connection and the point where the hose was slung on the crane;
  4. d.
    Between the point in the time where the hose was being dragged and being slung on the crane, the torsional energy was stored because one end was fixed to the truck and the other fixed by being held (ie to drag it/sling it);
  5. e.
    The weight of the hose hanging down either side of where the sling was attached, once the hose was lifted by the crane, contributed to the trapping of the energy in the hose;
  6. f.
    Bending in the hose, between the point at which it is affixed to the crane and the truck end, caused by the lifting of the crane, will significantly increase the stored energy in the hose;
  7. g.
    When the hose was disconnected from the outlet valve but fixed at the other end (being attached to the sling and hung on the crane), the energy was released at the outlet end, causing the hose to spin and release from [Mr Bilson’s] grip; and
  8. h.
    The stored energy arose both because of the ‘memory’ of the hose to curl from the manner in which it was stored on the truck when not in use, and due to torsion of the hose from it twisting when dragged from the garden bed and being lifted by the sling and crane.
  1. 60.
    From the experiments conducted by Mr Contoyannis and documented in his Supplementary Report, he was of the opinion that ‘movements of the hose have a consequential effect at the point of connection to the truck, causing the hose to turn, displace laterally, or a combination of the two.’
  2. 61.
    However, he also noted that ‘connecting the hose on the outlet after positioning results in almost no strain energy at the outlet.’  This is consistent with [Mr Bilson’s] evidence noted above that he had never experienced any unexpected or violent movement in the hose; that he always knew what to expect from the hose when disconnecting the hose, ‘because usually, the hose is laid out flat.’”[12]
  1. [29]
    The trial judge went on to say, at [48]:

“Importantly, the evidence/opinion of Mr Contoyannis accords with the evidence of [Mr Bilson], which I accept.  Mr Kahler accepted that if torsional strain energy was introduced between the two fixed points of the truck and the sling, it would be released when the hose was uncoupled.  Notwithstanding this acknowledgment, however, Mr Kahler in his reports, but, more so in his oral evidence, was clearly of the opinion, especially after conducting further enquiry, that whilst torsional energy was possible, it was not the situation in this incident.  In Mr Kahler’s evidence, he said:

‘MR GREGGERY:[13] Mr Kahler, Mr Bilson has given evidence about the manner in which the hose moved as he uncoupled it, leading to it striking him on the nose and in – near his left eye.  I’ll just describe that to you. … [referring to Mr Bilson’s evidence] ‘I went to uncouple it.  It was a little bit tight.  I gave it a tiny little wiggle, which the couplings are both aluminium and alloy, and at times, they bind.  I gave it a little wiggle and it flung out of my hand around to the right.  I sort of pulled back and it struck me on the bridge of the nose and got hit this side of my eye ….  “it sort of went around like that, did a 180 in the air and came down on my – on my – the bridge of my nose and eye”.  So – and the hand motion which he described was a movement that went around like that, consistent with his description of a 180 degree.  Now, does that movement upon an uncoupling, is it consistent with the release of stored energy within the pipe?

MR KAHLER: --- Yes, most definitely.

MR GREGGERY:  And is it consistent with at least the release of torsional energy – that’s twisting energy contained ---? --- The way you

[MR GREGGERY]: --- in the pipe?

[MR KAHLER]: --- The way you describe it, it’s consistent with torsional energy.

[MR GREGGERY]: Yes? --- But I have studied this incident in fine detail, and I do not consider there was any significant torsional energy present, so all I can go to – when I consider that hypothesis of torsional energy, Mr Bilson’s recollection is the supporting observation for it.  But I think there is also a lot of information on the rejecting side.  I also think these situations unfold very quickly.  And as people trying to recollect what happens, my career has been very much about dealing with the evidence that I see and try to reconcile what people are telling me.  So yes, the description you give is consistent with torsional energy, but I just don’t think the circumstances of the work on that day were consistent with torsional energy.  By torsional energy, I mean an induced twist.

MR GREGGERY:  Yes? ---

MR KAHLER: --- into the hose.”

  1. [30]
    After referring to that part of the evidence of Mr Kahler, the trial judge said (at [49]):

“Mr Kahler’s assessment, however, was, I thought, dismissive of the evidence of [Mr Bilson], and failed to appreciate and consider that evidence in his assessment.”

  1. [31]
    The trial judge accepted submissions on behalf of Mr Bilson that the evidence of Mr Contoyannis should be preferred to that of Mr Kahler because, among other things:

“Mr Kahler’s alternative hypothesis is logically unattractive as:

  1. Mr Bilson was an experienced hose operator and had repetitively connected and disconnected the hose while working for Vatsonic including between 40 and 50 times in the preceding week;
  1. Mr Bilson described the use of force to wriggle the hose free from the outlet valve in very modest terms and he is credible and reliable;
  1. The supposition that Mr Bilson connected the hose using force to do so against its natural lay and then applied force in an upward pulling motion is inconsistent with his experience, practice and the positioning of his hands on the end of the hose and the counter effect of gravity;
  1. The experiments he conducted commenced with removing all stored energy in the hose and did not involve fixing one end of the hose to the truck.  The shortcomings in those experiments compared to those conducted by Mr Contoyannis is set out in his file note;
  1. The facts assumed by Mr Kahler about the position of the hose on the ground and in the pit and not raised by the sling such that no strain energy was introduced to the hose is inconsistent with the evidence of [Mr Bilson] and the first recorded account of Mr Savage in his statement to Work Health and Safety.”
  1. [32]
    The trial judge concluded his analysis of the expert evidence as follows:
  1. “[50]
    Mr Kahler also acknowledged in his first report, Exhibit 20(a), that the incident was extraordinary and could not have been anticipated. Specifically, he said, ‘the author has completed a literature search and cannot find an incident that replicates the circumstances of this incident’. Understandably, therefore, without prior experience himself, or literature to assist, Mr Kahler initially considered that the stored torsional energy in the hose, accrued by dragging the hose from the garden to the pit, might have been a contributor to the incident and noted as much in his first report. He said:

There is also the possibility that, in pulling the hose back from the garden to the GPT, the hose rolled and stored elastic torsional stored energy.

  1. [51]
    Mr Kahler then explained that he had done further tests and, as a result of those, prepared his file note and supplementary report. In those reports and further in his oral evidence, he then discounted that hypothesis, and, if anything, dismissed the possibility for there to be stored torsional energy, which contributed to the unexpected movement of the hose. This is notwithstanding the unchallenged evidence of [Mr Bilson] and untested assumptions used by him to base his report.
  2. [52]
    He suggested that if there were stored energy, it would arise as a result of the hose being connected ‘against’ the stored memory curve in the hose, and the force applied by [Mr Bilson] to disconnect the coupling. Again, contrary to [Mr Bilson’s] unchallenged evidence in respect of the uncoupling.
  3. [53]
    Mr Kahler seemed determined to rely upon his own testing and the results of that, again, without acknowledging numerous differences between his testing regime and what [Mr Bilson] said occurred on the day.
  4. [54]
    Both Mr Contoyannis and Mr Kahler were experienced and impressive witnesses. However, I would without hesitation find that I was more satisfied and assisted by the evidence of Mr Contoyannis. His evidence was far more convincing in respect of the assessment as to stored torsional energy, especially when considered in conjunction with the unchallenged evidence of [Mr Bilson].
  5. [55]
    The difference on the occasion leading to [Mr Bilson’s] injury was clear. It involved the hose being moved back to the GPT whilst still connected to the truck, as well as the hose being slung and lifted by the crane operator. Mr Kahler’s opinions were, to a significant degree, borne out of his assumptions which in part were contrary to the accepted evidence of the [Mr Bilson]. As submitted in the outline of [Vatsonic], the opinion of Mr Contoyannis presents as a more plausible source of the stored energy … [among other things, because it is based upon assumptions consistent with the evidence of Mr Bilson, accepted by the trial judge].
  6. [56]
    Ultimately, the accepted evidence of [Mr Bilson], in combination with the expert evidence of Mr Contoyannis, leads me to the finding that the release of stored torsional energy led to the behaviour of the hose, as described by [Mr Bilson], and the injury sustained.”

Did the trial judge err in finding the Council liable for the injury to Mr Bilson?

  1. [33]
    By notice of contention filed in Mr Bilson’s appeal, the Council contends that the judgment of the primary judge (that is, no judgment against the Council) ought to be affirmed on grounds which seek to challenge the conclusion that the Council was liable for Mr Bilson’s injury.
  2. [34]
    The grounds relied upon are as follows [references to evidence, by way of “particulars” have not been reproduced]:
  1. “2.
    The learned primary judge ought to have found that the employees of the [Council] did not elevate the hose using the crane on site but, rather, only moved the hose from the garden bed back to the location of the gross pollutant trap (GPT).
  1. The learned primary judge ought to have found that, consistent with the instructions of [Mr Bilson], the employees of the [Council] did not touch the hose whilst [Mr Bilson] was changing the hose from the outlet valve to the inlet valve of [Mr Bilson’s] truck.
  1. In the premises of 3, the learned primary judge erred in finding (at [73] and [74]) that the [Council’s] employees ‘acted contrary to the direction of [Mr Bilson]’ and that they therefore ‘failed in their duty to take reasonable care in carrying out their functions so as to avoid causing foreseeable injury to other persons’.
  1. The learned primary judge erred in finding (at [22]) that there was ‘little force’ required to remove the hose from the outlet valve and ought to have found, consistent with the evidence given by [Mr Bilson], that the force required to remove the hose was ‘different’ from occasion to occasion, and that on some occasions the hose was ‘sticky’, and on other occasions the hose released ‘freely’.
  1. The learned primary judge ought to have accepted the evidence of the [Council’s] expert witness, Roger Kahler, specifically, that:
  1. a.
    even if the hose was elevated using the crane on site, that would only introduce bending force to hose and not create sufficient torsional energy to cause the hose to ‘swing around’ and ‘fling out’ of [Mr Bilson’s] hand when it was disconnected from the outlet valve by [Mr Bilson];
  2. b.
    moving the hose from the garden bed to the location of the GPT was likely to have only introduced approximately half a turn of rotation into the hose, which would not create sufficient torsional energy to cause the hose to ‘swing around’ and ‘fling out’ of [Mr Bilson’s] hand;
  3. c.
    in order for any torsional force that was introduced at the discharge end of the hose by rotation of the hose to have any effect at the outlet valve end of the hose, between three and four rotations of the hose would be required, but even that number of rotations would not have caused the hose to ‘swing around’ and ‘fling out’ of [Mr Bilson’s] hand;
  4. d.
    the likely cause of the hose ‘swinging around’ and ‘flinging out’ of [Mr Bilson’s] hand when it was disconnected from the outlet valve was:
  1. i.
    the force applied by [Mr Bilson] to the hose when he disconnected the hose from the outlet valve, including by ‘wiggling’ the hose while opening the camlock levers, combined with a lack of lubrication of the camlock lever fitting; and
  2. ii.
    the way in which the hose had been transported and stored on the Vac Truck, causing there to be a ‘permanent set’ in the hose.
  1. In the premises of 6, the learned primary judge ought to have found that the act of the employees of the [Council] moving the hose from the garden bed back to the location of the GPT did not create torsional energy within the pipe sufficient to cause the pipe to ‘swing around’ and ‘fling out’ of [Mr Bilson’s] hand when he disconnected the pipe from the outlet valve.
  1. In the alternative to 7, the learned primary judge ought to have found that even if the employees of the [Council] did elevate the hose using the crane on site and moved the hose from the garden bed to the location of the GPT, those acts did not create torsional energy within the pipe sufficient to cause the pipe to ‘swing around’ and ‘fling out’ of [Mr Bilson’s] hand when he disconnected the pipe from the outlet valve.
  1. The learned primary judge ought to have found that the [Council] did not cause or contribute to [Mr Bilson’s] injury and therefore apportioned liability 100% to [Vatsonic] and 0% to the [Council].”
  1. [35]
    The principles governing the circumstances in which an appellate court should be prepared to interfere with the fact finding made by a primary judge were summarised in this Court’s decision in Wang v Hur [2024] QCA 126 at [24],[14] as follows:
  1. “(a)
    On an appeal by way of rehearing, it is for the appellant to satisfy the appellate court that the order that is the subject of appeal is the result of some legal, factual or discretionary error.
  1. On such an appeal, the appellate court is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether it should be so satisfied.
  1. If the appellate court concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.
  1. When determining whether a judge has erred in fact, in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.
  1. However, in determining whether the judge has erred in fact, an appellate court is required to exercise restraint when invited to interfere with a primary judge’s findings of fact, at least where those findings are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. Such appellate restraint applies not merely to findings of primary facts but also applies to findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.
  1. In such cases, a finding of fact is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. The finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused [his or her] advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’, or which was ‘glaringly improbable’, or which was ‘contrary to compelling inferences’.”
  1. [36]
    There are two aspects to the Council’s challenge to the trial judge’s factual findings about the Council workers moving the hose:
    1. first, that his Honour ought not to have found that the Council workers elevated the hose using the crane, but rather that they only moved the hose from the garden back to the location of the pit; and
    2. second, a timing issue, that his Honour ought to have found that Mr Bilson’s instruction was not to move the hose while he was in the process of changing the hose from the outlet to the inlet, and that the Council workers did not move the hose at that time [although may have moved it before].
  2. [37]
    I reject the first contention, and indeed observe that it is difficult to understand how it could have been made, given that:
    1. it was alleged in paragraph 11(r) of the statement of claim that:

“… unknown to the plaintiff, at or before the time that the plaintiff was uncoupling the vacuum hose:

