Procedural Fairness by Trial Judge in Holding Plaintiff to Pleaded Case

In Hayes Specialist Recruitment (Australia) Pty Ltd v Carey-Schofield; Civeo Pty Ltd v Carey-Schofield [2025] QCA 161 (2 September 2025), the Queensland Court of Appeal – in a personal injury claim brought by a plaintiff against an employer and non-employer respectively in relation to a work injury – addressed arguments concerning contentions of unfairness of the trial judge in the manner in which findings were made pertaining to the pleaded case, and case run at trial by the plaintiff.  The court (Bond and Brown JJA and Vaughan AJA) wrote:

Overview

[1]  On 24 February 2019, Aaron Carey-Schofield (plaintiff) suffered a workplace injury when employed by Hays Specialist Recruitment (Australia) Pty Ltd (Hays) to perform facilities work as directed by Civeo Pty Ltd (Civeo) at Civeo’s accommodation village at Dysart. The plaintiff brought proceedings against Hays and Civeo alleging breach of a duty of care to take precautions against risk of harm by, among other things, failing to train the plaintiff as to, and failing to provide, a safe system of work. After a four-day trial the primary judge (Crow J) delivered written reasons finding for the plaintiff: Carey-Schofield v Hays & Civeo.1 The primary judge entered judgment against Hays for $503,595.51 and Civeo for $873,014.08.

[2]  By these appeals Hays and Civeo contend that the primary judge erred in giving judgment for the plaintiff.

[3]  Hays and Civeo say that they were not afforded procedural fairness so far as the primary judge determined the proceedings adversely to them in a manner that was inconsistent with the plaintiff’s pleaded case and his case at trial as well as the plaintiff’s evidence. Hays and Civeo also challenge some of the primary judge’s critical factual findings in upholding the plaintiff’s claim and Hays raises a point about the primary judge’s formulation of the relevant risk of harm. In the alternative, if there is a basis for judgment to be entered in favour of the plaintiff, Hays and Civeo challenge the assessment of damages to the extent that his Honour made allowances for future loss of earning capacity and future loss of superannuation benefits.

[4]  Civeo also challenges the costs order made by the primary judge raising a point as to the proper construction of s 316 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

[5]  For the reasons that follow both appeals should be dismissed.

Background

[6]  Hays is a labour hire company. Hays employed the plaintiff on a casual basis between 15 and 27 February 2019 to work in the position of ‘facilities — stores/grounds’ with Civeo at Civeo’s Dysart accommodation village. The plaintiff was one of many facilities cleaning staff at the village. The plaintiff received an induction and training over 15–18 February 2019 when he commenced at the village. One aspect of the services performed by the plaintiff at the village concerned waste and rubbish removal and disposal.

[7]  The primary judge made findings as to the system of work adopted by Civeo for waste and rubbish removal and disposal and, by comparison, the training and instruction provided to the plaintiff on that subject.

[8]  There were numerous 240-litre wheelie bins throughout the accommodation village. The bins were lined with large plastic bags. The rubbish in the bins was collected and taken away from time to time. Kevin Nash, the facilities supervisor for Civeo at the village in February 2019, gave evidence of the system of work he taught. The primary judge seemingly accepted this evidence as Civeo’s safe system of work [16] (see also [112]). The system was to open the lid of the wheelie bin, tie the bin liner bag, pull the liner bag with rubbish out and immediately put the tied rubbish bag on the back of a utility vehicle. Mr Nash said that he did not train new employees to place rubbish bags on the ground as that would obviously create a trip hazard [13].

[9]  The system was to have two workers available — for a team lift if the rubbish bags were too heavy — to avoid creating a tripping hazard by requiring rubbish bags once removed from a wheelie bin to be placed onto a utility straight away [16], [17].

[10]  Mr Nash’s evidence that rubbish bags should not be left on the ground, but should be placed on a utility straight away, was consistent with the evidence of the village manager at the material time [12] and the evidence of an employee in Civeo’s maintenance department [17]. Another employee who transitioned to the facilities team at around the time of the plaintiff’s accident gave evidence that she was trained to tie the bin liners up, take the bin liner out of the wheelie bin, put the rubbish bag immediately in the back of a utility, and then go to the next bin [19]. However, a written facilities work instruction did not include a direction that, when full, rubbish bags ought to be placed into the rear of a utility immediately rather than be placed on the ground [15].

[11]  The primary judge recorded the effect of the plaintiff’s evidence as to the training he received on Civeo’s system of work [21], [27]–[30], [32]–[33]. His Honour accepted that evidence [34], [56]. The primary judge made findings that:

1. The plaintiff was placed with a male work buddy who provided a practical demonstration as to the method by which the plaintiff was required to carry out his duties [100](c).

2. As to waste and rubbish removal and disposal, the plaintiff was instructed to [100](d):

(a) drive a work utility to the area where the relevant wheelie bins were located;

(b) attend at a bin, open its lid, tie the top of the liner bag, lift the liner bag out of the bin and put it down on the ground, put a new liner bag in the bin, and then go to the next available bin until each of the liner bags with rubbish had been removed;

(c) collect the rubbish bags and lift them into the back of his utility.

3. The plaintiff was also instructed that, if the bin liners with rubbish were too heavy to lift, he should [100](e):

(a) lie the wheelie bin on the ground, drag the bin liner full of rubbish out on its side, stand the bin up, and put a new bin liner in the wheelie bin;

(b) call for assistance if he was unable to lift the rubbish bag onto the tray of his utility.

[12]  Accordingly, as the primary judge observed, the plaintiff was not trained to perform waste and rubbish removal and disposal in accordance with Civeo’s safe system of work: the plaintiff was not trained to immediately place rubbish bags into the rear of a work utility so as to avoid trip hazards to himself and others [34]. The plaintiff was trained to take all the full bags of rubbish out of the wheelie bins and place them on the ground before loading them into the back of his utility [42], [56], [77], [83]–[84].

[13]  On the evidence the plaintiff was a relatively slight individual — he weighed around 54 kilograms (ts 2–32).

[14]  The plaintiff was injured when emptying wheelie bins of rubbish on 24 February 2019. The plaintiff claimed, in effect, that when startled by a wasp he stepped backwards, tripped on a rubbish bag left on the ground and fell onto his left elbow.

[15]  It will be seen that there was and is controversy as to the details of the incident that resulted in the plaintiff’s injury. One matter of significance concerned identification of the rubbish bag that the plaintiff tripped on. The grounds of appeal necessitate that detailed consideration be given to the plaintiff’s pleaded case and his evidence at trial together with the primary judge’s factual findings. This is addressed below after identification of the issues raised by the appellants’ grounds of appeal. For now it suffices to say that, in a ‘general sense’, the primary judge accepted the plaintiff’s evidence as to how the accident occurred [66].

[16]  As a result of his injury, the plaintiff was hospitalised. He suffered a comminuted intra-articular fracture of the left distal humerus with displacement that required surgery. The plaintiff was left with significant limitation in range of movement of the left elbow. A medical practitioner called at trial, whose evidence was accepted, described the plaintiff as presenting with a left elbow deformity and muscular wasting of the left arm. The radiological evidence showed post-traumatic degenerative change that was likely to be ongoing. The plaintiff was assessed as having a 7% whole person impairment with an additional 1% whole person impairment for post-surgical scarring. In terms of occupational prognosis the plaintiff was restricted to light semi-skilled employment. There was also evidence that the plaintiff suffered psychiatric impairment as a sequela to his physical injury [119]–[126].

