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[2025] QCA 161
The Full Court usefully clarified several issues in dismissing an appeal from the judgment of Justice Crow. The Court found that: the test for procedural fairness of knowing the case against you is one of practical injustice, and that so long as the cause of action and essential material facts in issue are disclosed, procedural unfairness will not be visited upon a party; inferences drawn by a court from established facts must be reasonable, definite, and not contrary to other compelling inferences; and sufficient identification into the general causal mechanism of injury is adequate to sustain a cause of action. As to damages, the Court determined that: the calculation of damages under the Workers' Compensation and Rehabilitation Act 2003 is discretionary, and attracts a House v The King scope of review; and courts can order costs against non-insurer/employers under s 316 Workers' Compensation and Rehabilitation Act 2003.
2 September 2025
Bond and Brown JJA and Vaughan AJA
Background
This proceeding dealt with two appeals concurrently. [21]. The appeals were brought by Hays, a labour hire company who employed the respondent, and Civeo, the company which engaged Hays to procure staff to work at its accommodation village. The appeals were against a decision of Crow J in Carey-Schofield v Hays Specialist Recruitment (Australia) Pty Ltd [2024] QSC 60, (“the primary judgment”) in which Crow J found in favour of the plaintiff (the respondent in the appeal).
The plaintiff/respondent, Mr Carey-Schofield, was hired by the first defendant/appellant, Hays, to work in an accommodation village owned by the second defendant/appellant, Civeo, in 2019. [6]. One aspect of the services performed by the plaintiff at the village concerned rubbish disposal. [6]. During a shift, the plaintiff was injured when emptying wheelie bins of rubbish, when he was startled by a wasp and stepped backwards, tripping on a rubbish bag he had left on the ground. [14]. He suffered injuries to his left elbow, requiring surgery. [16]. After the injury, the plaintiff was restricted to light semi-skilled employment only. [16].
The primary judge found that the plaintiff had been instructed to leave the rubbish bags on the ground and loading them all at once, rather than placing them in a utility vehicle as each bin was emptied. [11]. Justice Crow found that: the injuries were caused by the presence of the rubbish bag on the ground; and both defendants breached their duty of care by failing to properly train the plaintiff/respondent. [19]. The primary judge ordered compensation of $279,450 be paid to the plaintiff/respondent.
Grounds for appeal
The defendant/appellants appealed, promoting that the primary judge: [22]:
(1)Erred in law by not affording the appellants procedural fairness by determining the proceedings in a manner inconsistent with the plaintiff's case;
(2)Erred in fact or law in drawing inferences as to the circumstances surrounding the injury;
(3)Erred in fact or law by failing to properly determine the scope of the risk of harm;
(4)Erred in fact or law in the calculation of damages; and
(5)Erred in law by ordering that Civeo pay the plaintiff's costs incurred in the proceedings against Hays, as such an order was contrary to s 316 Workers' Compensation and Rehabilitation Act 2003 (“the Act”).
Did the primary judge err in law by not affording procedural fairness by determining the proceedings in a manner inconsistent with the plaintiff/respondent’s case?
The defendant/appellants argued that the primary judge made factual findings which were inconsistent with the pleaded case of the plaintiff/respondent. [94]–[95]. The plaintiff/respondent argued the findings of the court were compatible with the essence of the plaintiff’s case, and that the defendant/appellants were mischaracterising findings of mere collateral facts, for findings of material facts in issue. [96].
The defendant/appellants relied on Suvaal v Cessnock City Council (2003) 77 ALJR 1449, in which the High Court found that the primary judge erred in finding in favour of the plaintiff on the basis of an operative cause of the accident that was never pleaded, and about which the defendant had no opportunity to explore in cross-examination or submissions. [117].
The Court noted that the concern of the law regarding procedural fairness is to avoid practical injustice, and what is necessary to avoid practical injustice will depend on the circumstances: Ex parte Lam (2003) 214 CLR 1; HT v The Queen (2019) 269 CLR 403. [103].
The Court found that the plaintiff/respondent’s asserted cause of the accident was adequately framed, so as to alert the defendant/appellants of the case to be met. [123]. That essential case was that the plaintiff/respondent, when emptying a bin, was startled by a wasp, stepped back, and tripped over a bin bag he had previously placed on the ground. It was immaterial which particular bag on the ground he tripped on, or whether he took one or several steps back. [147]. Resultantly, the Court found there was no procedural unfairness. [151].