  1. the end of the vacuum hose was dragged back to the pit by one or more of John Jensen and Ed Savage;
  1. the sling holding the hose was hooked onto the Palfinger crane by John Jensen;
  1. the end of the vacuum hose was slid or dropped into the pit by John Jensen; and/or
  1. Ed Savage operated the Palfinger crane lifting up the other end of the vacuum hose off the ground;”[15]
  1. the Council admitted the allegation made in paragraph 11(r) of the statement of claim, at least to the extent those things occurred before the time that Mr Bilson was uncoupling the hose[16] – even noting the time limitation to the admission, that is still inconsistent with the contention that the primary judge ought to have found the Council workers did not elevate the hose using the crane;
  2. further, Mr Bilson – whose evidence the trial judge accepted as accurate and reliable – gave evidence that after the incident, while he was sitting there (calling his boss and then his wife to let them know what had happened), he “happened to look up and the hose was hanging three and a half, four metres in the air, with the end of the hose dangling over the pit”– no submissions are advanced as to why the trial judge erred in accepting Mr Bilson’s evidence; and
  3. to the extent the Council seeks to support the contention by reference to the evidence of Mr Phillips and Mr Savage,[17] this ignores the trial judge’s conclusions as to the (lack of) credibility and reliability of that evidence.
  1. [38]
    There are two parts to the second contention:  a challenge to the finding as to what Mr Bilson’s instruction was; and a challenge to the finding as to when the hose was moved.  As to the former, I do not consider Mr Bilson’s evidence ought properly be taken as meaning that his “instruction” was limited to not moving the hose while he was actually engaged in the task of changing the hose from the inlet to the outlet.  Mr Bilson’s evidence was:
    1. that the very first time they (Mr Bilson and the Council workers) undertook this task, he told them “that no one was to be near the hose when it was being changed over” and they were “not to touch the hose” at the time he was changing over the hose from one valve to the other;
    2. in the course of that conversation, Mr Bilson and the Council workers discussed that the crane would be used to lower the hose into the pit and “then, after that, we’d drag it out to the open there and decant the water, and – as it went and I – that’s  what I said, when it’s dragged out there is when I’ll unhook and then will hook back up before it’s dragged back”;
    3. once the incident had occurred, Mr Bilson was angry about two things – that the hose had been moved from the garden to the pit and that it was suspended up in the air – because he understood that whilst he was engaged or about to be engaged in the process of disconnecting the hose from the outlet and putting it back onto the inlet valve, the hose should be flat on the ground and straight; and
    4. on each of the 40 to 50 occasions that Mr Bilson and the Council workers had done this task in the previous week, Mr Bilson never saw the Council workers move the hose “whilst [he] was about to or indeed, in fact, changing over the hose from one valve to another”.
  2. [39]
    It was open to the trial judge to find, as his Honour did, that the system of work arrived at by discussion between Mr Bilson and the Council workers was that the hose was not to be moved during the part of the task which required Mr Bilson to change the hose over from the outlet to the inlet,[18] which in practical reality meant it was not to be moved until after Mr Bilson had changed it over.
  3. [40]
    In light of that conclusion, the second part of the second contention becomes irrelevant.  The effect of the instruction was not to touch or move the hose until after Mr Bilson had changed it over.  That instruction was not followed.  As the Council admitted, the hose was moved before Mr Bilson changed it over.
  4. [41]
    It follows, as to paragraph 4 of the Council’s notice of contention, that there was no error in the trial judge’s finding, at [73] and [74] of the Reasons, that the Council’s workers “acted contrary to the direction of [Mr Bilson] putting him … at risk and, therefore, failed in their duty to take reasonable care in carrying out their functions so as to avoid causing foreseeable injury to the other persons, [including Mr Bilson]”.
  5. [42]
    Paragraph 5 of the Council’s notice of contention challenges the trial judge’s finding, at [22] of the Reasons, that there was “little force” required to remove the hose from the outlet valve, and contends the trial judge ought to have found that the force required to remove the hose was “different” from occasion to occasion, and that on some occasions the hose was “sticky” and on other occasions the hose released “freely”.
  6. [43]
    What the trial judge said at [22] of the Reasons is:

“[Mr Bilson’s] evidence as to the removal of the hose from the outlet valve was that, apart from a ‘little wiggle’, there was little force required to remove the hose and that the procedure to do so, pulling the hose downwards and parallel with the outlet valve was the same as was used on previous occasions.”

  1. [44]
    The evidence given by Mr Bilson was:
    1. In his evidence in chief:

“I went to uncouple it.  It was a little bit tight.  I gave it a tiny – a little wiggle, which – the couplings are both aluminium and – alloy – and at times they bind.  I gave it a little wiggle and it flung out of my hand, around to the right…”

  1. In cross-examination by counsel for Vatsonic:

“You made mention of giving it a little wiggle.  Was that the same sort of little wiggle as you had applied for on other occasions in getting the coupling to release? --- Yes.”

  1. In cross-examination by counsel for the Council:

“… the force required you to move your torso to pull it apart with some degree of force.  That’s right, isn’t it? --- No.

But – so you say the little refers to the extent to which there was side to side movement to separate the two parts of the connection; is that right? --- No.

Well, is it your evidence that there wasn’t much movement that was required by way of wiggling? --- Yeah.  It was a little wiggle, and then let it go.”

  1. In further cross-examination by counsel for the Council, referring to a handwritten statement by Mr Bilson, prepared for a Workplace Health and Safety inspector on 18 September 2017, in which Mr Bilson said “I undid the vac hose camlocks, it was a bit tight so I gave it a bit of a wiggle” (at paragraph 12):

“And that’s more than a little bit of a wiggle, isn’t it? It’s a bit of a wiggle, not a little wiggle; you with me?---Not really.

Yeah. You don’t use the word little in this statement, do you? You say you gave it a bit of a wiggle?---A bit of a wiggle.

And that’s more consistent with the amount of force that you were actually required to apply to remove the two parts from each other; correct?---No.”

  1. In further cross-examination by counsel for the Council, after a series of questions about connecting and disconnecting the bumble bee hose either to the inlet valve, the inlet valve via the extra grey section or the outlet valve:

“You said that you’d never had problems with the yellow part of the hose moving around unexpectedly after disconnecting it from the inlet valve; correct?--- Correct.

And you said as well, I think before lunch, that you’d never had problems with the yellow hose moving around in unexpected ways when you were disconnecting it from the outlet hose?--- Correct.

Returning then to the force that was needed to do that, were you describing that lack of problem as being one that was, you know – sorry, I’ll withdraw that. When you  said there was no unexpected movement, was that only when you were connecting and disconnecting the yellow hose to the inlet and outlet pipes without the grey extra bit or was that with the grey extra bit you never had that problem or both?---I don’t sort of – you – yeah.

Yeah. So did you never have that problem at all both before you manufactured the grey bit and after?---I don’t know how to answer that.

Did – sorry, you don’t know?---I – I don’t know how to answer. Like, they’re – they’re different all the time.

What I’m suggesting to you is that, from time to time when you disconnect the yellow part of the hose from either the inlet valve, the outlet valve or, indeed, the end of the grey extra bit of pipe, sometimes it would slip in unexpected ways and you’d catch it; correct?---No.

… [an objection to a further question, which overlooked the “no” answer, was upheld]

What you said, Mr Bilson, was that it was different all the time, I think, when – in terms of what you experienced when you connected or disconnected the yellow part of the hose either to the inlet valve, the outlet valve or the end of the yellow pipe?---No.

You said that a moment ago. I think you said it was different all the time?---It’s not different all the time.

Well, how is it then. Is it the same all the time?---No. Sometimes it – they’re sticky. They’re all made out of aluminium and they bind – bond together sometimes - - -

Yes?--- - - - and sometimes they come out freely.

Right. So it does – it did – are you talking about how you experienced it at the time now?---That’s many times. Sometimes it’s freely. Sometimes a bit sticky. Sometimes it can have a grain of sand in there and make it a little bit more sticky.

And are you describing now how you personally experienced this particular trucking operation. Sometimes it was easy. Sometimes it wasn’t?---No, it’s all trucks.

MR DIEHM:  Well, ‘sticky’ the witness said.

…

[MR DE JERSEY] … So, all of the times, the 50 odd times that it happened prior to them [ie the Council workers] touching it [the hose] ---? Yeah.

--- are you with me, you’d experienced the connection sometimes being easy to remove and sometimes being difficult to remove; correct? --- No.

And it’s the case, isn’t it, that when it was difficult to remove sometimes it would come off in unpredictable ways; correct?

HIS HONOUR:  I thought he said no.

MR DIEHM:  I object. He said no.

HIS HONOUR:  Yes. I think everybody’s of the same mind. I think the answer was no.”[19]

  1. [45]
    Careful consideration of the evidence reveals no error in the trial judge’s finding at [22] of the Reasons.  Mr Bilson did not give evidence that the force required to remove the hose was “different” from occasion to occasion – he denied that when it was put to him in cross-examination.  He did say that sometimes the connection moved “freely” and sometimes it was “sticky”, perhaps if there was a grain of sand in it.  The trial judge was cognizant of this evidence, referring to it at [16] of the Reasons.  The finding at [22] is consistent with Mr Bilson’s evidence.
  2. [46]
    The next three paragraphs of the Council’s notice of contention (6, 7 and 8) argue that the trial judge ought to have accepted the evidence of the Council’s expert witness, Mr Kahler, specifically his evidence that:
    1. whether the hose was elevated using the crane, or only moved from the garden to the pit, that movement would not create sufficient torsional energy to cause the hose to “swing around” and “fling out” of Mr Bilson’s hand when it was disconnected from the outlet valve; and
    2. the likely cause of the hose “swinging around” and “flying out” of Mr Bilson’s hand was the force applied by Mr Bilson to the hose when he disconnected it from the outlet valve and the way in which the hose had been transported and stored on the vac truck, causing there to be a “permanent set” in the hose.
  3. [47]
    The Council’s submissions in support of this contention do not identify error on the part of the trial judge in terms of his analysis of the evidence of Mr Contoyannis and Mr Kahler, respectively, or the reasons that his Honour gave for preferring the evidence of Mr Contoyannis over that of Mr Kahler.  Nor is there any challenge to the trial judge’s conclusion as to the accuracy and reliability of Mr Bilson’s evidence, and his findings of fact on the basis of that evidence (other than in the limited respects addressed, and rejected, above).  The contention is really one that the trial judge ought to have accepted Mr Kahler’s evidence, having regard to the content of it, based as it was on experimental testing undertaken by Mr Kahler.[20]
  4. [48]
    In my respectful view, this contention misconceives the nature of expert evidence.  Facts in issue are generally required to be proved by direct evidence (documentary or oral), or inferences to be drawn from facts proved in that way.  Where a witness is suitably qualified, in a recognised field of specialised knowledge, to have become an expert in an aspect of that field, they may be permitted to give evidence of their opinion about a matter in issue.[21]  The rationale for the rule is that, by virtue of that person’s training, study or experience, they may be able to assist the tribunal of fact (here, a judge) to understand something that the judge would not otherwise be able to understand.  If it were a matter of ordinary common knowledge or understanding, the opinion would not be admissible.
  5. [49]
    Importantly, however, as Heydon JA observed in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [64]:

“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509–510; Paric v John Holland (Constructions) Pty Ltd (at 846; 87). One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.”[22]

  1. [50]
    Further, at [70] of Makita, Heydon JA referred to the statement by King CJ in R v Fowler (1985) 39 SASR 440 at 442, that:

“… It must be kept steadily in mind that the court (the jury in a jury trial) is the tribunal of fact and that it is no part of the function of a witness to decide what version or interpretation of the facts is to be accepted or rejected.”

  1. [51]
    As the passages from the Reasons set out at paragraph [32] above make plain, the key factor which lead the trial judge to reject the revised opinion of Mr Kahler, following his further testing, was the disconnect between the factual hypothesis underpinning that opinion, and the facts as his Honour found them to be based on the “unchallenged evidence of [Mr Bilson]”.  The Council’s submissions on this appeal do not address this.  In the circumstances, the trial judge did not err in rejecting the expert opinion of Mr Kahler.
  2. [52]
    It follows that the Council’s overall contention, that the trial judge ought to have found that the Council did not cause or contribute to Mr Bilson’s injury, is rejected.

Did the trial judge err in finding Vatsonic liable for the injury to Mr Bilson?