[17]  For the purpose of the negligence claims the primary judge characterised the relevant risk of harm as the risk of tripping on the garbage bags [107].

[18]  The primary judge was satisfied that Hays and Civeo had breached their duty of care to the plaintiff in several ways [110], [112], [115]. These findings are not challenged on appeal. Accordingly, it is not necessary to summarise the various breaches as found. In short, however, his Honour considered that there was a failure to provide the plaintiff with and train the plaintiff as to a proper and safe system of work.

[19]  The primary judge was also satisfied that it was the presence of the rubbish bag on the concrete apron that caused the plaintiff to trip. Accordingly, his Honour was satisfied that the plaintiff had established factual and legal causation — if the rubbish bag had not been left on the ground the plaintiff would have been able to move backwards away from the wasp and would not have tripped [116]. There is no express challenge on appeal to the causation finding. There is, however, a challenge to the primary judge’s findings as to the mechanism by which the injury occurred.

[20]  The primary judge assessed damages making different awards against Hays and Civeo. The awards included $250,000 for future loss of earning capacity and $29,450 for future loss of superannuation benefits. These aspects of the awards are challenged by the appeals. We will examine the primary judge’s reasons for these aspects of the awards when considering that part of the appeals.

The issues on appeal

[21]  Hays and Civeo bring separate appeals. However, there is considerable overlap in their grounds of appeal. Accordingly, it is convenient to summarise the substance of the various grounds, identifying the issues for determination, rather than reproducing the grounds of appeal in full.

[22]  The appeals raise the following issues for determination:

1. Whether in giving judgment for the plaintiff against Hays and Civeo the primary judge erred in law by not affording the appellants procedural fairness so far as the primary judge determined the proceedings adversely to the appellants in a manner inconsistent with the plaintiff’s pleaded case and his case at trial together with the plaintiff’s evidence? (Hays ground 2.1(a); Civeo ground 2(a).)

…

…

The plaintiff’s case at trial and the defendants’ responses thereto

[61]  The plaintiff’s case at trial was advanced consistently with his pleaded case as to the incident. The plaintiff confirmed as much at the appeal hearing. See plaintiff’s submissions pars 20–21 (Hays appeal); plaintiff’s submissions pars 20–21 (Civeo appeal).

[62]  In opening the plaintiff’s case, senior counsel for the plaintiff described the mechanism of the injury as involving the plaintiff tripping over a bag of rubbish after stepping backwards while attempting to empty a wheelie bin (ts 1–5). More specifically, senior counsel for the plaintiff stated:

[The plaintiff] tied the top of the bag in the first wheelie bin, put it on its side, and dragged or pulled the bag or bin liner out from it. He placed a fresh bag or bin liner into the wheelie bin and then stood it back upright. [The plaintiff] will tell you that he can’t be exactly sure or certain as to how many bags had been removed prior to the incident occurring. The best he can say is that he believed some one or two bags had been removed from the wheelie bins as at the point the subject incident occurred.

At the relevant time, [the plaintiff] proceeded to pull the bag or liner out, a wasp flew out of the bin, startled him, and indeed landed on his left arm, slightly above the wrist. He was startled, stepped backwards, and as a result, fell over a bag he had previously removed from a wheelie bin. He landed on his left elbow (ts 1–5 to 1–6). (emphasis added)

[63]  The plaintiff closed conformably with his opening.5 The plaintiff accepted that there was a dispute over how the incident occurred (plaintiff’s WS par 8). Given Civeo’s pleaded admission that the plaintiff tripped and fell over a rubbish bag left on the ground, the plaintiff characterised the dispute as being, so far as Hays was concerned, whether the plaintiff tripped over a rubbish bag he was pulling, carrying or manoeuvring rather than a bag he had left on the ground (plaintiff’s WS pars 7(a), 9). In oral submissions, counsel for the plaintiff said that the primary judge should not accept that the photograph (ie the photograph that grounded each of Exhibit 4, Exhibit 5 and Exhibit 16) depicted the accident scene at the time of the accident (ts 2-92 to 2–96). So far as there were inconsistencies between the markings of relevant places in Exhibit 4 and Exhibit 5, counsel submitted that the plaintiff’s marking in Exhibit 5 was more likely due to it being the earlier in time (with Exhibit 4 being five years after the event) (ts 2–95 to 2–96).

[64]  Hays reiterated its pleaded case as to the incident in its closing submissions at trial (Hays WS6 par 11). Under the heading ‘[d]id the incident occur as pleaded?‘, Hays observed that the plaintiff bore the onus of proving that the incident occurred as pleaded in par 13 of the SOC (Hays WS par 13). Hays then developed how the plaintiff’s evidence differed from his pleaded case and why the court ought not be satisfied that the incident occurred as pleaded. This included that the plaintiff was directly contradicted by the photographic evidence (Hays WS pars 15(c), 32–39). Hays submitted that the plaintiff’s claim must be dismissed if his version of the incident was not proved to the requisite standard (Hays WS par 54).

[65]  In oral closing submissions, senior counsel for Hays contended that it was for the plaintiff to prove his pleaded case as to the incident and that the plaintiff had not done so (ts 2–40, 2–42, 2–52, 2–57). Senior counsel developed that submission by reference to, among other things, the photographic evidence. In relation to the photograph that grounded each of Exhibit 4, Exhibit 5 and Exhibit 16, senior counsel for Hays submitted that the photograph was consistent with what Hays said was the ‘far more likely explanation’, namely, that bag 4 was the bag the plaintiff was dealing with and the bag that he fell on (ts 2–53 to 2–54). Senior counsel submitted that the primary judge should accept that the photograph depicted the accident scene at the time of the accident and completely contradicted the plaintiff’s case (ts 2–56).

[66]  In closing, Civeo submitted that the wasp did not come from the bin that the plaintiff was attending to; it came from a bin that the plaintiff had emptied earlier.7 Counsel for Civeo developed the submission in oral submissions. As developed, the submission was that the likelihood was that the plaintiff had tripped and fallen over a rubbish bag he had previously removed from a bin (ts 2–24). Counsel relied on the photographic evidence which was said to depict the accident site undisturbed (ts 2–24 to 2–25). Counsel said that the primary judge should find, based on the photographic evidence, that the plaintiff had in fact dragged four rubbish bags out of the wheelie bins (ts 2–25).

[67]  We have dealt with Hays’ closing submissions before Civeo’s closing submissions because Hays was the first defendant and Civeo was the second defendant. It will, however, be appreciated that Hays’ closing address was delivered after Civeo’s closing address. Before giving his closing submissions, senior counsel for Hays had the opportunity to hear Civeo’s closing submissions and the interactions between the primary judge and counsel for Civeo in the course of Civeo’s closing submissions.

[68]  In the course of closing addresses the primary judge raised various matters with each of the parties. Among other things his Honour raised the significance of the photographic evidence and what inferences should be drawn from it. The matters raised by the primary judge are best mentioned when dealing with Issue 1.

The primary judge’s findings as to the incident

[69]  The primary judge seemingly accepted that the plaintiff was assigned to empty wheelie bins at the back of The Hub [36].

[70]  This was the first occasion the plaintiff had removed rubbish from behind The Hub. The Hub is a pub gathering area. At the time the village kitchen was inoperable. Cooking for the accommodation village was being undertaken on barbeques at The Hub. As a result the wheelie bins at the back of The Hub were full of food waste and heavy. The plaintiff drove his work utility to a position just behind The Hub near the wheelie bins at around 10.30 am. The tray of the plaintiff’s utility was facing The Hub [36]–[37], [84].