Did the primary judge err in fact or law in drawing inferences as to the circumstances surrounding the injury?
The defendant/appellants promoted that the primary judge erred in drawing several inferences from the material at trial, because those inferences were not available to be drawn. [154]. The Court noted that any inference drawn by a court must be based on evidence, and the inferences drawn from that evidence must be reasonable and definite as opposed to mere conjecture when faced with inferences of equal probability: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1. [159].
The Court found that the critical inferences drawn by the primary judge concerning the material facts in issue were available to be drawn from the evidence available, and not contrary to any other compelling inferences. [176].
Did the primary judge err in law in failing to properly determine the scope of the risk of harm?
The defendant/appellants argued that the expression of the risk of harm should have included the risk of harm if a worker perceives an unexpected threat of danger, so as to cause the worker to move away from the threat without regard to their surroundings. [180]. The defendant/appellants argued that framing the risk of harm in this way was relevant, as a reasonable person in the position of the plaintiff/respondent’s employer would not have taken any precautions against the risk of harm so identified. [187]. The defendant/appellants relied upon McLeod v Mainfreight Distribution Pty Ltd [2021] VSCA 255 to support that proposition.
The Court rejected both these contentions, finding that: the primary judge’s formulation of the risk of harm, the risk of a worker tripping over a rubbish bag they had placed on the ground, identified the true source of potential injury and the general causal mechanism of the injury sustained; [192]; and even if the defendant/appellant’s expression was accepted, a reasonable employer would have trained employees to place the bins in the utility vehicle as each bin was emptied, rather than leaving them on the ground, and taking them all at once. [194].
Did the primary judge err in fact or law in calculating damages?
The defendant/appellants argued that the award of damages was so excessive that they were beyond the limits of a sound discretionary judgment. [206]. The Court noted that since the calculation for damages in this instance was a discretionary decision, to which the House v The King (1936) 55 CLR 499 standard applies, a range of outcomes must be tolerated. [213]. The Court noted that in such a case, it must be demonstrated that: the trial judge acted on a wrong principle of law, misapprehended the facts, or the award is so inordinately high or low as to create the inference of a wholly erroneous estimate: Miller v Jennings (1954) 92 CLR 190. [217].
The Court found that there was no error identified in the primary judge’s damage assessment methodology, [220], and that considering all the circumstances, the damages were not unreasonable, unjust, or wholly erroneous. [232].
Does s 316 of the Act preclude a court from making an order as to costs against a party that is neither the relevant employee or employer/insurer?
Civeo argued that s 316 of the Act precluded the order that it pay costs incurred by the plaintiff/respondent in proceedings against Hays, because s 316 does not provide the power for the court to order costs against any party other than the employee, or the employer/insurer. [251]. Civeo indicated that the cases of Paskins v Hall Creek Coal Pty Ltd & Anor (No 2) [2018] 2 Qd R 518, Thomson v State of Queensland & Anor (No 2) [2019] 3 Qd R 514, and Reddock v ST & T Pty Ltd & Anor (No 2) [2023] QSC 21, which were cited by the primary judge in making the costs order, were wrongly decided, and should not be followed in the present case. [251].
The Court indicated that while these single judge decisions were helpful, the Queensland Court of Appeal is not bound by them. [263]. The Court then preceded to engage in an exercise of statutory construction free from any preconceptions. [263]. The Court considered whether the term ‘claimant's proceeding’ in s 316 of the Act meant the claimant’s proceeding against the employer/insurer (i.e. the lis between the claimant and insurer), or was broader, capturing the entire action by which the claimant is taking his or her proceeding against the insurer/employer, thereby capturing the lis as between the claimant and some other defendant where that other defendant was also a party in the proceeding against the insurer/employer. [270].
The Court reasoned that the broader interpretation would lead to such an inconvenient or improbable result that it must be rejected. One such improbable result was that under the broader interpretation, there would be no possibility of the claimant obtaining a costs order against a non-insurer/employer defendant where they were joined in the proceedings as between the claimant and insurer/employer. [274].
Disposition
In the result, the Court dismissed the appeal, and sought further submissions as to costs of the appeal. [283].
S Robinson