  1. [53]
    The first three grounds of Vatsonic and WorkCover’s[23] appeal concern the finding of liability on the part of Vatsonic.
  2. [54]
    By ground 1, Vatsonic contends the trial judge erred in finding that Vatsonic breached its duty of care to Mr Bilson because “on the facts found by the trial judge, or which ought to have been found, there was a safe system of work established, based on instructions provided by the employer”.
  3. [55]
    The reasoning of the trial judge, in relation to the finding of breach of duty, was as follows:
  1. “[80]
    [Mr Bilson] argues the risk was clear and should have been considered. At paragraphs 68, 69 and 70 [of Mr Bilson’s submissions], the following is put:
  1. 68
    There was no risk assessment undertaken by [Vatsonic] to consider the risk of harm to Mr Bilson, when [Vatsonic] knew that the [Council’s] workers were also involved in moving, slinging and lifting the hose, and knowing that [Mr Bilson] was required to work in cooperation with the [Council’s].
  2. 69
    The hose was a heavy industrial hose with metal camlocks on it. It was owned by [Vatsonic]. It knew of the characteristics of the hose. It is reasonably foreseeable, without hindsight bias, that moving or lifting the hose could cause harm to Mr Bilson as he was handling it in several ways:
  • The hose twisting or pulling against Mr Bilson's body could cause a strain injury.
  • The hose twisting or pulling against Mr Bilson's body could cause is body to be pinched by the camlocks.
  • The hose twisting with the camlocks spinning in Mr Bilson’s hands could cause an injury to any part of his body within range. As it happened here, the eye was unfortunately the part injured.
  1. 70
    A guide to machinery and equipment safety was available before the injury under the Work Health and Safety Act 2011. It refers to identifying, de-energising and isolation procedures for stored energy.
  1. [81]
    I have already in these reasons addressed the matters arising regarding the expert evidence of Mr Contoyannis and Mr Kahler, and have indicated my preference for the opinions of Mr Contoyannis. Only his opinions answered the question that arose from the evidence which I accepted, in respect of [Mr Bilson] and what he said happened with the hose upon uncoupling, and his subsequent observations.
  2. [82]
    These findings combined with the opinions expressed by Mr Contoyannis lead to the obvious need to consider the risks associated with the work conducted by [Mr Bilson] in conjunction with the assistance provided by the [Council’s] workers [such that] a safe work method statement (‘SWMS’) was required for the task of clearing the GPT.
  3. [83]
    The risk of injury from the tasks required to be performed was evident and foreseeable. The need for a SWMS was apparent, but, no SWMS existed. Notwithstanding this need, no person undertook a site assessment or considered an assessment of the task necessary to identify what risks might arise to workers in the course of performing the informal system of work that had developed and how those risks might be addressed.
  4. [84]
    Both [Vatsonic and the Council], and the [Council’s] workers, ought to have foreseen the risk of harm to [Mr Bilson], as that risk was not insignificant not far fetched or fanciful. [Vatsonic and the Council’s] and the [Council’s] workers breached their duties by failing to take proper precautions, and the [Council] is vicariously liable for the breach of its workers.”
  1. [56]
    The trial judge then referred, at [85], to paragraphs 18 and 19 of the statement of claim, which contain the pleading as to what precautions Vatsonic and the Council, respectively, should have taken to address the risk of injury.  As His Honour noted, those paragraphs refer directly to the earlier pleadings and to the precautions Vatsonic and the Council and the Council’s workers should have taken (by reference to paragraphs 15 and 16 of the statement of claim, respectively).  At [89] of the Reasons, his Honour referred to the matters the court is required to consider, in deciding whether a reasonable person would have taken precautions against a risk of injury, identified in s 305B(2) of the Workers’ Compensation and Rehabilitation Act 2003 (namely, the probability that the injury would occur if care were not taken; the likely seriousness of the injury; and the burden of taking precautions to avoid the risk of injury).
  2. [57]
    His Honour then concluded:
  1. “[90]
    Each of those considerations weigh in my assessment, when considering the place, equipment and task involved in requiring precautions against the risk of harm being taken.  Such precautions, as identified in the Further Amended Statement of Claim were not taken and give rise to the breach of duty by both defendants.”
  1. [58]
    Vatsonic’s argument, under ground 1, is essentially that the informal system of work established by Mr Bilson, with the Council workers – that the hose would not be moved between the emptying of the tank and the relocation of the hose from the outlet to the inlet valve – was a safe system of work, and there was no further precaution that should have been taken “given that everyone involved well knew what they were to do and not do”.  Further, Vatsonic submits that the undertaking of a risk assessment “would not have identified some other precaution to be taken…, than the precautions that were already being taken.  The workers had turned their minds as to how to safely perform the work and devised a system to achieve that.  The reduction of the safe work method into a written statement was not shown on the evidence to be one that would have made any difference, given that the workers plainly knew what the system of work was but just failed to follow it on this occasion”.[24]
  2. [59]
    Vatsonic further submits that the system of work adopted was, in part, “based on training and instruction provided to Mr Bilson by Vatsonic”.  Taken in combination with the “elaboration” on that system, by the discussions between Mr Bilson and the Council workers, Vatsonic submits it discharged its obligation as an employer to provide a safe system of work.
  3. [60]
    The evidence as to training is limited to:
    1. Mr Bilson’s evidence that, on his first day of employment with Vatsonic, another employee showed him how to operate the vac truck; and
    2. the equivocal acceptance by Mr Bilson, in cross-examination, that he understood from his training by Vatsonic that the hose should be flat on the ground and straight when he was moving it from one valve to the other.  I say “equivocal” because, although Mr Bilson said “correct” when this was put to him by counsel for Vatsonic, when he was later cross-examined by counsel for the Council, he said that the rule that no one was to touch the hose was not based on something he had been told by somebody at Vatsonic, but was “my rule all the time”.
  4. [61]
    Even if it be accepted that “somebody at Vatsonic” told Mr Bilson, on his first day of employment, that the hose should remain flat and straight on the ground when changing the hose over, there was no evidence of the content of any training given to Mr Bilson and, importantly, no evidence of any explanation being given as to why the hose should remain flat and straight on the ground.
  5. [62]
    The trial judge accepted Mr Contoyannis’ evidence that a review or audit of the risks involved in a task, such as Mr Bilson and the Council workers were engaged in, would help to identify the risks, and then an assessment of those risks should lead to the preparation of a safe operating procedure (a safe work methods statement), other than in the rare case where the hazard is such that no further action is required; but even in that case, as Mr Contoyannis said, “you would document why that would be the case”.[25]
  6. [63]
    Had a risk assessment been undertaken, and a safe work method statement been prepared, one would expect that the reason for ensuring the hose remained flat and straight during the changeover would be identified.  Understanding the reason for doing something is likely to ensure, to a greater degree than otherwise, that it is done.
  7. [64]
    For that reason, I do not accept Vatsonic’s submission that the precautions identified by Mr Contoyannis, and accepted by the trial judge as both reasonable and required in order to discharge the duty owed by Vatsonic, would not have made any difference.  In the absence of a formal safe operating procedure, the Council workers could have viewed Mr Bilson’s instruction not to touch the hose as mere pedantry on his part.  The fact that they had all followed the informal system in the previous week, with no injury resulting, was good luck rather than good management.  I accept the submission for Mr Bilson in this Court that the informal system arrived at by Mr Bilson and the Council workers “was inherently unsafe because of the risk of harm materialising if any participant acted contrary to the system, in the absence of an informed appreciation by and education of the participants of the seriousness of the potential risk of harm”.[26]  The trial judge was correct to conclude that Vatsonic breached its duty of care owed to Mr Bilson.
  8. [65]
    By ground 2, Vatsonic challenges the trial judge’s finding in relation to causation.  Vatsonic criticises the trial judge’s reasons, on the basis that the reasons fail to set out “a counterfactual scenario as to what would have occurred had the identified precaution been taken”.  In that context,[27] reference is made to the reasons of Maxwell P in Findlay v Victoria [2009] VSCA 294 at [2]-[3], where his Honour said:

“When – as here – a plaintiff alleges a negligent failure to act, the causal link between the breach of duty and the claimed damage can only be established by means of a counterfactual hypothesis. That is, the plaintiff must propound an alternative state of facts premised upon the defendant’s having exercised reasonable care and, specifically, upon there having been no relevant failure to act. The plaintiff’s counterfactual hypothesis must identify:

  1. what the defendant would have done had reasonable care been exercised; and
  1. how the taking of that action (or those actions) would have averted the loss or damage which the plaintiff in fact suffered.

The plaintiff may, of course, advance more than one such hypothesis. For example, the plaintiff may contend that the defendant could – and should – have taken one of several alternative courses of action, any one of which would have been sufficient to avert the loss. Again, the plaintiff may identify a specific course of action which ought to have been taken but which – the plaintiff accepts – could have produced more than one possible result. The plaintiff would have to prove that, whichever result had followed from the action in question, the loss would have been averted.”

  1. [66]
    The trial judge’s reasons, on the question of causation, were economical but sufficient.  I have already referred to the reasons leading to the finding of breach of duty (see paragraphs [56] and [57] above).  Following on from [90], the trial judge said:
  1. “[91]
    In light of those findings, it is necessary to turn to causation. Section 305D(1)(a) of the WCRA [which] is, it has been said, a statutory statement of the ‘but for’ test of causation. Here, there is a finding of breach by more than one defendant, but, that does not preclude satisfaction of the ‘but for’ test.
  2. [92]
    As submitted for [Mr Bilson] and I should say, accepted by me, ‘but for the failure by [Vatsonic] to take the precautions alleged against it, the incident would not have occurred, and [Mr Bilson] would not have suffered his injuries’. In a similar vein, [Mr Bilson] submits, in respect of the [Council], in accordance with the common law, that, ‘it is more probable than not the injuries [Mr Bilson] sustained would have been prevented or minimised if the Council and its workers had taken the precautions alleged against them’.”[28]
  1. [67]
    In this way, the trial judge has adopted the “counterfactual hypothesis” identified by Mr Bilson, in terms of:
    1. what Vatsonic would have done, had reasonable care been exercised – in particular, that it would have undertaken a risk assessment and prepared a safe work method statement, communicating the safe operating procedure not only to Mr Bilson but also to the Council workers with whom Mr Bilson had to cooperate; and
    2. how that would have averted the injury (loss) suffered by Mr Bilson – had a risk assessment been undertaken, and a safe operating procedure not only been identified but also documented and communicated to Mr Bilson and the Council workers, the Council workers are unlikely to have moved the hose contrary to that procedure, in which case Mr Bilson would not have been injured.
  2. [68]
    The trial judge did not err in concluding that causation was established.
  3. [69]
    By ground 3, Vatsonic contends the trial judge erred in the apportionment of liability, arguing that “it ought to have been 100% against [the Council] on the basis the real cause of the accident was a casual act of negligence by [the Council], through its employees, in not complying with an established system of work”.
  4. [70]
    The trial judge’s reasons for apportioning liability in the way that his Honour did commence by reference to s 6(c) and s 7 of the Law Reform Act 1995.  Section 7 relevantly provides:

“In any proceedings for contribution under this division the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage …”.[29]

  1. [71]
    It was the act of the Council’s workers, in moving the hose contrary to the informal system of work arranged between them and Mr Bilson, which directly caused the incident.  But it was the act – or more properly the omission – of Vatsonic, the employer, that resulted in there being no proper assessment of the risk, formulation of a safe operating procedure, documentation and then communication of that procedure, to Mr Bilson or the Council’s workers.  As the trial judge noted, it is relevant in that regard that Vatsonic, as Mr Bilson’s employer, was a specialist contractor engaged to apply its expertise in operating the vac truck and its attachment.[30]
  2. [72]
    The suggestion that Vatsonic should bear no responsibility for the incident, despite the finding of breach of its non-delegable duty as employer, and the causative link between that breach and the loss (injury) suffered by Mr Bilson, is not just or equitable.  Vatsonic cannot abrogate its responsibility in this way.[31]
  3. [73]
    The trial judge apportioned liability 70% to Vatsonic and 30% to the Council, “noting the findings regarding the actions of [the Council’s] workers and the responsibilities of [Vatsonic]”.[32]  In my view, that was an appropriate apportionment in the circumstances.  It may have been arguable that each of Vatsonic and the Council ought to bear equal responsibility, such that a 50/50 apportionment would be appropriate.  However, in my view, the position of Vatsonic as the employer, as well as the specialist contractor, is such that it ought to bear a greater proportion of the liability.  For that reason, I find no error in the conclusion reached by the trial judge.

Did the trial judge err in construing the indemnity clause as operating in this case?

  1. [74]
    Ground 4 of Vatsonic’s appeal challenges the trial judge’s conclusion in relation to the claim to indemnity by the Council as against Vatsonic, based on the contract between them.
  2. [75]
    The contract is constituted by Vatsonic’s adoption of the Council’s standard contractual terms for contractors engaged “for the wet hire of earthmoving plant, trucks and associated construction services”.  The agreement has three parts:
    1. Part 1 – described as “contract clauses”;
    2. Part 2 – described as “particular conditions of contract”, which commences with the following explanatory provisions:
  1. “2.1
    Introduction
  2. 2.1.1
    Townsville City Council (The Principal) is seeking to establish an Approved Contractor List for the Wet Hire of Powered Mobile Plant, Trucks and Associated Civil Construction Services.  Refer to the schedules for the specifics of the Equipment required by The Principal.
  3. 2.1.2
    It is The Principal’s intention to compile a categorised list of Equipment and draw from that list whenever an item of Equipment is required.  There is no guarantee by The Principal that it will use any or all of the items quoted.
  4. 2.2
    Background Information
  5. 2.2.1
    When The Principal seeks to Hire Equipment it can undertake a request for quotation each time, or alternatively it can save time and money by simply engaging required items from Contractors who have been assessed as suitable and have been included on an ‘Approved Contractor List’ which has been certified by a full meeting of the Townsville City Council.
  6. 2.2.2
    The Approved Contractor List will consist of Contractors who submit responses that The Principal deems meet all of the criteria requirements.
  7. 2.2.3
    Equipment will only be hired from the Approved Contractor List if The Principal’s own internal resources cannot meet the requirements.
  8. 2.3
    Particulars of Work under the Contract
  9. 2.3.1
    This expression of interest is for the Wet Hire of Equipment only.
  10. 2.3.2
    Contractors are to work on The Principal’s sites, follow The Principal’s directions and use The Principal’s safety systems and paperwork.  At no time under this Contract is a Contractor expected to undertake the role of Site Controller or coordinator.
  11. 2.3.2
    The Principal is seeking expressions of interest from Contractors who are interested in supplying the following types of Equipment on a Wet Hire[33] basis…”
  1. Part 3 – described as the “respondent’s submission”, which contains the particular contractor’s details (in this case, Vatsonic) and their agreement “to be bound by and comply with the terms and conditions of Part 1, Part 2 and Part 3” of the contract.
  1. [76]
    The relevant indemnity clause is contained in part 1 of the contract, and provides as follows (where the Contractor is Vatsonic and the Principal is the Council):

“1.39Contractor to Indemnify The Principal

  1. 1.39.1
    You agree to indemnify The Principal and keep The Principal indemnified against all claims for injury loss or damage suffered by any person or property arising out of your performance of the Contract and all liability for costs, charges and expenses incurred by The Principal in respect of the claim of any person or body. …”[34]
  1. [77]
    The “Contract” is defined in clause 1.1 to mean “all the documents that constitute or evidence the agreement between” the principal (the Council) and the successful contractor (here, Vatsonic).  “Work under the Contract” is defined in clause 1.1, relevantly, to mean the supply to the principal of “Wet hired Trucks”; with “Wet Hire” defined to mean “Equipment hired with all required Operators/Drivers”.
  2. [78]
    Clause 1.7 imposed the following obligations on Vatsonic (as contractor):
  1. “1.7.1
    You must, at your own risk, carry out the Contract for the Contract term in accordance with every condition in the Contract documents.
  2. 1.7.2
    You must perform Work Under the Contract in a diligent manner and with all necessary skill and care expected in accordance with the provision of this Work Under the Contract and in accordance with all representations and warranties as to your experience and ability expressly or implicitly made by reference to its proposal and this agreement or by law.”
  1. [79]
    Clause 1.41 required Vatsonic, as the contractor, to hold and maintain various insurance:
  1. “1.41
    Contractor Insurances
  2. 1.41.1
    You must hold and maintain all appropriate insurance’s for the operation of this Contract.  This includes Public Liability Insurance and Workers Compensation where You have any employee(s).  Certificates MUST be provided when submitting Part 3 of the Approved Contractor List document.