[71]  At trial Hays contended that the plaintiff should not be regarded as a witness of credit or, at the least, ought not to be regarded as a reliable witness.

[72]  The primary judge was conscious that the plaintiff had been inconsistent in various aspects of his evidence [61]–[63], [66], [73], [80]–[82], [88] (see also [95]). One of the more significant inconsistencies was that the plaintiff had given different versions of which rubbish bag he tripped on. The primary judge also referred to a ‘discrepancy’ between the plaintiff’s evidence and his Honour’s finding (which we will come to) that the plaintiff had taken four bin liners from the wheelie bins and left them on the ground prior to the incident [41] (see also [61], [91]–[93], [97]–[99]). The primary judge identified various deficiencies in the plaintiff’s evidence that adversely affected his credit [67], [68], [70], [75]. The primary judge also acknowledged that there were issues as to the reliability of the plaintiff’s evidence [71], [75]–[76], [82]. In the latter respect his Honour went as far as to describe the plaintiff as not being an ‘entirely reliable historian’ [82] and rejected various aspects of the plaintiff’s evidence.

[73]  Specifically, the primary judge rejected the plaintiff’s evidence to the effect that:

1. Exhibit 16 (the photograph showing the rubbish bags on the ground at the back of The Hub) did not show the accident site as it was when he was injured [41], [87].

2. The position of the wheelie bins at the time of the accident, and where the plaintiff fell, was as shown in the plaintiff’s markings on Exhibit 4 [88], [98]. (Exhibit 4 was the photograph of the accident site which was marked up by the plaintiff in the course of his cross-examination).

3. The plaintiff had taken two or three rubbish bags out of wheelie bins at the time of the accident (ie all four rubbish bags were not out of the wheelie bins at the time of the accident) [92].

[74]  Nonetheless, while accepting that there were matters that, in combination, affected the assessment of the plaintiff’s credibility and reliability, the primary judge considered that the plaintiff should be accepted as a ‘generally’ honest witness and a ‘mostly’ reliable witness. The primary judge preferred the ‘objective or earlier evidence’ as to what occurred where such evidence was available. His Honour considered it to be appropriate to be cautious of the plaintiff’s evidence ‘more so on the basis of reliability rather than honesty’ [75].

[75]  Importantly, the primary judge accepted the plaintiff’s evidence as to how the accident occurred ‘in a general sense’ [66] (see also [64], [75], [95]).

[76]  The ‘basic version’ was that, while the plaintiff was engaged in emptying wheelie bins, he placed tied rubbish bags on the ground. A wasp came towards the plaintiff from a bin he had emptied. The wasp stung the plaintiff on his left inner forearm or wrist. The plaintiff stepped back and fell after tripping on a rubbish bag. See [95], [100](j), [118]. The primary judge said of this basic version that it was a ‘sufficiently consistent version of the incident that I consider to be truthful and accurate’ [95].

[77]  In making factual findings as to the circumstances of the plaintiff’s injury the primary judge relied heavily on Exhibit 16. His Honour referred to the photograph as being ‘important’ [97] (see also [85]). Exhibit 16 is a clean copy of the photograph of the scene of the accident. That photograph is reproduced immediately below. It will be seen that Exhibit 4 and Exhibit 5 are based on the photograph in Exhibit 16.

[78]  Exhibit 16 shows four wheelie bins (all standing upright) and four bin liners full of rubbish (all lying on the ground). The primary judge referred to the bins and the rubbish bags, from right to left, as bin (or bag) 1–4. The bin and bag to the far right of Exhibit 16 is bin 1 and bag 1; the bin and bag to the far left of Exhibit 16 is bin 4 and bag 4.

[79]  It is apparent from Exhibit 16, and the primary judge found, that wheelie bins 1–3 had been completely emptied, re-lined and stood up with their lids closed. Bin 4, by contrast, had been stood up; but its lid was fully open. A bin liner was hanging over the top of the bin cavity [90], [93], [99] (it is difficult to see the bin liner; but it may be made out to the left-hand top of the bin cavity). The rubbish bag from bin 4 had been removed and placed on the ground [91].

[80]  There was a partial deformity to bag 4 [89].

[81]  The primary judge found that the photograph in Exhibit 16 was taken 22 minutes after the accident [41], [87], [98]. The primary judge also found that the photograph in Exhibit 16 showed the wheelie bins and the rubbish bags in the position that they were in immediately following the plaintiff’s accident and that the scene had not been disturbed by any person (other than the introduction of a buggy tray to the right of the accident scene) [41], [98].

[82]  In addition, while not mentioned by the primary judge in his reasons, there was uncontradicted evidence that the plaintiff did not recollect the water bottle to the right of the photograph and that he left his water bottle in the utility (ts 1–52). Mr Nash gave some evidence that, after the accident, the plaintiff requested a bottle of water and Mr Nash gave him one (ts 3–18). Whatever its provenance, the presence of the water bottle in Exhibit 16 did not assume any significance for the appeal. That feature of the photograph may be put to one side.

[83]  When its appeal was commenced, Civeo foreshadowed a challenge to the primary judge’s finding that Exhibit 16 showed the accident scene undisturbed (Civeo ground 2(d)). However, pre-hearing Civeo abandoned that aspect of its appeal.8 Similarly, although the plaintiff’s written submissions in both appeals foreshadowed a challenge to the accuracy of Exhibit 16, senior counsel for the plaintiff withdrew the submissions to that effect at the appeal hearing.9 Accordingly, for the purpose of the appeals this court must proceed on the basis that the photograph in Exhibit 16 depicts the scene as it was at the time of the plaintiff’s accident (save for the buggy and the water bottle).

[84]  The primary judge concluded, on the basis of Exhibit 16, that the incident occurred after the plaintiff had removed the bin liner from bin 4 and stood it back up (ie the plaintiff had taken four rubbish bags from the wheelie bins and left them on the ground before the accident occurred) [41], [61], [92], [99]. The primary judge reasoned that:

93. There is a consistent version from the plaintiff that after the wasp flew out of the bin, it startled him causing him to take a step backwards. As can be shown from Exhibit 16, the only bin that a wasp could have flown out of is bin 4. Given that bin 4 is standing vertically it seems to me that the wasp must have flown out after the plaintiff had re-stood the bin and placed the bin liner on the top left-hand corner of the bin.

94. If bin 4 were to be laid upon the concrete as the plaintiff said it was, even after the plaintiff had returned the bin to its standing height, it seems to me that the plaintiff’s evidence is credible that when the wasp came towards him he stepped backwards. It seems to me it is also credible that if the plaintiff stepped backwards, his left foot, as explained in Exhibit 5 [the plaintiff’s solicitor’s description of the accident] paragraph 1, came into contact with bag 3, as also indicated upon Exhibit 5, causing the plaintiff to fall towards his left, and upon his left elbow. It is possible but unnecessary to decide if the deformity to bag 4 was caused by a part of the plaintiff’s body striking bag 4.

…

97. The photograph of the accident scene, Exhibit 16, is important. It does show four bins standing upright. Bin 4 on the lefthand side is open, empty and contains an unused garbage bin liner sitting unfolded on the top of the bin. The other three bins have been completely emptied and new garbage bin liners placed within the bins. It seems to me that this strongly suggests that the plaintiff had in fact emptied bin 1, the bin on the far right, and then moved towards the left to empty and re-line the second bin and then the third bin, and the incident which he has described occurred after he had removed the full bin liner from the fourth bin, but had not yet replaced the bin liner in the fourth bin. (emphasis added)

[85]  The primary judge made factual findings as follows (in so doing suggesting that he was ‘[a]ccepting most but not all of the plaintiff’s evidence as to the circumstances prior to, and at the time of the incident’ [100]):

1. On 24 February 2019, before 10.30 am, the plaintiff was instructed to remove bin liners full of rubbish from the wheelie bins behind The Hub [100](f).