…

  1. 1.41.4
    You must effect and maintain at your own cost public liability insurance for the sum of not less than ten million dollars ($10,000,00.00) for the respective rights and interests in respect of liability for bodily injury (including death) and damage to property occasioned in or about the carrying out of this Contract.  The Principal reserves the right to increase the amount of public liability required as needed.  Public Liability Certificates of Insurance are to specifically state that they include cover for Public Liability.
  2. 1.41.5
    All persons employed in connection with the Contract must be insured by You to the full extent of your liability under the Workers’ Compensation and Rehabilitation Act 2003 and must be kept so insured during the continuance of the Contract. …”
  1. [80]
    Under part 2, the particular conditions of the contract, the Council (as principal) agreed to compensate the contractor for damage to the equipment provided pursuant to the “wet hire”, in the limited circumstances outlined in clause 2.9.1.  Clause 2.10.1 provided that:
  1. “2.10.1
    The Principal’s responsibilities under the Contract are as follows.  The Principal will:
  1. Allow delivery of the Equipment at the delivery location; and
  1. Take all reasonable care to protect and keep safe the Operator and the Equipment during the period of Hire; and
  1. Accept that the Equipment should not operate under conditions and/or in situations which are dangerous for the Operator or which are likely to result in damage to the Equipment beyond normal wear and tear.”
  1. [81]
    Clause 2.13 of the contract set out the “Contractor Responsibilities”, relevantly, as follows:
  1. “2.13.1
    The Contractor’s responsibilities under the Contract are as follows:-

…

  1. Allow the Equipment to be operated under the direction of The Principal;
  1. Supply the Operator(s) necessary for the safe Hire of Equipment; and
  1. Supply any required additional personnel for the safe, effective operation of the Equipment; and
  1. Acknowledge that at all times, however, the Operator(s) of such Equipment is deemed to be the employee or agent of the owner and not of The Principal; and

…

  1. Ensure that any Operator provided with the Equipment will not do anything inconsistent with a safe system of work and hereby indemnifies The Principal should the Operator not do so; …”
  1. [82]
    Clause 2.19 imposed workplace health and safety obligations on contractors, including when working on a site controlled by the principal.
  2. [83]
    At the trial, Vatsonic submitted that clause 1.39.1 ought not be interpreted as requiring it to indemnify the Council, because the injury suffered by Mr Bilson did not “arise out of [Vatsonic’s] performance of the Contract”; it arose out of the negligence of the Council workers.  Vatsonic relied upon the approach taken in Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1 as supporting its argument.  The Council submitted that the indemnity provided by clause 1.39.1 is comprehensive and did apply.[35]
  3. [84]
    The trial judge distinguished the Erect Safe Scaffolding case, on the basis that, in that case, the court had found that the actual liability of the contractor arose from its independent act of negligence, and not from the performance of the subcontract work.  In contrast, the trial judge found that:
  1. “[118]
    Here, however, the injuries sustained by [Mr Bilson] arose directly from the performance of the task, the subject of the contractual arrangements between [Vatsonic] and [the Council].  As such, the injury of [Mr Bilson] arose directly out of the performance of the contract.”
  1. [85]
    Accordingly, his Honour found that, under the terms of the contract, Vatsonic was required to indemnify the Council for the loss suffered by Mr Bilson.  As mentioned at the outset, it was on this basis that judgment was entered only against Vatsonic, and not the Council.
  2. [86]
    In support of ground 4, Vatsonic submits the trial judge was wrong to distinguish Erect Safe Scaffolding, and ought to have concluded that the Council’s liability to Mr Bilson was not one that “arose out of Vatsonic’s performance of the contract”, but rather was “a liability for its [the Council’s] own breach or for the breach by its employees of their duty of care to Mr Bilson (a vicarious liability).”[36]
  3. [87]
    In Erect Safe Scaffolding, a worker was employed by a formwork company, Dalma, which was subcontracted to construct formwork for a large building.  The head contractor on the site was Australand.  Erect Safe Scaffolding provided scaffolding services to Australand and was responsible for erecting and maintaining the scaffolding.  Whilst working on the site, the worker was injured when he hit his head on the crossbar ties supporting the scaffolding.
  4. [88]
    To ensure the site was operated safely, Australand had previously formed a Safety Committee, which included a representative of each subcontractor, including Dalma.  As summarised by Giles JA at [9]:

“Australand incurred liability because it owed to [the worker] a duty to take reasonable care to see that the site was safe, and breached that duty by failing to take reasonable care to see that the danger presented by the protruding ties – of which it was aware through the Work Safety Committee ‘walk around’ – was minuted and attended to.  Erect Safe created the problem, and failed to rectify it, in its performance of the Subcontract Works.”

  1. [89]
    At first instance, the trial judge found both Erect Safe and Australand had breached their duty of care to the worker; but found that the employer, Dalma, had not, as it was entitled to rely on the Safety Committee to ensure the site was safe.  On appeal, it was found that Dalma was partly liable for the worker’s injuries.  Dalma’s representative on the Safety Committee (and so Dalma) knew of the projecting ties and that they presented a danger.  As the employer of the worker, it could not abrogate the duty owed to its employees by simply relying on the Safety Committee – “it was necessary that Dalma itself follow up to see that the danger to its employees was removed”.[37]
  2. [90]
    The subcontract between Erect Safe and Australand imposed obligations of indemnity and insurance on Erect Safe.  Clause 11 required Erect Safe to provide the indemnity to Australand and clause 12 required Erect Safe to obtain insurance in the joint names of Australand and Erect Safe.  Clause 11 was in the following terms:

“INDEMNITY

The Subcontractor must indemnify Australand Constructions against all damage, expense (including lawyers’ fees and expenses on a solicitor/client basis), loss (including financial loss) or liability of any nature suffered or incurred by Australand Constructions arising out of the performance of the Subcontract Works and its other obligations under the Subcontract.”[38]

  1. [91]
    At first instance, it was held that clause 11 was engaged, with the consequence that Erect Safe was required to indemnify Australand for the verdict which the plaintiff obtained against it.  On appeal, a majority of the Court of Appeal (Giles JA and McClellan CJ at CL; Basten JA dissenting) held that the clause was not engaged in the circumstances of this case because Australand’s liability did not “arise out of the performance by Erect Safe of the Subcontract Works”.
  2. [92]
    Giles JA commenced his reasons by observing, at [5], that:

“The operation of any contractual indemnity must be found in the application to the facts of the words of the relevant clause, construed as part of the contract as a whole.  Decisions on the operation of contractual indemnities in different words in different contracts are likely to be of limited assistance.”

  1. [93]
    That is a consistent theme in cases dealing with this point.[39]
  2. [94]
    Giles JA noted that the words “arising out of” are wide, but the relationship that they require, given their context in an indemnity clause “should not be remote, but one of substance albeit less than that required by words such as ‘caused by’ or ‘as a result of’” (at [11]).  He also noted the principle that, so far as ambiguous, the clause should be construed in favour of the indemnifier, Erect Safe.  Giles JA concluded that Australand’s liability to the worker did not “arise out of” the performance by Erect Safe of the subcontract works.  Although Erect Safe’s performance of the subcontract works “provided the occasion for [Australand] to incur liability” that was insufficient (at [12]).
  3. [95]
    McClellan CJ at CL likewise found the indemnity was confined, and held that the liability of Australand did not “arise” out of the performance by Erect Safe of any of its contractual obligations.  Like Giles JA, his Honour said that “[a]lthough it is true that the occasion for the liability of Australand was the erection by Erect Safe of the faulty scaffold, the liability of Australand arises from its own independent act of negligence in failing to maintain an appropriate safety regime for the site” (at [157]).
  4. [96]
    Basten JA dissented and concluded that Erect Safe was liable to indemnify Australand because Australand’s liability did arise out of the performance of the subcontract works.  Basten JA observed that the phrase “arising out of” connotes a “weak causal relationship, rather than a direct one (as might the term ‘caused by’) or an exclusive one (as might ‘caused solely by’)” (at [38]), “which will be satisfied when the activity of the sub-contractor in the performance of the contract contributes in a material way to the breach of duty by the contractor” (at [97]).
  5. [97]
    Basten JA undertook a comprehensive analysis of the authorities which have considered the meaning of the phrase “arising out of”, including in the context of contractual indemnity clauses.[40]
  6. [98]
    One of the decisions referred to by Basten JA is Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500, which considered the meaning of “arising out of the use of the vehicle” in the context of a provision of the Motor Vehicle (Third Party Insurance Act) 1943 (WA).  The negligent act of the father in Dickinson was leaving his two children in the vehicle, one with a box of matches, with which he managed to start a fire in the car, leading to injury of his sister.  The High Court held that:

“Whether or not the appellant’s [ie the sister’s] injuries were actually caused by the use of the motor car, it is sufficient to say that they arose out of such use.  The test posited by the words ‘arising out of’ is wider than that posited by the words ‘caused by’ and the former, although it involves some causal or consequential relationship between the use of the vehicle and the injuries, does not require the direct or proximate relationship which would be necessary to conclude that the injuries were caused by the use of the vehicle.”[41]

  1. [99]
    The first of the cases Basten JA referred to in the context of a contractual indemnity clause is Davis v Commissioner for Main Roads (1967) 117 CLR 529.  As summarised by Basten JA at [56]:

“The case involved a sub-contractor doing trucking work for the Commissioner for Main Roads (the respondent).  The sub-contractor, in carrying out the relevant work, collided with a train, causing damage to the train for which the Commissioner for Railways sued him.  The sub-contractor sought to recover contribution from the respondent, alleging that the accident had been due to the separate negligent conduct of the respondent.  The respondent relied upon an indemnity clause in the sub-contract which read as follows:

‘The Contractor shall undertake the whole risk of carrying out the contract, and without limiting the generality thereof, shall:

  1. hold the Commissioner indemnified against all claims arising out of:
  1. damage to the property of the Contractor or any third party;

…

whether such damage … is caused by the use of a motor vehicle or by goods falling or projecting therefrom or otherwise howsoever….

The Contractor shall insure any motor vehicle used on the contract in the joint names of himself and the Commissioner under a policy unlimited in amount covering liability for damage to the property of third parties …’”

  1. [100]
    The High Court held by majority (Menzies J, Barwick CJ and McTiernan JJ agreeing; Kitto and Windeyer JJ dissenting) that the indemnity clause extended to a claim for damage to the property of a third party caused by collision with the contractor’s truck, where the negligence of the respondent Commissioner was a cause of the damage.  Menzies J rejected a submission that the clause could not be understood as conferring an indemnity upon the respondent Commissioner against liability for its own negligence, saying (at 537):

“Default of this sort for which the Commissioner is liable seems to me the very subject matter of [the indemnity clause].  Thus, to take an instance, indemnity is given against claims against the Commissioner arising out of the death or bodily injury of the contractor himself.  Such a claim against the Commissioner could not be maintained in the absence of fault on the part of the Commissioner, its servants and agents. Accordingly the only purpose, or at least the principal purpose, for taking such an indemnity, would be to protect the Commissioner against liability for its own fault.  Furthermore, once it appears that the indemnity does extend to the Commissioner’s fault, including negligence, there is no sound ground for limiting the indemnity to particular breaches of the duty of care.  The indemnity should be allowed to operate in accordance with its terms which throw upon the contractor the whole risk of carrying out the contract.”

  1. [101]
    Another of the cases referred to by Basten JA is Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd (2000) 23 WAR 291, on which the Council relies in this appeal.  That case concerned an agreement by which Speno had contracted with Hamersley to carry out rail grinding work for Hamersley on its railway.  A worker employed by Speno was injured whilst travelling in a HIRail (a car adapted to travel on rails) on the railway in the course of his work, as a result of the negligence of employees of Hamersley.  The worker claimed damages for negligence from Hamersley.  Hamersley claimed to be entitled to be indemnified by Speno for its liability to the worker, on the basis of clause 37 of the agreement between them, which provided that:

“The contractor [Speno] shall be solely liable for, and shall be deemed to indemnify and hold harmless the company [Hamersley] against any and all liabilities, losses, damages… of very name or nature whatsoever arising whether:

  1. under any statute or at common law in respect of personal injury … or death of
  1. any and all persons employed by it in the execution of the Work/Services …

resulting either directly or as a consequence of the performance of the Work/Services under the Contract.”

  1. [102]
    Hamersley also claimed it was entitled to be indemnified by an insurance company, under a policy(ies) of insurance obtained by Speno pursuant to the agreement with Hamersley.  It was in the policy of insurance that the relevant phrase “arising out of the performance, by the insured [Speno] … of any contract or agreement for the performance of work” appeared (see at [8] and [9]).  The insurer argued that Hamersley’s liability in damages to the worker did not arise out of the performance by Speno of the contract, but rather arose out of the negligent acts of Hamersley’s employees.  It argued that Speno’s performance of the contract with Hamersley merely gave the occasion for Hamersley to be negligent; the performance of the contract by Speno formed no element of the worker’s cause of action against Hamersley (at [10]).
  2. [103]
    In rejecting that argument, Malcolm CJ said:
  1. “[11]
    In the language of the policy, the question to be determined was not whether the liability to [the worker] was caused by the performance by Speno of the contract, but whether the liability of Hamersley to [the worker] arose out of the performance by Speno of the contract with Hamersley.  [Reference was made to the passage from Dickinson v Motor Vehicle Insurance Trust at 505 quoted at [98] above]
  2. [12]
    In my opinion, [the worker’s] journey on the HIRail was something being done in the course of the performance of the contract by Speno.  It follows that the negligent incident giving rise to liability occurred in the course of Speno’s performance of the contract.  The injury to [the worker] occurred in the course of such performance.  In my view, this was enough to establish that Hamersley’s liability was one ‘arising out of’ the performance by Speno of the contract.  It follows that Zurich was bound to indemnify Hamersley in respect of its liability [the worker]…”
  1. [104]
    Ipp J also rejected the argument, saying at [66]:

“It is true that the negligent act that gave rise to liability was the operation of the switches while the HIRail was travelling on the rail track, and not some aspect of Speno’s performance of [the contract]. But the incident giving rise to liability occurred in the course of Speno’s performance of the contract. That is to say, the HIRail was on the track and [the worker] was in the HIRail only because Speno required them to be in those places so as to enable it to perform the contract. There is undoubtedly a causal link between Hamersley’s liability and the performance by Speno of the contract, namely, the presence of the HIRail (with [the worker] in it) on the tracks at the very moment the switches were negligently operated.”[42]

  1. [105]
    A number of the subsequent cases which have referred to Erect Safe Scaffolding have confined it to its particular facts, and the particular wording of the indemnity clause.  The reasoning of the majority has more often been distinguished on that basis than applied.[43]
  2. [106]
    More broadly, the principles that apply to the construction of an indemnity clause were summarised by Applegarth J in Samways v WorkCover Queensland [2010] QSC 127:[44]
  1. “[66]
    Such an indemnity clause falls to be construed strictly, and any doubt as to the construction should be resolved in favour of the indemnifier.[45] The doubt may arise not only from the uncertain meaning of a particular expression but from its apparent width of possible application.[46]
  2. [67]
    The authorities that require ambiguity to be resolved in favour of the indemnifier do not require that ambiguity be detected where the natural and ordinary meaning of the language, taken in its contractual context, requires no such conclusion.[47] Absent statutory authority, a court has no mandate to rewrite a provision to avoid what it retrospectively perceives as commercial unfairness or lack of balance.[48]
  3. [68]
    The clause should be construed in its contractual context which allocates risks of different kinds between the parties, and, relevantly in this case, provides that the operator shall be under the control of the Hirer. Effect should be given to the ordinary meaning of the language used (absent use of technical expressions or terms of art) so as to provide certainty as to where responsibility may lie, against which insurance may be obtained.[49] The fact that the contract requires a party to take out insurance against the indemnified liability may be taken into account in concluding that the indemnity applies to that liability, whether or not insurance is in fact taken out.[50] The absence of a provision for insurance against the liability may also be taken into account.[51] However, the fact that the indemnifier is not required by the contract to take out insurance, and chooses not to take out insurance should not affect the construction of an indemnity that unambiguously allocates responsibility for the liability against the indemnifier.
  4. [69]
    The outcomes of other cases involving different contractual arrangements and different clauses do not dictate the outcome of this case. However, the principles of construction established in those cases should be followed.[52]
  5. [70]
    One line of authority construes contracts of the present kind on the assumption that it is inherently improbable that a party would contract to absolve the other party against claims based on the other party’s own negligence.[53] The competing view is that at least a principal purpose for obtaining such an indemnity is to protect a party against liability for its own fault.[54]
  6. [71]
    The interpretation of phrases such as ‘arising out of’ and ‘in connection with’ in different contexts, including compulsory third party insurance, does not determine its meaning in the present context. However, guidance can be derived from authorities in which such phrases are used in comparable cases involving indemnity clauses.

The expression ‘arising out of’

  1. [72]
    The words ‘arising out of’ are wide. The relevant relationship should not be remote, but one of substance albeit less than required by words such as ‘caused by’ or ‘as a result of’.[55] The phrase connotes a weak causal relationship.[56] However, more is required than the mere existence of connecting links.[57] The words require the existence of a causal or consequential relationship between, in this case, the use of the plant and the injury.[58]”
  1. [107]
    Applying those principles here, and the meaning given to “arising out of” in similar contractual contexts in the cases discussed above, in my view the trial judge’s conclusion that clause 1.39.1 was engaged, such that Vatsonic was required to indemnify the Council against Mr Bilson’s claim, was correct.  The natural and ordinary meaning of the language used in clause 1.39.1 does not reveal any ambiguity, such as to warrant any reading down in favour of Vatsonic.  By that clause, Vatsonic agreed to indemnify the Council against “all claims for injury loss or damage suffered by any person … arising out of [Vatsonic’s] performance of the Contract” – that is, the contract to provide wet hire of a vac truck.  On any view, even the narrow one adopted by the majority in Erect Safe Scaffolding, Mr Bilson’s claim arose out of Vatsonic’s performance of the contract.  That is the only reason Mr Bilson was at the site.  Vatsonic’s performance of the contract did not simply provide the opportunity for the Council’s breach of duty.  There was a causal or consequential relationship between Vatsonic’s failure to provide a safe system of work, inherent in its performance of the contract, and the Council’s negligence, comprised of its workers’ failure to follow Mr Bilson’s informal system.
  2. [108]
    Given the context, of a contract involving the supply (wet hire) by Vatsonic of a specialised truck and operator, at sites otherwise controlled or managed by the Council; which would be one of many (as is apparent from the introductory clauses to part 2 of the contract), the operation of clause 1.39.1 in circumstances such as arose in this case makes commercial sense.  The broad terms of the obligation to insure (clause 1.41) supports this conclusion, notwithstanding that it does not include an express requirement for any insurance to also name the Council.

Some grounds of Vatsonic’s appeal that do not need to be addressed

  1. [109]
    In light of the conclusions reached in relation to earlier grounds of Vatsonic’s appeal, and the conclusion reached in relation to s 236B (below), it is unnecessary to address grounds 5, 6 and 7 in any detail.
  2. [110]
    Ground 5 contends the trial judge erred in finding that Vatsonic breached clause 1.7.2 of the contract “because there was a safe system of work established”; and/or in finding that such breach was causative of any liability on the part of the Council to Mr Bilson in damages “because the liability of the Council was caused by its own negligence or that of its employees”.  The references to breach of clause 1.7.2 are a distraction and seem to have resulted in confusion, in so far as the application of s 236B is concerned,[59] which is discussed below.  This proceeding was not concerned with a claim for damages by the Council against Vatsonic for breach of contract; the reference to breach of contract was put against Vatsonic as an alternative basis for indemnity.[60]  This addresses, and removes the need to say anything more about, ground 6.
  3. [111]
    Ground 7 challenges the trial judge’s finding in relation to clause 2.13(1)(g) of the contract.  As to this, I observe that the trial judge made only a passing reference to this clause in paragraphs [119] and [132] of the Reasons, in terms of an alternative view, should his conclusion in relation to the indemnity clause be incorrect; and went on to say it was not necessary to deal with that further.  As I find his Honour’s conclusion on the construction of the indemnity clause was correct, it is unnecessary to address this.
  4. [112]
    Having said that, I consider his Honour was incorrect in his construction of clause 2.13(1)(g).  Properly construed, that clause does not deem the Council’s workers to be the employees of Vatsonic; it merely ensures that despite the fact that the “equipment” wet hired under the contract (here, the vac truck and operator, Mr Bilson) will be operated at sites controlled by the Council, and “under the direction of” the Council, the operator(s) supplied with the “equipment” is the employee or agent of Vatsonic, not the Council.  That is apparent from the definitions in clause 1.1 of “equipment” (as the relevant thing (for example, truck) hired under the contract for the purposes of undertaking “work under the contract”) and “wet hire” (as meaning equipment hired with all required Operators/Drivers).  The Council workers were not “Operators” of the “Equipment” hired under the contract with Vatsonic.  The operator was Mr Bilson.  Again, all of this was an unnecessary distraction, which, for the reasons which follow, lead to error in the proper construction and application of s 236B.

Did the trial judge err in construing s 236B of the Workers’ Compensation and Rehabilitation Act 2003 as not voiding the indemnity?

  1. [113]
    In so far as Vatsonic’s appeal is concerned, that leaves ground 8, which challenges the trial judge’s conclusion in relation to the effect of s 236B of the Workers’ Compensation and Rehabilitation Act 2003.
  2. [114]
    That section provides:
  1. “236B
    Liability of contributors
  1. This section applies to an agreement between an employer and another person under which the employer indemnifies the other person for any legal liability of the person to pay damages for injury sustained by a worker.
  1. The agreement does not prevent the insurer from adding the other person as a contributor under section 278A in relation to the employer’s liability or the insurer’s liability for the worker’s injury.
  1. The agreement is void to the extent it provides for the employer, or has the effect of requiring the employer, to indemnify the other person for any contribution claim[61] made by the insurer against the other person.
  1. In this section—

damages includes damages under a legal liability existing independently of this Act, whether or not within the meaning of section 10.”

  1. [115]
    It is also relevant to consider s 6(c) of the Law Reform Act, which provides:

“Where damage is suffered by any person as a result of a tort (whether a crime or not) the following apply –

  1. any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.”[62]
  1. [116]
    The trial judge found that s 236B was “not applicable in this case” because his Honour found, on the basis of submissions by the Council:
    1. “this is not a matter where [the Council] is seeking to rely upon the indemnity to defeat a claim by WorkCover in relation to a contribution claim brought against it” – because Mr Bilson had claimed directly against the Council, the Council sought to rely on the terms of the contract between it and Vatsonic, and “[i]t is not a case where WorkCover has made a contribution claim against” the Council (at [134][63]); and
    2. although “not absolutely necessary” (I infer, to the conclusion that s 236B did not apply) “it is clear that the indemnity claimed arises from [Vatsonic’s] failure to meet its contractual obligations to perform works in a diligent and careful manner, to manage and protect its employees and to ensure a safe system of work for those employees, including workers, deemed under the Agreement to be employees” (at [135]).
  2. [117]
    In my respectful view, each of the elements of this conclusion are incorrect and consequently lead to error in the application of s 236B:
    1. WorkCover, on its own behalf and on behalf of Vatsonic, did claim indemnity or contribution from the Council, by notice given under s 278A of the Workers’ Compensation and Rehabilitation Act 2003 on 23 October 2018 (that is, as part of the pre-court procedure).[64]
    2. Following commencement of the court proceedings, Vatsonic claimed contribution from the Council under s 6 of the Law Reform Act “in respect of any liability in damages found for [Mr Bilson] against [Vatsonic]”, relying upon Mr Bilson’s allegations against the Council in that regard.  The effect of s 300 of the Workers’ Compensation and Rehabilitation Act 2003 is that this claim for contribution is also, effectively, made by WorkCover.[65]  Section 300 relevantly provides:
  1. “300
    Carriage of proceedings
  1. If a proceeding is brought for damages, the proceeding must be brought against the employer of the injured or deceased worker and not against WorkCover.

…

  1. WorkCover is entitled to conduct for an employer, other than an employer who is a self-insurer, all proceedings taken to enforce the clam or to settle any matter about the claim.”[66]
  1. By its third party notice, the Council claimed against Vatsonic:
    1. an indemnity pursuant to the agreement between the Council and Vatsonic (that is, under clause 1.39.1);
    2. alternatively, damages for breach of the agreement in the form of an indemnity for Mr Bilson’s damages;
    3. alternatively, contribution pursuant to s 6(c) of the Law Reform Act.
  2. The trial judge concluded that the Council was entitled to an indemnity from Vatsonic under clause 1.39.1 of the contract – on the basis that Mr Bilson’s claim for injury loss or damage arose out of Vatsonic’s performance of the contract (Reasons at [118]).  As a consequence of that conclusion, his Honour, properly, found it unnecessary to address the alternative claim made by the Council against Vatsonic, for damages for breach of contract (Reasons at [119] and, obliquely, [135]).  Although, inconsistently, at [136] of the Reasons, his Honour said that the “damages sought by [the Council] to be indemnified for, arise from the breach of contract…”.  That is not correct.  The damages for which the Council sought to be indemnified under clause 1.39.1 of the agreement were the damages payable to Mr Bilson, consequent upon his claim against the Council for “injury loss or damage” being successful.
  1. [118]
    In light of the conclusion reached in relation to the indemnity under clause 1.39.1 of the contract, s 236B(1) is satisfied, such that s 236B applies to the contract between Vatsonic and the Council.  That contract is an “agreement between an employer [Vatsonic] and another person [the Council] under which the employer [Vatsonic] indemnifies the other person [the Council] for any legal liability of the person [the Council] to pay damages for injury sustained by a worker.”  That is the indemnity provided for by clause 1.39.1 (“all claims for injury loss or damage suffered by any person … arising out of your performance of the Contract…”).
  2. [119]
    Section 236B(2) then provides that the agreement does not prevent the insurer (ie WorkCover) from adding the other person (the Council) as a contributor under s 278A in relation to the employer’s liability or the insurer’s liability for the worker’s injury.  This provision overcomes the prohibition that would otherwise arise from s 6(c) of the Law Reform Act.  As just mentioned, WorkCover did add the Council as a contributor under s 278A, and made a claim for contribution under s 6 of the Law Reform Act.
  3. [120]
    That leads to s 236B(3) which, for convenience, is set out again here:

“The agreement is void to the extent it provides for the employer [Vatsonic], or has the effect of requiring the employer [Vatsonic], to indemnify the other person [the Council] for any contribution claim made by the insurer against the other person.”