2. The plaintiff attended to the four wheelie bins at the back of The Hub — those bins being as shown in Exhibit 16 [100](g).

3. After opening the first wheelie bin, the plaintiff realised that the liner bags full of rubbish were too heavy and he would need assistance to lift the bags [100](g).

4. Soon afterwards the plaintiff spoke with a female co-worker who was driving by in a buggy. The female co-worker came to the plaintiff’s assistance. However, having tried to lift a bag up, the female co-worker said words to the effect: ‘These are heavy. We’ll pick them up on the way back’ [100](g).

5. The plaintiff continued his work as he had been trained to do — the plaintiff removed the bin liners from the three remaining wheelie bins and left the rubbish bags on the ground in a position as indicated in Exhibit 16 [100](h).

6. After the plaintiff removed the fourth bin liner from the fourth wheelie bin, placing it on the ground, a wasp came from within or from the vicinity of the fourth bin towards the plaintiff, causing him to step backwards [100](i).

7. The wasp stung the plaintiff on his left inner forearm [100](j) (although elsewhere the primary judge referred to the plaintiff being stung on the left inside wrist [118]).

8. As the plaintiff was moving backwards, away from the wasp, the plaintiff tripped on the rubbish bag from the third wheelie bin, fell to the ground, and suffered injury to his left elbow [100](k).

[86]  As we have mentioned, the findings at primary reasons [93] and [94] (see [84] above) are challenged as part of Issue 2. So are the findings summarised at [85](5), (6) and (8) above.

[87]  It is convenient, at this point, to contrast aspects of the primary judge’s factual findings, on the one hand, and, on the other hand, the plaintiff’s case as expressly pleaded and advanced at trial together with his evidence. Relevantly:

1. The primary judge found that the photograph in Exhibit 16 depicted the accident scene at the time of the accident. However, the plaintiff gave evidence, in effect, that the photograph did not depict the location of the wheelie bins and the rubbish bags at the time he sustained his injury. Also, the markings on Exhibit 4 as made by the plaintiff in the course of his evidence were inconsistent with the primary judge’s finding that the photograph depicted the accident scene essentially undisturbed.

2. The primary judge found that the plaintiff emptied the wheelie bins moving from right to left (viewed from the perspective of the photograph). The order in which the plaintiff emptied the bins was not part of his pleaded case; nor did the plaintiff deal with the matter expressly in his evidence. However, Exhibit 5 was prepared on the basis that the plaintiff had moved from left to right. In his evidence the plaintiff accepted that he instructed his solicitors as to the locations depicted in Exhibit 5.

3. The primary judge found that the wasp flew out of wheelie bin 4 and that the plaintiff had emptied each of the four bins before the accident. However, at par 13(h) – (j) of the SOC the plaintiff pleaded, relevantly and in effect, that the accident occurred as he was removing a rubbish bag from the second wheelie bin (when the wasp flew out of the bin). The plaintiff’s evidence-in-chief was largely consistent with the pleaded case (although he did admit to the possibility that two bags had been removed from the wheelie bins rather than one). In cross-examination the plaintiff said that he was on his second or third bag and expressly rejected the proposition that all four bags had been removed from their respective wheelie bin.

4. The primary judge found that the wasp flew out of wheelie bin 4, startling the plaintiff and causing him to step backwards, after the plaintiff had emptied wheelie bin 4, stood it back up and placed the bin liner on the top left-hand corner of the bin. That sequence is inconsistent with the plaintiff’s pleaded case and evidence as summarised in sub-par (3) above. Specifically, it is inconsistent with: (a) the plea that the wasp flew out of the second bin, startling the plaintiff, while the plaintiff was proceeding to pull the bag out of that bin (SOC par 13(i)); and (b) evidence given by the plaintiff in examination-in-chief and cross-examination to that effect.

5. The primary judge found that the plaintiff stepped back and tripped on rubbish bag 3 causing him to fall over onto his left elbow. However, the SOC referred to the plaintiff falling over the first bag of rubbish (SOC par 13(j)). In evidence the plaintiff was equivocal about identifying the specific rubbish bag that he had tripped on (although adamant that it was not the bag that he was dragging out from the wheelie bin that the wasp flew out of).

[88]  The third, fourth and fifth matters indicate another difference. The plaintiff’s evidence was to the effect that he was startled by the wasp while crouching or in a squatting type position. The plaintiff’s body position immediately prior to his trip and fall was unpleaded. However, while there is not an express finding on the part of the primary judge, it is implicit in the factual findings as made that the plaintiff was standing erect at the fourth wheelie bin when startled by the wasp (having placed the bin liner in the top left-hand corner of the wheelie bin).

[89]  While, in these respects, there are a number of specific differences between the primary judge’s factual findings as to the incident and the detail of the plaintiff’s case and his evidence, there is nonetheless a substantial congruity between the factual findings made by the primary judge and the key material facts relied on by the plaintiff in his claims against Hays and Civeo. In substance, the primary judge found that, when startled by a wasp while performing work duties involving waste and rubbish removal and disposal, the plaintiff fell onto his left elbow having tripped on a rubbish bag left on the ground after it was removed from a wheelie bin. The interaction with the wasp saw the plaintiff move backwards whereby he tripped on a rubbish bag he had pulled out from a wheelie bin. The plaintiff fell over onto his left elbow.

[90]  Hence why it was that the primary judge stated that he accepted as truthful and accurate ‘the basic version of emptying bins, placing bags upon the ground, a wasp coming towards [the plaintiff] from a bin he emptied, and [the plaintiff] stepping back and falling after tripping on a bag’ [95].

[91]  The primary judge’s factual findings as to the incident were consistent with the appellants’ respective cases at trial in a number of respects. First, the primary judge accepted that the photograph in Exhibit 16 relevantly depicted the accident scene as at the time of the accident. Hays and Civeo both relied on the photograph as an accurate depiction of the accident scene at the time of the accident. Second, the primary judge accepted that the accident occurred after the plaintiff had emptied all four wheelie bins of their rubbish bags. However, the primary judge rejected Hays’ contention that the plaintiff fell or tripped over the fourth rubbish bag as he was sliding that bag out of its wheelie bin. The primary judge’s finding, to the contrary, that the plaintiff tripped on the third rubbish bag, was consistent with the admission in the Civeo Defence that the plaintiff fell over one of the rubbish bags he had removed from the wheelie bins and left on the ground (albeit that apparently leave had been granted to withdraw the admission).

Issue 1 — the alleged denial of procedural fairness

The parties’ submissions

[92]  The appellants alleged that there had been a denial of procedural fairness because the case had been decided against them by the primary judge making factual findings that were inconsistent with and directly contradictory of the plaintiff’s pleaded case and his evidence. The appellants contended that the impugned factual findings were not part of any party’s case at trial and were made without the primary judge having raised the possibility of such factual findings being made.

[93]  It was said that no party would have had within its contemplation that submissions were required to address the version of the facts as found by the primary judge — it being a version that was not propounded by any party or any witness.

[94]  In particular, Hays submitted that the primary judge rejected the plaintiff’s version of how the incident occurred. In those circumstances, according to Hays, the primary judge ought not to have sought to reconstruct events. Instead the case should have been dismissed. Alternatively, the primary judge’s hypothesis should have been raised with the parties. The parties might then have given consideration to whether any evidence was required to meet that hypothesis or what submissions might be made in answer to it. Hays said that the primary judge’s hypothesis required the plaintiff to have taken more than one step backwards. Hays suggested that evidence as to the number of steps may have had a bearing on questions such as the foreseeability of risk, the reasonable precautions to be taken against the risk, the likelihood of the event occurring and contributory negligence.

[95]  Senior counsel for Civeo put the contention succinctly when addressing Issue 2. Senior counsel submitted, in substance, that the appellants did not have a proper opportunity to address the inferences drawn and scenario found by the primary judge. This was because it was thought that the contest was between the plaintiff’s account and the versions provided by others. The scenario as found was said to be something that was not addressed by the parties as a possible scenario from among the competing hypotheses that were explored at trial. There was, for example, no testing in cross-examination as to whether the accident occurred when wheelie bin 4 was upright at a time when the plaintiff was standing up rather than crouched down dragging a rubbish bag out of a bin.

[96]  The plaintiff said that his evidence as to the incident was consistent with his pleaded case. That much should be accepted. From there the plaintiff contended that the primary judge’s findings were consistent with the essence of the plaintiff’s case as pleaded and his evidence. The plaintiff characterised the appellants as complaining about the primary judge’s determination of factual matters that were collateral to the material fact in issue as to liability. The material fact was, according to the plaintiff’s argument on appeal, whether the plaintiff tripped on a rubbish bag left on the ground after it was removed from another wheelie bin. In that respect the number of bags on the ground at the time, and identification of the specific bag that the plaintiff tripped on, was said to be immaterial. The plaintiff said that what was critical was whether there was more than one bag of rubbish on the ground at the time that the incident occurred.

[97]  The plaintiff submitted that, in the face of the evidence including Exhibit 16, the appellants had the opportunity to make submissions as to the mechanism by which the plaintiff’s injury occurred. There was thus no procedural unfairness.

The authorities

[98]  All courts are obliged to afford procedural fairness to parties to a proceeding: HT v R.10 But to say that a court is obliged to afford procedural fairness is only the first step of analysis. The second step is to identify the content of the requirements of procedural fairness. It is the second step that is critical in most cases: Kioa v West.11

[99]  One aspect of procedural fairness is that a person against whom a claim is made must be given a ‘reasonable opportunity’ of being heard, ie of appearing and presenting its case: HT v R [17]. In HT v R Kiefel CJ, Bell and Keane JJ explained that as a corollary:

In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made [17]. (citations omitted)

[100]  A closely related rule was stated by McHugh J in Re Refugee Review Tribunal; Ex parte Aala:

[A] decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.12

[101]  McHugh J was in dissent in Ex parte Aala. His Honour differed in the ultimate outcome based on discretionary grounds. However, there is no doubt as to the correctness of McHugh J’s statement of principle as reproduced immediately above. Also, while the statement was made in the context of administrative decision-making, it is equally applicable to curial decisions.

[102]  At the core of the requirement to afford procedural fairness is that a party whose interests are liable to be affected by a decision must be put on notice of the case against it and given an opportunity to respond. Accordingly, for present purposes, procedural fairness required that the appellants first be put on notice of what was to be determined by the primary judge at the trial; and, having been given notice, that the appellants then be given a reasonable opportunity to be heard by presenting their respective cases by evidence and submissions.

[103]  However, the rules of procedural fairness do not have immutably fixed content. The content of procedural fairness will vary according to the circumstances of the particular case. Procedural fairness is essentially practical; it is not an abstract concept. The concern of the law is the avoidance of practical injustice. What is necessary to avoid practical injustice will depend on the circumstances. See Ex parte Lam [37]; HT v R [18].

[104]  The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court and the legislation and rules which govern them: Assistant Cmr Condon v Pompano Pty Ltd.13 In a civil case, the procedural fairness requirement that a party be adequately informed of the case against it is ordinarily satisfied by pleadings: Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd.14

[105]  Pleadings have two main functions. First, to define the issues for decision so that the court can control the preparation of the case and the conduct of the trial. Second, to ensure a fair trial by putting the other party on notice of the case to be met. In the latter respect, the function of a pleading is to state the case that must be met with ‘sufficient clarity’: Banque Commerciale SA (286).

[106]  It follows from the procedural fairness aspect that attends the function of the parties’ pleadings that, as a general rule, relief is confined to that available on the pleadings: Gould v Mount Oxide Mines Ltd (in liq);15Dare v Pulham;16Banque Commerciale SA (286–288), (302–303).

[107]  It is thus an error for a trial judge to decide a case relying on reasons or grounds that were not within the ambit of the case raised on the pleadings or otherwise go beyond the issues joined between the parties at trial. Where the pleadings bring the parties to an issue the court’s function is to determine that issue and to grant relief founded on the pleadings: Banque Commerciale SA (288). Before this court Hays referred to two United Kingdom cases which confirmed the general principle, providing illustrations of its application: Al-Medenni v Mars UK Ltd17 and Satyam Enterprises Ltd v Burton.18 However, a case may be litigated at trial in a manner that is materially different from the issues as defined by the pleadings. The parties may disregard the pleadings — either confining or enlarging the issues — and fight the case on issues chosen at the trial. It is well established that where this occurs the parties cannot return to the pleadings as governing the area of contest: Gould v Mount Oxide Mines Ltd (in liq) (517).

[108]  The position is summarised by Mason CJ and Gaudron J in Banque Commerciale SA in the following passage:

[P]leadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. (286–287)

[109]  Their Honours go on to explain that, ordinarily, the question of whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted (287).

[110]  In written and oral submissions the appellants relied heavily on the High Court of Australia’s decision of Suvaal v Cessnock City Council.19

[111]  In Suvaal the appellant was riding a bicycle along a road in the respondent council’s municipality. The appellant lost control and crashed heavily into a gully. The appellant’s case was that an unidentified driver forced him off the road. He encountered potholes at the left-hand edge of the road surface. The appellant sued the Nominal Defendant. He also sued the respondent council for failing to sufficiently maintain the road edge. At trial the appellant refused to answer questions on any assumption other than that a car forced him off the road.

[112]  The trial judge, Master Harrison, rejected the appellant’s version of events. The master concluded that the accident occurred when the appellant lost concentration rather than being hit or brushed by an unidentified motor vehicle. This caused the appellant to move to the left of the road and strike the uneven surface at the edge of the road. The claim against the Nominal Defendant was dismissed as no vehicle was involved in the accident. However, judgment was entered against the respondent council.

[113]  The judgment in favour of the appellant against the respondent council was set aside on appeal. The New South Wales Court of Appeal held that the master had no proper basis for finding in favour of the appellant following the rejection of the appellant’s case regarding the unidentified driver. In the High Court the issue was the entitlement of the master to find in favour of the appellant on the basis of a version of events that the appellant did not advance and expressly rejected. By majority the High Court upheld the decision of the Court of Appeal. The majority comprised Gleeson CJ together with Heydon and Callinan JJ Callinan J wrote separately. Gleeson CJ and Heydon J agreed with Callinan J’s reasons and published their own further reasons for dismissing the appeal. McHugh and Kirby JJ dissented.