  1. [121]
    The question is what does this provision mean?  The approach to interpretation of a statute is well-settled.  It involves construing the words of the provision, having regard to the context for and purpose of the provision – which includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole and, if relevant, the “mischief” which the statute was intended to remedy.[67]
  2. [122]
    Section 236B was enacted as part of the Workers’ Compensation and Rehabilitation Act in 2016.[68]  As explained in the notes accompanying the relevant Bill (at page 19):

“Clause 31 inserts new section 236B dealing with liability of contributors in relation to damages. The amendment ensures that an agreement between an employer and a third party, under which the employer indemnifies the third party as indicated, does not prevent the insurer from adding the third party as a contributor. Further it provides that the agreement is void and that the third party cannot recover the amount of an award or settlement, made against them from the employer.

The effect is to restore the common law principle that an insurer will not be liable to indemnify an employer for a liability to pay damages incurred by a third party contributor under a contractual arrangement. This principle was overturned by the Queensland Supreme Court’s decision in Byrne v People Resourcing (Qld) Pty Ltd & Anor [2014] QSC 269.

It also furthers the objects of the Act by encouraging improved health and safety performance by employers, ensures reasonable cost levels for employers and provides for the protection of employers’ interests in relation to claims for damages for workers’ injuries.”[69]

  1. [123]
    The issue considered in Byrne v People Resourcing (Qld) Pty Ltd [2014] QSC 269 was the extent to which WorkCover was obliged to indemnify an employer for damages it was legally liable to pay in respect of injury to a worker.  The injured worker’s claim was settled prior to trial.  The employer and a co-tortfeasor each paid 50% of the $450,000 damages agreed to be paid to the worker.  The employer was, in turn, obliged to repay $225,000 to the co-tortfeasor, under a contractual indemnity.  The employer argued that WorkCover should indemnify it for the whole amount, not only the $225,000 representing the employer’s contribution.  WorkCover denied liability to indemnify the employer beyond its agreed degree of contributory negligence (50%), on the basis that the balance represented an outstanding (contractual) liability to the co-tortfeasor, rather than a liability to the worker.  There were decisions of the New South Wales Court of Appeal which supported WorkCover’s argument;[70] and a decision of the High Court which was considered to support the employer’s argument.[71]  The Court (Carmody CJ) applied the High Court decision to hold that, for the purposes of s 8 of the Workers’ Compensation and Rehabilitation Act 2003,[72] the employer had “become legally liable” to pay damages of $450,000 “for injury sustained by a worker” employed by them and, consequently, WorkCover was obliged to indemnify the employer for the whole amount.
  2. [124]
    As is apparent from the explanatory notes to the Bill, by which s 236B ultimately came to be introduced, the legislature expressly sought to reverse the effect of Byrne.  This was considered to have a significant financial benefit for WorkCover.  According to the explanatory notes (at page 4), the “amendment to reverse the effect of the Byrne decision and prohibit the contractual transfer of liability from principals to contractors will save WorkCover Queensland an estimated $40 million per annum”.
  3. [125]
    To put this issue into a broader context, the following provisions are relevant.  Section 48 of the Workers’ Compensation and Rehabilitation Act obliges every employer, “for each worker employed by the employer, [to] insure and remain insured, that is, be covered to the extent of accident insurance, against injury sustained by the worker for – (a) the employer’s legal liability for compensation; and (b) the employer’s legal liability for damages”.  “Accident insurance” is defined in s 8 as “insurance by which an employer is indemnified against all amounts for which the employer may become legally liable, for injury sustained by a worker employed by the employer for – (a) compensation; and (b) damages”.  “Compensation” is defined in s 9, essentially as payments for a worker’s injury payable under the Act by an insurer.  “Damages” is defined in s 10 as follows:
  1. “10
    Meaning of damages
  1. ‘Damages’ is damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay damages to –
  1. the worker; or
  1. if the injury results in the worker’s death – a dependant of the deceased worker.
  1. A reference in subsection (1) to the liability of an employer does not include a liability against which the employer is required to provide under –
  1. another Act; or
  1. a law of another State, the Commonwealth or of another country.
  1. Also, a reference in subsection (1) to the liability of an employer does not include a liability to pay damages for loss of consortium resulting from injury sustained by a worker.”
  1. [126]
    There was another amendment proposed by the Bill, to amend the definition of “damages” in s 10 of the Workers’ Compensation and Rehabilitation Act to expressly exclude “a liability to pay damages, for injury sustained by a worker, arising from an indemnity granted by the employer to another person for the other person’s legal liability to pay damages to the worker for the injury”.[73]  That did not find its way into the Act.[74]
  2. [127]
    Although the expressed intent of s 236B was to reverse the effect of Byrne, having regard to the words used in s 236B(3) in particular, it goes further than that.  Section 236B(3) does not [only] operate to clarify that WorkCover is not obliged to indemnify an insured employer for the amount of an injured worker’s damages that the employer is obliged to pay to another person (a co-tortfeasor) under an indemnity clause contained in an agreement between the employer and the other person.  Section 236B(3) provides that the agreement is void to the extent it provides for the employer (or has the effect of requiring the employer) to indemnify the other person for any contribution claim made by the insurer against the other person.  The plain meaning of those words is that the other person (here, the Council) is also prevented from enforcing the indemnity clause under the agreement.
  3. [128]
    That this was the statutory intent is reinforced by other statements in the explanatory notes, for example the reference to the effect of the amendment being to “prohibit  the contractual transfer of liability from principals to contractors”.  It is also consistent with the additional expressed purpose of the amendments, referred to in the final paragraph of the explanatory notes set out in paragraph [122] above (referring to furthering the objects of the Act by, among other things, “ensur[ing] reasonable cost levels for employers and provid[ing] for the protection of employers’ interests in relation to claims for damages for workers’ injuries”).
  4. [129]
    For the reasons already set out, the trial judge erred in finding that s 236B did not apply in this case.  It does apply, and the effect of it is that clause 1.39.1 of the contract between Vatsonic and the Council is void to the extent it provides for Vatsonic to indemnify the Council for the contribution claim made by WorkCover (for Vatsonic) against the Council.
  5. [130]
    Mr Bilson is entitled to judgment against each of Vatsonic and the Council.  Orders ought also be made reflecting the conclusions as to contribution between them.  No further order should be made for the benefit of the Council, giving effect to clause 1.39.1 of the contract, having regard to the effect of s 236B(3).

On what basis should general damages be assessed against the Council?

  1. [131]
    The last issue to be addressed arises from the need to assess damages against the Council.
  2. [132]
    As noted at the outset, all parties are agreed that the trial judge ought to have assessed damages against the Council and that Mr Bilson was entitled to judgment in his favour against the Council as well as Vatsonic.  The damages to be assessed against the Council will not necessarily be the same as the damages assessed against Vatsonic – given that the claim against the Council is governed by the common law, whereas the claim against Vatsonic is governed by the Workers’ Compensation and Rehabilitation Act.  There is no challenge to the trial judge’s assessment of damages against Vatsonic.
  3. [133]
    Fortunately, given the vast number of issues otherwise agitated on these appeals (and at the trial) there is agreement on all elements of the damages to be assessed against the Council, save for the amount of general damages.[75]
  4. [134]
    All parties were agreed it was appropriate for this Court to assess the damages as against the Council, rather than remit the matter to the trial judge.  Having regard to the narrow scope of the issue left to be determined, in relation to general damages, and in the interests of time and cost efficiency, this is appropriate.
  5. [135]
    For Mr Bilson, it is submitted the amount of $100,000 ought to be awarded for general damages, having regard to the nature of the injury to his eye, his loss of vision (a loss of between 95% and 99% of visual acuity in his left eye), possible future complications and the effect of the injury on Mr Bilson and his family relationships.  That figure is informed by some common law comparative cases,[76] although noting that they are somewhat dated, the amount of $100,000 is claimed “having regard to inflation since the comparators, the age of [Mr Bilson], his life expectancy, his ongoing difficulties personally, the effect upon his family relationships but having regard also to his adaptation to the injury”.
  6. [136]
    The Council submits that an amount for general damages of $50,000 would be appropriate, having regard to previous decisions in relation to serious eye injuries.[77]
  7. [137]
    Vatsonic also addressed this issue, contending this was justified given its potential interest in the award of damages against the Council as a consequence of the contractual indemnity issue.  Vatsonic submits the correct award for general damages ought to be equivalent to the amount of general damages awarded as if assessed pursuant to schedules 3 and 4 of the Civil Liability Regulations 2014 and/or schedules 8 and 9 of the Workers’ Compensation and Rehabilitation Regulation 2014.  The amount for general damages assessed against Vatsonic, under the 2014 Regulation, was $63,950.[78]  Vatsonic submits an award in the vicinity of $60,000 to $65,000 is appropriate as against the Council.
  8. [138]
    Vatsonic refers to the following statement of principle, from the High Court’s decision in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125:

“The principle to be followed in assessing damages is, in our opinion, not in doubt.  It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused.  It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen.  What was sought to be done in this case by the appellant’s counsel, namely, to derive a norm or standard from a group of judgments of this Court reviewing awards of damages on appeal is erroneous.  The same would be true if the same course were sought to be pursued in relation to awards of a Supreme Court or of a County or District Court.  The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations.  It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation.  But this general awareness is quite a different thing from what we were invited by Planet’s counsel to act upon in this case.  The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.”[79]

  1. [139]
    Vatsonic submits that, having been in place for about 22 years, the ISV (injury scale value) ratings that appear in the Civil Liability Regulation 2003 and (more recently) the Workers’ Compensation and Rehabilitation Regulation 2014 “are the real life paradigm of assessing ‘fair and reasonable’ compensation” whilst giving weight to what the Court in Planet Fisheries referred to as “current general ideas of fairness and moderation”.
  2. [140]
    This point was raised for the first time in response to Mr Bilson’s appeal.  The point was not pleaded, or argued before the trial judge.[80]  For that reason, Mr Bilson submits Vatsonic’s arguments about the approach to assessment of general damages against the Council ought not be entertained.[81]  Mr Bilson submits, in any event, that Vatsonic’s argument should be rejected, there being no legal basis for damages at common law to be awarded as if assessed under the relevant regulations.
  3. [141]
    It is undesirable, to say the least, for a point such as this to be raised for the first time on an appeal.
  4. [142]
    However, given that the point raises a question of law, the answer to which would not be affected by evidentiary matters, and since in my view there is a clear answer to the question, I propose to deal with it.  The clear answer is that, despite having had the opportunity to do so, and despite a pattern in this particular area of the law of legislative responses to court decisions,[82] the legislature has not seen fit to regulate the assessment of damages for claims which are otherwise governed by the common law.  There have been a number of cases in which damages have been assessed both at common law (against one party) and in accordance with the ISV system (against another).[83]  Yet, as Mr Bilson submits, no steps have been taken to amend the legislation to “deprive access to damages unregulated by statute” in circumstances where, as in the case of Mr Bilson’s claim against the Council, s 5(1)(b) operates to exclude the operation of statute.  I can see no justification, in the broad statement of principle in Planet Fisheries, for applying the statutory ISV regime to an assessment of damages at common law.  If that is to occur, it ought to be done by legislative amendment.
  5. [143]
    The findings of the trial judge in relation to the injury to Mr Bilson, and the effect of it on him, which inform the assessment of general damages are as follows:
    1. Mr Bilson suffered a “rupture of his left eye, traumatic loss of the iris and traumatic loss of the lens and vitreous haemorrhage”.  As a consequence, Mr Bilson has an impairment of visual acuity in his left eye of between 95% and 99%; with an “overall visual system impairment” of about 24% to 25% and a whole person impairment of 23% to 24%.[84]
    2. There is a risk he will develop “sympathetic ophthalmia”, which may threaten the sight of his right eye, although the risk is low.[85]
    3. Mr Bilson “to all intents and purposes, has no vision in his left eye, except as he described it, ‘able to see a faint shadow if there is a bright light’.”[86]
    4. Mr Bilson “also described suffering pain, burning and throbbing in the left eye, leading to headaches which he treats with over the counter medication.”[87]  As to this, whilst there is no possibility of restoring sight in the left eye, Mr Bilson’s treating eye specialist identified a number of potential future surgical treatments for “palliation of pain”.[88]
    5. Mr Bilson was found to be “an impressive man, stoic in his character, such that he has gotten on with life and does not report interference with his family and social life.  He has also gotten on with life, as he had to, in respect of employment”.  However, the trial judge accepted the injury had “obvious effects upon his future expectations”, which “have been significantly curtailed as a result of his current situation”.[89]  The trial judge did not accept Mr Bilson had “lost his trade”, as a vac truck operator, because he had been able to continue to work in that role, but did accept he had lost his opportunity for more lucrative employment (including in the mines).[90]
    6. Mr Bilson “has effectively lost the complete sight in his left eye.  He has compensated as best he can, but, difficulties abound and future risks and consequences are apparent.  There are also clearly identified psychological consequences as are shown in the unchallenged evidence of [Mr Bilson] and his wife as to the changes in [Mr Bilson’s] demeanour and family relationships.”[91]
    7. Mr Bilson was 47 at the time of the decision below.
  6. [144]
    The comparative decisions referred to by counsel for Mr Bilson and the Council are of limited assistance, a consistent difficulty in cases of this kind.[92]  The plaintiff in the first of the cases referred to by Mr Bilson, Laing v Fagan [1991] QSCFC 38, was a young child, not quite six, when he was injured resulting in the loss of vision in one eye.  The difficulties associated with that, including the increased risk of total blindness as a consequence of injury to the other eye, were noted.  On appeal, the Court described an award of $60,000 for general damages as high, but not beyond the appropriate range, noting that the plaintiff had “lost a substantial amount of his capacity to enjoy his boyhood, youth and early adulthood.  He [was] left with a moderate cosmetic blemish which he must grow up [with].  He has a significant incapacity which he must carry with him for the whole of his life, and many areas of employment and recreation are closed to him.”
  7. [145]
    In the second case, Lambert v Matilda Pet Foods [1999] QSC 136, the plaintiff was a man of 29 who suffered a serious injury to his eye, inflicted by a knife which penetrated into the frontal lobe, in the course of his work in a pet food processing plant.  He was left with a 70% loss of function of the eye, and experienced continuing pain.  He developed epileptic seizures found to be caused by the injury to the frontal lobe, as well as “psychiatric consequences” which were an exacerbation of a pre-existing personality disorder.  As a consequence of his psychiatric condition, he was found not to be “commercially employable”, although it was observed he was “less than an attractive employee prior to the accident” due to his pre-existing issues.  General damages were assessed in the amount of $70,000.  This decision could be said to support an award of at least $70.000 for general damages for Mr Bilson, given the higher percentage loss of vision he has suffered.  Comparison is difficult, however, given the vastly different circumstances of Mr Bilson and the plaintiff in Lambert.
  8. [146]
    In terms of the cases referred to by the Council, the plaintiff in Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239 was 46 when he suffered an injury to his left eye while riding as a passenger on a jet ski.  As the jet ski went to turn a corner, the plaintiff and his son, who was driving, were flung off and into the water.  The plaintiff’s face rammed into the back of his son’s head, smashing his goggles and causing the injury to his eye.  The plaintiff had to have surgery to repair the damage to his eye (fracture of three walls of his left orbit).  He experienced “double vision” and consequent fatigue.  The plaintiff was a solicitor who claimed that he was unable to work to the extent he would have because of this fatigue due to double vision.  He was assessed as having a 12% whole person impairment as a result of the fracture to his eye socket.  He did not, however, suffer any loss of vision.  The plaintiff in Rogers was awarded $60,000 for general damages, the Court noting that:

“Mr Rogers’ enjoyment of his professional life has been seriously interfered with as a result of his injury. Other conditions such as the migraines were and are a constant problem which will not sound in damages. The loss of the zest and passion for his work which is attributable to his injury is deserving of recompense in some significant way. There was no evidence of note that his private pleasures have been diminished although his double vision problem will necessarily impact on all that he does. Mr Myers contends for $70,000 and Mr McMeekin for $50,000. There may be some future development of the prism technology which will give better relief than is able at present to reduce the symptoms of double vision, but on the whole, Mr Rogers has a permanent disability and, accordingly, for the loss of enjoyment of life, past and future, I would compensate him at $60,000.”

  1. [147]
    This decision supports a higher award to Mr Bilson for general damages, given that the injury to his eye effectively resulted in complete loss of vision.
  2. [148]
    The other decision referred to by the Council is Brophy v Dawson [2004] QSC 372.  The plaintiff in this case suffered “penetrating wounds to both his eyes”, during a fight with another man, who “thrust a beer glass into the plaintiff’s face”.  His claim against the operator of the hotel where this happened was dismissed, since no breach of duty was established.  He obtained default judgment against the person who assaulted him, with damages to be assessed.  He was 32 when injured and 39 at the time of the assessment.  As a result of the injury, his left eye was enucleated (removed) and replaced with a prosthesis.  His right eye was saved and, following treatment he had achieved “6/6 visual acuity in that eye”.  He continued “to have the difficulties associated with having only one functioning eye” and, like Mr Bilson, was at risk of developing the “uncommon condition” of sympathetic ophthalmia.  He also suffered some minor scarring and a psychiatric injury (severe depressive reaction, from which he had made a good recovery).  The plaintiff was said to be a very active man who had previously pursued a number of hobbies and sports, many of which were “now denied him and in his pursuit of others he is much more limited than previously”.  He was awarded $70,000 by way of general damages.
  3. [149]
    Keeping in mind the admonition by the High Court in Planet Fisheries Pty Ltd v La Rosa, as to the limited use to be made of assessments in other cases, but in an endeavour to arrive at a figure which represents fair and reasonable compensation for the injury suffered by Mr Bilson, I would assess general damages for the pain, suffering and loss of amenity he has experienced at $80,000.
  4. [150]
    Factoring that figure into the schedule of damages which is otherwise agreed, an updated version of which is set out in a schedule to these reasons, results in an award of damages to Mr Bilson, as assessed against the Council, of $590,801.57.

Orders

  1. [151]
    I would make the following orders:
  1. The appeal in proceeding CA 5634 of 2024 (Mr Bilson’s appeal) is allowed.
  1. The appeal in proceeding CA 5563 of 2024 (Vatsonic Communications Pty Ltd and WorkCover’s appeal) is allowed, in so far as grounds 8 and 9 are concerned, but is otherwise dismissed.
  1. Set aside the orders made at first instance and substitute the following orders.
  1. There be judgment for the appellant (Mr Bilson) against the first respondent (Vatsonic Communications Pty Ltd) in the sum of $359,689.84.[93]
  1. There be judgment for the appellant (Mr Bilson) against the second respondent (Townsville City Council) in the sum of $590,801.57.
  1. The first respondent (Vatsonic Communications Pty Ltd) is entitled to recover 30% of the damages assessed against Vatsonic from the second respondent (Townsville City Council) pursuant to s 6(c) of the Law Reform Act 1995.
  1. The second respondent (Townsville City Council) is entitled to recover 70% of the damages assessed against the Council from the first respondent (Vatsonic Communications Pty Ltd) pursuant to s 6(c) of the Law Reform Act 1995.
  1. [152]
    The parties ought to be given the opportunity to be heard in relation to costs.  I would therefore also direct that:
  1. The parties file and serve on one another brief submissions (of no more than 3 pages), together with any necessary affidavit(s), in relation to the costs orders they, respectively, propose, within 7 days.
  1. The parties file any submissions in reply to the primary costs submissions filed (of no more than 2 pages), together with any necessary reply affidavit(s), within 14 days.
  1. [153]
    BODDICE JA:  I agree with the Chief Justice.
  2. [154]
    HENRY J:  I agree with the Chief Justice.

SCHEDULE OF DAMAGES ASSESSED AGAINST THE COUNCIL

Head of damage

Amount

General Damages

(at common law)

$80,000.00

Past loss of earning capacity/past economic loss

(as per assessment of the trial judge)

$76,208.02

Past loss of superannuation

(as per assessment of the trial judge)

$7,620.80

Future loss of earning capacity

(as per assessment of the trial judge)

$250,000.00

Future loss of superannuation

(as per assessment of the trial judge)

$29,425.00

Past special damages

(as per assessment of the trial judge)

$82,783.23

Future special damages

(as per assessment of the trial judge)

$19,317.00

Fox v Wood

(as per assessment of the trial judge)

$3,910.00

Past care and assistance damages

(per agreement of the parties)

$13,365.00

Future care and assistance damages

(per agreement of the parties)

$5,000.00

Interest on past economic loss

5% x ([$76,208.02 + $7,620.80] - $16,253 nett

WorkCover payments) x 6.6 years= $22,300

$22,300.00

Interest on past special damages

5% x $2,644 (not covered by WorkCover and Medicare) x

6.6 years = $872.52

$872.52

Total damages and interest

$590,801.57

Footnotes

[1]By virtue of s 5(1)(b) of the Civil Liability Act 2003 (Qld), which excludes the operation of that Act in relation to deciding liability or awards of damages for personal injury if the harm resulting from the breach of duty is or includes an injury for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003.

[2]Bilson v Vatsonic Communications Pty Ltd [2024] QDC 42 (Reasons) at [84], [90] and [92].

[3]Reasons at [93] and [108].

[4]Reasons at [118].

[5]Reasons at [134].

[6]Reasons at [137].

[7]Appeal No 5634 of 2024.

[8]Speirs v Caledonian Collieries Ltd (1956) 57 SR (NSW) 483 at 503, 512; Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at [55]; Nominal Defendant v Smith (2015) 73 MVR 257 at [15].

[9]Appeal No 5563 of 2024.  At the start of the trial, Mr Diehm KC and Ms Rothery, counsel for Vatsonic, announced their appearance “on behalf of the first defendant [Vatsonic], on instructions from WorkCover Queensland exercising its entitlement to defend the proceedings brought against the employer pursuant to section 300 of the Workers’ Compensation and Rehabilitation Act”, in relation to the claim by Mr Bilson against Vatsonic and in relation to the contribution claim as between Vatsonic and the Council.  Vatsonic was also separately represented by Mr Flores, in relation to the defence of the third party claim brought by the Council against Vatsonic, relying upon the contract between them.  Mr Flores appears to have taken no role in the trial, other than to make submissions at the end of it.  In the appeal proceedings, Vatsonic was represented only by Mr Diehm KC and Ms Rothery, again on the instructions of WorkCover.

[10]In Mr Bilson’s appeal, Appeal No 5634 of 2024.

[11]References below to paragraph numbers are to paragraphs in the Reasons.

[12]Emphasis in the original.

[13]Mr Greggery was counsel for Mr Bilson.

[14]By reference to Warren v Coombes (1979) 142 CLR 531 at 551, Allesch v Maunz (2000) 203 CLR 172 at 180-181 [23], Fox v Percy (2003) 214 CLR 118 at 127 [26]-[27], Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679 at [43] and Lee v Lee (2019) 266 CLR 129 at [55].

[15]Underlining added.

[16]Paragraph 7 of the Council’s defence.

[17]See the Council’s submissions at [59]-[63].

[18]Reasons at [20].

[19]Emphasis added.

[20]Council’s submissions at [71]-[76].

[21]See Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85].

[22]Underlining added.

[23]For ease of reference, I will refer to Vatsonic only.

[24]Vatsonic’s submissions at [21]-[24].

[25]Reasons at [47] (adopting Vatsonic’s summary of Mr Contoyannis’ evidence); Mr Contoyannis’ evidence at the trial (at AB 1123-1124).

[26]Mr Bilson’s submissions in relation to Vatsonic’s appeal at [36].

[27]Paragraph 27 of Vatsonic’s submissions.

[28]Underlining added.

[29]Underlining added.

[30]Reasons at [105].  See also Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 at [21], referred to by the trial judge at [106] of the Reasons.

[31]Cf James Thane Pty Ltd v Conrad International Hotels Corporation [1999] QCA 516 at [44] per Williams J, referred to by the trial judge at [103] and [107] of the Reasons.

[32]Reasons at [108].

[33]The term “Wet Hire” is defined in clause 1.1 (part 1) of the agreement to mean “Equipment hired with all required Operators/Drivers”.

[34]Underlining added.

[35]Reasons at [114]-[117].

[36]Vatsonic and WorkCover’s submissions at [34]-[35].

[37]Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1 at [2], [18] and [132].

[38]Underlining added.

[39]See also Davis v Commissioner for Main Roads (1968) 117 CLR 529 at 537 per Menzies J.

[40]Cited with approval in CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121 at [206] per McColl, Macfarlan and Simpson JJA.

[41]Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500 at 505.  See also CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121 at [206] and Protheroe v Protheroe [2023] NSWCA 328 at [49].

[42]See also per Wheeler J at [131].  Underlining added.

[43]See, for example, CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121 at [216]; NTC Contracting Pty Ltd v Morton [2022] WASCA 160 at [64] and [82].

[44]References referred to appear in the original.

[45]Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 at [17]-[23].

[46]Bofinger v Kingsway Group Ltd (2009) 239 CLR 269 at 292 [53].

[47]Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1 at 21 [87] (per Basten JA).

[48]Ibid at [88].

[49]Ibid.

[50]Ibid.

[51]Ellington v Heinrich Constructions Pty Ltd (2005) 13 ANZ Ins Cases 61-646 at [23].

[52]Erect Safe Scaffolding (Australia) Pty Ltd v Sutton at [89] (per Basten JA), [166] (per McClellan CJ at CL).

[53]Davis v Commissioner for Main Roads (1968) 117 CLR 529 at 534 per Kitto J (Windeyer J agreeing); Westina Corporation Pty Ltd v BGC Contracting Pty Ltd (2009) 41 WAR 263 at [64]-[65].

[54]Davis v Commissioner for Main Roads at 537 per Menzies J (Barwick CJ and McTiernan J agreeing); Erect Safe Scaffolding (Australia) Pty Ltd v Sutton per Basten JA.

[55]Erect Safe Scaffolding (Australia) Pty Ltd v Sutton at [11].

[56]Ibid at [97].

[57]F & D Normoyle Pty Ltd v Transfield Pty Ltd (2005) 63 NSWLR 502 at 515 [90].

[58]Westina Corporation Pty Ltd v BGC Contracting Pty Ltd at [61].

[59]Reasons at [127].

[60]See the Council’s third party statement of claim against Vatsonic, at paragraph 9, “if the [Council] is found liable for [Mr Bilson’s] damages as alleged, or at all, the [Council] says that [Vatsonic] was responsible for the damage claimed by [Mr Bilson], as the liability [that is, the liability to Mr Bilson] was caused solely by the negligence and/or breach of contract of [Vatsonic]…”.

[61]The term “contribution claim” is defined in s 233 to mean “a claim for contribution or indemnity made against another person by an insurer who adds the person as a contributor under section 278A”.

[62]Underlining added.

[63]It appears this was based on a submission by the Council – see Reasons at [126].

[64]Exhibit 28 in the trial (affidavit of Ms Bainbridge-Brown, annexure EBB-01).

[65]See also Vatsonic and WorkCover’s oral submissions below (at AB 1264).