[114]  Gleeson CJ and Heydon J held that the alternative explanation for the appellant’s presence on the road edge, as found by the master, was outside the pleadings [20], [23]. Such an alternative case was not in issue at trial [24], [35]. The master was said to have rationalised the circumstances so as to generate a possible explanation for the accident which was not directly supported by any matter that emerged in the course of the trial — an explanation that the respondent council did not have an opportunity to deal with in cross-examination of the appellant [37]. Their Honours stated:

A trier of fact, confronted with divergent cases being advanced by the parties, may decline to accept either case and may proceed to make findings not exactly representing what either party said. But that does not justify the creation of an entirely new case with which the losing party had no testimonial or other evidentiary opportunity to deal. [36] (citations omitted)

[115]  In short, it was impermissible for the master to reach conclusions about the cause of the accident which the appellant had rejected and which the appellant had prevented the respondent council from testing [17] (see also [16]).

[116]  Callinan J stated that, as an operative cause, momentary inattention seemed to have been ‘entirely the invention’ of the master [145] and no more than a ‘rationalisation of what occurred’ [149]. It was not an issue in the case. Callinan J stated:

[T]he Court of Appeal had no option but to allow the appeal. The approach of the master was an incorrect one. She seemed to think that, rather than decide whether the appellant had proved the case that he sought repeatedly to make at the trial and which she concluded she was bound to reject, she was obliged to find some other explanation for the accident. This was to misunderstand the nature of the task she had to perform. [144]

[117]  Callinan J said that the respondent council was not to know or suspect that momentary inattention might be found as the cause of the accident. Had that been raised at trial the appellant would no doubt have been cross-examined about it. But, the appellant having asserted only one cause of the accident, the respondent was not bound to go ‘on an excursion’ in cross-examination to identify and refute a version of events not even hinted at by the appellant. Callinan J identified crucial matters that the respondent had no opportunity of exploring in cross-examination or submissions [147].

[118]  McHugh and Kirby JJ took a different view of how the case had been litigated. In McHugh and Kirby JJ’s view, there was no procedural unfairness in the master accepting a loss of concentration as the explanation for the accident — the parties were said to be ‘fully aware’ at trial of that hypothesis [110] (see also [117], [119]). Accordingly, McHugh and Kirby JJ’s dissent was grounded in application rather than principle. As to principle, McHugh and Kirby JJ acknowledged that, where a party participates in a trial to meet a particular case — which has been pleaded and presented in only one way — it would be unfair to decide the case on a different basis of which the losing party had no fair notice and which it had no proper opportunity to defend. This is because ‘[i]t is elementary that a party is entitled to know the issues of fact that are to be decided in a trial where these are determinative of its success or failure’ [102].

[119] Suvaal v Cessnock City Council has been applied in this court in Tep v ATS Australasian Technical Services Pty Ltd.20 There Holmes JA (Gotterson JA and Douglas J agreeing) stated:

As was observed in Suvaal, it was not the trial judge’s task to find an alternative explanation of how the accident could have occurred. Indeed, this was not simply a matter in which the trial judge arrived at a version of events where evidence was wanting; his finding as to the platform height contradicted both the pleadings and the direct evidence from both parties. [24]

[120]  Tep concerned a claim for damages for personal injuries in respect of a workplace accident. The appellant had been standing on a mobile scaffold removing asbestos. A guard rail gave way. The appellant fell backwards onto a concrete floor below. The appellant’s evidence was that the scaffold platform was 1.5 m to 1.7 m above the floor. That estimate was in accordance with the respondent’s pleading and evidence. The defence was based on whether the appellant was standing on the guardrail when he fell. However, contrary to the pleadings and the evidence, the trial judge found that the platform was only 0.5 m above the floor.

Disposition of Issue 1

[121]  The appellants’ argument on Issue 1 focused on the detail of the factual findings compared to the detail of the appellant’s pleaded case and his evidence. That, in our view, is too demanding an approach where the question of whether there has been a denial of procedural fairness is concerned with whether there has been actual unfairness or practical injustice. Issue 1 must instead be approached as a matter of substance having regard to the material fact for determination at trial in the context of the pleadings, the evidence and the trial as a whole.

[122]  There was some appreciation of this at the appeal hearing. The senior counsel for each appellant accepted, in effect, that the apparent inconsistency in the bag numbers was not dispositive of Issue 1 (appeal ts 1–6, 1–21, 1–25). That concession was correct. In any case we would not read and construe the pleas in par 13(h) – (j) of the SOC in so prescriptive a manner as to suggest that the plaintiff’s claim was confined to a personal injury resulting from tripping on ‘bag 1’ when startled by a wasp flying out of ‘bin 2’. The SOC is not referring to ‘one bin’, ‘the second bin’ and ‘the first bag’ in the same way as the primary judge designated the wheelie bins and the rubbish bags as photographed in Exhibit 16. The pleading is simply referring to the bins and the bags in a relational sense. That was made clear by senior counsel for the plaintiff in opening the case and foreshadowing the expected evidence of the plaintiff.

[123]  So far as the mechanism of the plaintiff’s injury was concerned, the material fact for determination was obscured by the narrative style of the plaintiff’s pleading in par 13 of the SOC. However, that pleading deficiency was addressed at the outset of the trial. Senior counsel for the plaintiff opened the case on the basis that the mechanism of the injury involved the plaintiff tripping over a rubbish bag after stepping backwards while emptying a wheelie bin. That, in substance, adequately framed the material fact in issue for determination at trial. The material fact in issue for determination at trial was whether the plaintiff tripped over a rubbish bag after stepping backwards while emptying a wheelie bin.

[124]  It is possible to refine the material fact in issue. Senior counsel for Hays accepted the following formulation: ‘When startled by a wasp, did the plaintiff fall on his left elbow having tripped on a bag of rubbish left on the ground after it was removed from another wheelie bin?‘ (appeal ts 1–9). Senior counsel for Civeo provided a narrower statement of the relevant question, namely: ‘Whether the trip occurred on a bag that was already deposited and therefore constituted a trip hazard?‘ (appeal ts 1–43). The variations accepted and advanced on behalf of the appellants do not differ in substance from the material fact for determination as articulated by senior counsel for the plaintiff in opening the case at trial.

[125]  The primary judge identified the material fact in issue for determination. It was described in shorthand as ‘what occurred in the incident’ [35]. His Honour accepted the plaintiff’s evidence as to how the incident occurred ‘in a general sense’ [66]. This was the ‘basic version’ of emptying wheelie bins, placing rubbish bags on the ground, a wasp coming towards the plaintiff from an emptied bin, and the plaintiff stepping back and falling after tripping on a rubbish bag [95].

[126]  Accordingly, in substance the primary judge identified and determined the material fact in issue at trial as to the mechanism of the plaintiff’s injury.

[127]  The appellants’ reliance on Suvaal is misplaced. The present case does not involve an entirely new case as to the operative cause of the accident. In Suvaal the majority of the High Court were satisfied that momentary loss of concentration was never raised as an operative cause of the accident. By contrast, the present case was always concerned with whether the plaintiff had been startled by a wasp, stepped backwards, tripped on a rubbish bag left on the ground and fallen onto his left elbow. There were, in that respect, divergent cases — notably Hays denied that the plaintiff tripped on a rubbish bag left on the ground. Based on the evidence the primary judge did not accept the entirety of any party’s case as to the specific circumstances of the accident. The passage from Gleeson CJ and Heydon J’s reasons in Suvaal as reproduced at [114] shows that the primary judge was not in error in declining to accept the entirety of any party’s case and instead proceeding to make findings that were not exactly in conformity with any party’s contended for version of events. It was open to do so provided that the primary judge did not create an entirely new case which the appellants had no opportunity to deal with.