[66]As noted above, at the start of the trial, Mr Diehm KC and Ms Rothery, counsel for Vatsonic, announced their appearance “on behalf of the first defendant [Vatsonic], on instructions from WorkCover Queensland exercising its entitlement to defend the proceedings brought against the employer pursuant to section 300 of the Workers Compensation and Rehabilitation Act”, in relation to the claim by Mr Bilson against Vatsonic and in relation to the contribution claim as between Vatsonic and the Council.

[67]R v A2 (2019) 269 CLR 507 at [32]-[37]; see also s 14A(1) of the Acts Interpretation Act 1954 (Qld).

[68]Workers’ Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Act 2016 (Qld).

[69]Underlining added.

[70]Nigel Watts Fashion Agencies Pty Ltd v GIO General Insurance Ltd (1995) 8 ANZ Ins Cases 61-235, Multiplex Constructions Pty Ltd v Irving [2004] NSWCA 346 and Gordian Runoff Ltd v Heyday Group Pty Ltd [2005] NSWCA 29.

[71]State Government Insurance Office (Qld) v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228.

[72]The wording of s 8 is set out in paragraph [125] below.

[73]See clause 5 of the Workers’ Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Bill 2016.

[74]Some care is therefore required, when having regard to the explanatory notes to the Bill (substantial portions of which are set out in the Reasons at [129]), because some of the statements in the notes clearly relate to the proposed amendment to s 10, which did not eventuate.  For completeness, I note that there is no clear explanation, in the parliamentary debates, for why this proposed amendment was not ultimately made, and no supplementary explanatory notes were prepared.

[75]The effect of the agreement is recorded in the schedule to these reasons, which reflects Mr Bilson’s amended schedule “A” to his submissions, handed up at the start of the hearing.

[76]Laing v Fagan [1991] QSCFC 38 and Lambert v Matilda Pet Foods [1999] QSC 136.

[77]Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239 and Brophy v Dawson [2004] QSC 372.

[78]Reasons at [150]-[154].

[79]Underlining added.

[80]Mr Bilson’s reply to Vatsonic’s submissions, at [7]-[9].

[81]Relying on Coulton v Holcombe (1986) 162 CLR 1.

[82]For example, the amendment to “reverse the effect of” Byrne v People Resourcing (Qld) Pty Ltd [2014] QSC 269 (discussed above); and the amendment to s 5(1)(b) of  the Civil Liability Act made by the Criminal Code and Civil Liability Amendment Bill 2007, expressed in the explanatory notes to the Bill which became that Act as “aim[ing] to redress the effect of the Queensland Court of Appeal decision in Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48”.

[83]Some are referred to in Mr Bilson’s submissions – Paskins v Hail Creek Coal [2017] QSC 190; Cootes v Concrete Panels [2019] QSC 146; Reddock v ST&T Pty Ltd [2022] QSC 293 and Carey-Schofield v Hays [2024] QSC 60.

[84]Reasons at [138]-[139].

[85]Reasons at [140], referring to the evidence of Mr Bilson’s treatment eye specialist, Dr Reddie.

[86]Reasons at [141].

[87]Ibid.

[88]Dr Reddie’s evidence (at AB 680).  See also Reasons at [178] and [183].

[89]Reasons at [142] and [147].

[90]Reasons at [170].

[91]Reasons at [153].

[92]Cootes v Concrete Panels [2019] QSC 146 at [92] per Crow J.

[93]This is the order as made by the trial judge, substituted here for convenience.  This figure represents the total of the damages assessed as against Vatsonic (of $539,447.05) less the statutory refund payable to WorkCover ($179,757.21).  See Reasons at [187] (noting however the typographical error, where $50,000 is recorded as the award for future loss of earning capacity, and that should be $250,000) (Reasons at [178]).

Close

Editorial Notes

  • Published Case Name:

    Bilson v Vatsonic Communications Pty Ltd; Vatsonic Communications Pty Ltd v Bilson

  • Shortened Case Name:

    Bilson v Vatsonic Communications Pty Ltd

  • MNC:

    [2024] QCA 171

  • Court:

    QCA

  • Judge(s):

    Bowskill CJ, Boddice JA, Henry J

  • Date:

    13 Sep 2024

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QDC 4205 Apr 2024Trial of plaintiff's claims for damages for personal injuries against first and second defendants; each defendant liable and liability apportioned; second defendant entitled to rely on indemnity; judgment for plaintiff against first defendant for $359,689.84: Coker DCJ.
Notice of Appeal FiledFile Number: CA 5563/2402 May 2024Notice of appeal filed.
Notice of Appeal FiledFile Number: CA 5634/2403 May 2024Notice of appeal filed.
Appeal Determined (QCA)[2024] QCA 17113 Sep 2024Appeals allowed or allowed in part; orders below set aside; judgment for plaintiff against first defendant for $359,689.84 and against second defendant for $590,801.57 with orders for contribution: Bowskill CJ (Boddice JA and Henry J agreeing).
Appeal Determined (QCA)[2024] QCA 22012 Nov 2024Costs orders and amendment to orders for contribution: Bowskill CJ, Boddice JA and Henry J.
Application for Special Leave (HCA)File Number: B58/202415 Oct 2024Application for special leave to appeal filed.
Special Leave Refused (HCA)[2025] HCADisp 906 Feb 2025Special leave refused: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Allesch v Maunz (2000) 203 CLR 172
1 citation
Jump To
Cite 1 - (2000) 203 CLR 172
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
1 citation
Jump To
Cite 1 - (2004) 217 CLR 424
Bilson v Vatsonic Communications Pty Ltd [2024] QDC 42
2 citations
Jump To
Cite 1 - [2024] QDC 42
Cite 2 - [2024] QDC 42
Bofinger v Kingsway Group Ltd (2009) 239 CLR 269
1 citation
Jump To
Cite 1 - (2009) 239 CLR 269
Brophy v Dawson [2004] QSC 372
3 citations
Jump To
Cite 1 - [2004] QSC 372
Cite 2 - [2004] QSC 372
Cite 3 - [2004] QSC 372
Byrne v People Resourcing (Qld) Pty Ltd[2015] 2 Qd R 397; [2014] QSC 269
5 citations
Jump To
Cite 1 - [2014] QSC 269
Cite 2 - [2014] QSC 269
Cite 3 - [2014] QSC 269
Cite 4 - [2014] QSC 269
Cite 5 - [2015] 2 Qd R 397
Carey-Schofield v Hays Specialist Recruitment (Australia) Pty Ltd [2024] QSC 60
1 citation
Jump To
Cite 1 - [2024] QSC 60
Cootes v Concrete Panels (Qld) Pty Ltd [2019] QSC 146
2 citations
Jump To
Cite 1 - [2019] QSC 146
Cite 2 - [2019] QSC 146
Coulton v Holcombe (1986) 162 CLR 1
1 citation
Jump To
Cite 1 - (1986) 162 CLR 1
CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121
4 citations
Jump To
Cite 1 - [2017] NSWCA 121
Cite 2 - [2017] NSWCA 121
Cite 3 - [2017] NSWCA 121
Cite 4 - [2017] NSWCA 121
Davis v Commissioner for Main Roads (1968) 117 CLR 529
3 citations
Jump To
Cite 1 - (1968) 117 CLR 529
Cite 2 - (1968) 117 CLR 529
Cite 3 - (1968) 117 CLR 529
Davis v Commissioner for Main Roads [1968] HCA 10
1 citation
Jump To
Cite 1 - [1968] HCA 10
Davis v Commissioner for Main Roads (1967) 117 CLR 529
1 citation
Jump To
Cite 1 - (1967) 117 CLR 529
Denying Indemnity Nigel Watts Fashion Agencies Pty Limited v GIG General Limited (1995) 8 ANZ Ins Cases 61
1 citation
Jump To
Cite 1 - (1995) 8 ANZ Ins Cases 61
Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500
3 citations
Jump To
Cite 1 - (1987) 163 CLR 500
Cite 2 - (1987) 163 CLR 500
Cite 3 - (1987) 163 CLR 500
Dickinson v. The Motor Vehicle Insurance Trust [1987] HCA 49
1 citation
Jump To
Cite 1 - [1987] HCA 49
Ellington v Heinrich Constructions Pty Ltd (2005) 13 ANZ Ins Cases 61
1 citation
Jump To
Cite 1 - (2005) 13 ANZ Ins Cases 61
Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1
4 citations
Jump To
Cite 1 - (2008) 72 NSWLR 1
Cite 2 - (2008) 72 NSWLR 1
Cite 3 - (2008) 72 NSWLR 1
Cite 4 - (2008) 72 NSWLR 1
Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114
1 citation
Jump To
Cite 1 - [2008] NSWCA 114
F & D Normoyle Pty Ltd v Transfield Pty Ltd (2005) 63 NSWLR 502
1 citation
Jump To
Cite 1 - (2005) 63 NSWLR 502
Findley v State of Victoria & Ors [2009] VSCA 294
2 citations
Jump To
Cite 1 - [2009] VSCA 294
Cite 2 - [2009] VSCA 294
Fox v Percy (2003) 214 CLR 118
1 citation
Jump To
Cite 1 - (2003) 214 CLR 118
Gordian Runoff Ltd v Heyday Group Ltd (2005) NSWCA 29
1 citation
Jump To
Cite 1 - (2005) NSWCA 29
James Thane Pty Ltd v Conrad International Hotels Corporation [1999] QCA 516
1 citation
Jump To
Cite 1 - [1999] QCA 516
Laing v Fagan [1991] QSCFC 38
3 citations
Jump To
Cite 1 - [1991] QSCFC 38
Cite 2 - [1991] QSCFC 38
Cite 3 - [1991] QSCFC 38
Lambert v Matilda Pet Foods [1999] QSC 136
3 citations
Jump To
Cite 1 - [1999] QSC 136
Cite 2 - [1999] QSC 136
Cite 3 - [1999] QSC 136
Lee v Lee (2019) 266 CLR 129
1 citation
Jump To
Cite 1 - (2019) 266 CLR 129
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1
1 citation
Jump To
Cite 1 - (2009) 240 CLR 1
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
3 citations
Jump To
Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
Cite 3 - (2001) 52 NSWLR 705
Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305
1 citation
Jump To
Cite 1 - (2001) NSWCA 305
Multiplex Constructions Pty Ltd v Irving [2004] NSWCA 346
1 citation
Jump To
Cite 1 - [2004] NSWCA 346
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
1 citation
Jump To
Cite 1 - [2006] QCA 48
Nominal Defendant v Smith (2015) 73 MVR 257
1 citation
Jump To
Cite 1 - (2015) 73 MVR 257
NTC Contracting Pty Ltd v Morton [2022] WASCA 160
1 citation
Jump To
Cite 1 - [2022] WASCA 160
Paric v John Holland Constructions Pty Ltd (1984) 2 NSWLR 505
1 citation
Jump To
Cite 1 - (1984) 2 NSWLR 505
Paskins v Hail Creek Coal Pty Ltd [2017] QSC 190
1 citation
Jump To
Cite 1 - [2017] QSC 190
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
2 citations
Jump To
Cite 1 - (1968) 119 CLR 118
Cite 2 - (1968) 119 CLR 118
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62
1 citation
Jump To
Cite 1 - [1968] HCA 62
Protheroe v Protheroe [2023] NSWCA 328
1 citation
Jump To
Cite 1 - [2023] NSWCA 328
R v A2 (2019) 269 CLR 507
1 citation
Jump To
Cite 1 - (2019) 269 CLR 507
R v Fowler (1985) 39 SASR 440
2 citations
Jump To
Cite 1 - (1985) 39 SASR 440
Cite 2 - (1985) 39 SASR 440
Reddock v ST&T Pty Ltd [2022] QSC 293
1 citation
Jump To
Cite 1 - [2022] QSC 293
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679
1 citation
Jump To
Cite 1 - (2016) 90 ALJR 679
Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239
3 citations
Jump To
Cite 1 - [2007] QSC 239
Cite 2 - [2007] QSC 239
Cite 3 - [2007] QSC 239
Samways v WorkCover Queensland [2010] QSC 127
2 citations
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Cite 1 - [2010] QSC 127
Cite 2 - [2010] QSC 127
Speirs v Caledonian Colleries Ltd (1956) 57 SR (NSW) 483
1 citation
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Cite 1 - (1956) 57 SR (NSW) 483
Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd (2000) 23 WAR 291
2 citations
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Cite 1 - (2000) 23 WAR 291
Cite 2 - (2000) 23 WAR 291
Speno Rail Maintenance Australia Pty Ltd v Hamersley Iron Pty Ltd [2000] WASCA 408
1 citation
Jump To
Cite 1 - [2000] WASCA 408
State Government Insurance Office (Q) v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228
2 citations
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Cite 1 - (1969) 123 CLR 228
Cite 2 - (1969) 123 CLR 228
State Government Insurance Office (Q) v Brisbane Stevedoring Pty Ltd [1969] HCA 59
1 citation
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Cite 1 - [1969] HCA 59
Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419
1 citation
Jump To
Cite 1 - [2005] NSWCA 419
Wang v Hur [2024] QCA 126
2 citations
Jump To
Cite 1 - [2024] QCA 126
Cite 2 - [2024] QCA 126
Warren v Coombes (1979) 142 CLR 531
1 citation
Jump To
Cite 1 - (1979) 142 CLR 531
Westina Corporation Pty Ltd v BGC Contracting Pty Ltd [2009] WASCA 213
1 citation
Jump To
Cite 1 - [2009] WASCA 213
Westina Corporation Pty Ltd v BGC Contracting Pty Ltd (2009) 41 WAR 263
2 citations
Jump To
Cite 1 - (2009) 41 WAR 263
Cite 2 - (2009) 41 WAR 263

Cases Citing

Case NameFull CitationFrequency
Bilson v Vatsonic Communications Pty Ltd [No 2] [2024] QCA 220 1 citation
1

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