[128]  There was no denial of procedural fairness in the primary judge accepting the ‘basic version’ of the incident having accepted the plaintiff’s evidence as to how the incident occurred ‘in a general sense’. That involved the primary judge doing no more than assessing and coming to a conclusion on the material fact in issue for determination at trial. Nor was there a denial of procedural fairness in the primary judge making the more detailed findings at primary reasons [93], [94] and [100](h), (i) and (k).

[129]  It is well established that if, at the conclusion of the evidence, facts have emerged that — if accepted — establish a cause of action in negligence sued on, the tribunal of fact may determine the claim on the basis of that evidence (subject to any necessary amendments to the pleadings): Leotta v Public Transport Commission of New South Wales.21 Where there is no departure from the pleaded cause of action a disconformity between the evidence and earlier particulars of the relevant material fact will not disentitle the party to a judgment based on the evidence: Mummery v Irvings Pty Ltd;22Dare v Pulham (664). So, in an action for negligence based on a specified breach of duty and particularised transgressions, the defendant will not defeat the claim by litigating the trial on the basis that the claimant’s injury resulted from some other breach of the same duty.

[130]  The appellants identified specific inconsistencies. These concerned details such as the number of wheelie bins that had been emptied, whether the wasp had flown out of a bin while it was on its side and the plaintiff was removing the rubbish bag, the number of backwards steps taken and which bag the plaintiff had tripped on. In the context of this case, these were no more than matters of particulars of the essential material fact already identified. In determining whether the plaintiff tripped over a rubbish bag after stepping backwards while emptying a wheelie bin it was not necessary that the primary judge be satisfied as to each of the matters as particularised. While, undoubtedly, such inconsistencies were relevant to the overall assessment of the credibility and reliability of the plaintiff’s evidence, there was no denial of procedural fairness in deciding the case on the basis of the evidence as it emerged at the trial where the primary judge did no more than determine whether the plaintiff tripped over a rubbish bag after stepping backwards while emptying a wheelie bin.

[131]  The appellants sought to make much of the primary judge not having raised the possibility of the impugned factual findings at or following the trial. However, as will be seen, the primary judge afforded the appellants a proper opportunity to make submissions about the inferences to be drawn from the photograph in Exhibit 16. In any case the appellants overstate the extent of the primary judge’s obligation.

[132]  A litigant is, ordinarily, entitled to have brought to its attention the critical issues or factors on which a decision is likely to turn so as to give the litigant an opportunity to deal with those issues or factors: Commissioner for ACT Revenue v Alphaone Pty Ltd.23 However, a decision-maker is not usually required to disclose to a person to whom procedural fairness must be accorded the decision-maker’s mental processes, provisional views or proposed conclusions before a final decision is made: Commissioner for ACT Revenue v Alphaone Pty Ltd (591), (592); Apache Northwest Pty Ltd v Agostini [No 2].24 To the contrary:

Generally speaking in litigation, the parties must anticipate combinations and permutations of various findings and adduce evidence and make submissions at the trial on all the potential findings of fact on the issues litigated … [although] procedural fairness may require the judge to hear the parties further if certain matters emerge in the judge’s consideration of the case after trial which the judge regards as potentially dispositive but in relation to which, in all the circumstances, it is to be inferred that the parties did not have a proper opportunity to address at trial.25

[133]  It may be necessary, in a particular case, for a proposed conclusion to be disclosed and for a litigant likely to be adversely affected by that conclusion to be given an opportunity to make submissions on that adverse conclusion. That may be the case where the adverse conclusion ‘could not reasonably be expected’: Victims Compensation Fund Corporation v Nguyen;26 or the adverse conclusion would not ‘obviously be open’ on an evaluation of the material known to be before the decision-maker: Commissioner for ACT Revenue v Alphaone Pty Ltd (592). These are situations where, to use McHugh J’s words in Ex parte Aala, the risk of such an adverse conclusion does not ‘necessarily inhere’ in the issues to be decided.

[134]  Whether the circumstances require that the decision-maker raise a proposed conclusion with the parties involves matters of degree in the exercise of evaluative judgment.

[135]  The appellants complained about the primary judge giving judgment for the plaintiff in circumstances where his Honour found that the incident occurred inconsistently with the version given in evidence by the plaintiff. Two initial points should be made. First, the primary judge accepted the plaintiff’s evidence as to how the incident occurred ‘in a general sense’ [66] and specifically accepted the plaintiff’s ‘basic version’ of the incident [95]. No ground of appeal expressly challenges those findings. Second, for reasons already given, there was no denial of procedural fairness in the primary judge accepting the ‘basic version’ of the incident having accepted the plaintiff’s evidence as to how the incident occurred ‘in a general sense’.

[136]  Senior counsel for Hays accused the primary judge of parsing the plaintiff’s evidence by severing material aspects of it and distorting its substance to arrive at a version of the incident that was never pleaded and in any case was a version that was rejected by the plaintiff (compare Suvaal [14]). We disagree. The substance of the plaintiff’s evidence was that, when startled by a wasp, he stepped backwards and tripped on a rubbish bag he had left on the ground. The primary judge accepted that evidence. The primary judge rejected other aspects of the plaintiff’s evidence as to the incident where that evidence was inconsistent with inferences arising from the objective circumstances as discerned from the photograph in Exhibit 16. In the latter respect it was entirely orthodox for the primary judge to reason to a conclusion based on objectively established facts and the apparent logic of events. It was also entirely orthodox for the primary judge to accept one aspect of the plaintiff’s evidence but reject another. To do so did not involve a distortion of the kind in Suvaal— one where the respondent council was given no opportunity to deal with an entirely new case created by the master’s rationalisation to explain the accident.

[137]  No complaint could be made about the primary judge not informing the appellants that his Honour did not accept the proposition that the plaintiff had to prove his pleaded case and version of the incident with exactitude. That is not the law. In that respect, for reasons already given, Hays’ closing submissions overstated what the plaintiff was required to establish. In any case the primary judge questioned that approach saying also that: ‘It’s clear that [the plaintiff] tripped and fell and injured his elbow’ (ts 2–42).

[138]  Apart from the ‘basic version’ (referred to in primary reasons [93] as the ‘consistent version’) the impugned findings in primary reasons [93], [94] and [100](h), (i) and (k) comprise the following: (1) the plaintiff removed bin liners from three wheelie bins leaving the rubbish bags on the ground; (2) the plaintiff removed the bin liner from the fourth rubbish bin, also leaving it on the ground, and stood the bin back up placing a bin liner on the top left-hand corner of the bin; (3) a wasp came from within or within the vicinity of the fourth bin towards the plaintiff; (4) the wasp caused the plaintiff to step backwards; and (5) as the plaintiff moved backwards, away from the wasp, his left foot tripped on the third garbage bin, the plaintiff fell to the ground towards his left, and the plaintiff suffered injury to his left elbow.

[139]  It was always Hays’ case that the plaintiff pulled the liner bags out of all four wheelie bins. Moreover, in his closing address, counsel for Civeo accepted that the photographic evidence established that the plaintiff had dragged four bin liners out of four bins (ts 2–25 to 2–26). That was in circumstances where Civeo contended that the wasp came from a bin the plaintiff had emptied earlier. Senior counsel for Hays knew of these matters and was also aware that, in this regard, there was an exchange between counsel for Civeo and the primary judge as follows:

HIS HONOUR: … can I drag you back to this photo [Exhibit 4] … what inferences do I draw from it? That’s what I’m really interested in. It seems to me, you have to draw [sic] he’d in fact dragged out four bags. I think – -—

COUNSEL: Yeah.

…

COUNSEL: … the bins are standing. If he’s dragged them back backwards, there is no risk until the wasp stings him, or he gets frightened by the wasp …

…

HIS HONOUR: Well, is there any other submissions on the exhibit — well, it’s number 4. You can contrast it with the same picture as on the back of exhibit 5 and he’s — I‘ve got no difficulty accepting your submission he’s been inconsistent in his versions.

COUNSEL: Grossly inconsistent.

HIS HONOUR: It’s pretty plain. But it still seems to me, the parties are engaged on this factual dispute as to what actually occurred. And it seems to be no — little doubt that he fell, badly injured his left elbow — on his version, he tripped over a bag. There doesn’t seem to be a dispute that that occurred. The question is which bag? And is there anything in the exhibits 4 or 5 which can shed any light upon that. (ts 2–26 to 2–27)

[140]  Counsel for Civeo accepted that it was a case ‘about inferences’ (ts 2–28). In context, having regard to the interchange between the primary judge and counsel for Civeo, those were the inferences that might be drawn from the photographic evidence in Exhibits 4, 5 and 16. The primary judge had mentioned one available inference — which counsel for Civeo agreed with — and expressly sought submissions on any other available inferences. Counsel for Civeo did not mention what inferences could or could not be drawn beyond pointing out that all of the bins were standing. However, counsel for Civeo did state that as between the appellants there had been a division of work and it was intended that senior counsel for Hays would cover this area (ts 2–27).

[141]  It has been seen that Hays developed its closing submissions by reference to the photographic evidence (see [64]–[65] above). In that connection senior counsel for Hays plainly had an opportunity to deal with the inferences that might be drawn from Exhibit 16 — even more so where that very topic had been raised by the primary judge with counsel for Civeo. For example, senior counsel observed that bin 4 had its lid open and the liner bag had not been put back in properly (ts 2–53). To the extent that this was raised, and senior counsel did not go on to suggest what inferences may or may not be drawn from this circumstance, that was a forensic decision for senior counsel rather than a denial of procedural fairness on the part of the primary judge.

[142]  There was, during senior counsel for Hays’ oral submissions as to the photographic evidence, one interaction going directly to the impugned findings. The primary judge raised whether, based on Exhibit 4, it was likely that the plaintiff had tripped on bag 3 (the primary judge referring to the third rubbish bag as the one ‘closest’ or ‘at the front’). Senior counsel developed a submission to the effect that it was more likely that the plaintiff fell on the bag he was dealing with (ie bag 4) (ts 2–54).

[143]  In the circumstances, we are unable to accept the submission that there was a denial of procedural fairness because the primary judge did not raise the possibility of the impugned factual findings at or following the trial.

[144]  One of the impugned factual findings — that all four wheelie bins had been emptied — was in accordance with the appellants’ respective cases at trial. Otherwise, the primary judge afforded the appellants a proper opportunity to make submissions about the inferences to be drawn from the photographic evidence in Exhibits 4, 5 and 16. The appellants were invited to make submissions as to the inferences to be drawn from the photograph of the accident scene. His Honour specifically raised whether it should be inferred that the plaintiff tripped over bag 3. Each of counsel for Civeo and senior counsel for Hays had noted features of bin 4 — relevantly, that it had been stood up, but its lid remained open. Plainly it was open to each of Civeo and Hays to make submissions as to what inferences, if any, should be drawn from this circumstance having regard to the other evidence. All of this was in a context where, as the primary judge observed, the parties were engaged in a factual dispute as to what in fact had occurred in respect of the incident. Hays had cross-examined the plaintiff on the photographic evidence. Both Civeo and Hays had relied on the photographic evidence, inviting the primary judge to draw inferences adverse to the plaintiff’s case.

[145]  Accordingly, in some respects the primary judge raised the relevant issue with the appellants. In one respect the issue was decided conformably with the appellants’ cases at trial. And, in all respects, the issues on which the primary judge made findings based on inferences drawn from the photographic evidence in Exhibits 4, 5 and 16 necessarily inhered in the material fact in issue for determination at trial having regard to the course of the trial including the cross-examination of the plaintiff.

[146]  The appellants also contended that, as a result of the inconsistency between the plaintiff’s version of events and the primary judge’s factual findings, the appellants lost an opportunity to test various matters. It was said this testing might have occurred by additional cross-examination of the plaintiff or expert evidence. The contention was developed by suggesting that the version of events found by the primary judge must have involved more than a single step backwards. Also, it would not have involved the plaintiff dragging a bag backwards while in a crouching or squatting position.

[147]  We are not satisfied that such considerations might have had a possible bearing on issues going to the appellants’ liability. The first amounts to no more than whether there were several backwards steps rather than a single backwards step. In context that is no more than a slight difference in the mechanism of the injury. That is also the case with the second consideration. The appellants did not explain how a person who is standing upright is in a better or worse position to avoid a trip hazard when moving backwards than a person who is crouching over or squatting and dragging a rubbish bag out of a bin. In both respects the appellants do no more than assert a denial of procedural fairness. Beyond mere assertion the appellants have not demonstrated — or even attempted to demonstrate — that they have been deprived of the possibility of a successful outcome.

[148]  There is a further difficulty with the contention that the appellants lost an opportunity to test various matters. It is premised on an assumption that the factual findings that were made, based on the photographic evidence in Exhibits 4, 5 and 16, were outside the reasonable contemplation of the parties. We do not accept the validity of that assumption.

[149]  The plaintiff was cross-examined extensively based on various inferences that were grounded in the photographic evidence. There does not appear to have been any cross-examination on the basis that wheelie bin 4 was standing with its lid open (although senior counsel for Hays did point out that feature to the plaintiff in the passage of cross-examination at [60] above). That circumstance stands as a considerable hurdle to Hays’ thesis that the plaintiff fell over bag 4 while it was being dragged out of bin 4. In the circumstances posited by Hays it would reasonably be expected that bin 4 would have been on its side (with bag 4 partly removed) rather than standing upright with a bin liner draped over its open lid. In that respect the photographic evidence strongly supported the findings, as raised by the primary judge for submission in the parties’ closing addresses, that the plaintiff had emptied all four bins and it was likely that the plaintiff had tripped on bag 3.

[150]  At all times it ought reasonably to have been expected by the appellants that conclusions to that effect were open on the photographic evidence. Such findings were well open within the combinations and permutations of findings arising on the evidence. The appellants could and should have dealt with these matters in cross-examination of the plaintiff or in their evidence. Again, in our opinion, the matter complained of on appeal is something that necessarily inhered in the issues to be decided having regard to the evidentiary materials known to be available on the factual issue of whether the plaintiff tripped over a rubbish bag after stepping backwards while emptying a wheelie bin.

[151]  For these reasons Issue 1 is resolved in favour of the plaintiff, as is Issue 2 so far as it is grounded in an alleged denial of procedural fairness.

[152]  The primary judge did not deny the appellants procedural fairness in the ways suggested by the appellants. Nor did the primary judge err in fact or in law by making findings at primary reasons [93], [94] and [100](h), (i) or (k) by making findings inconsistent with the plaintiff’s pleaded case and case at trial, as well as the plaintiff’s evidence, either without raising that possibility with the appellants or at all. Hays grounds 2.1(a) and 2.2(d) – (e) fail. So too Civeo grounds 2(a), (e) and (f) fail.

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(emphasis added)

A link to the case is here.

1 Carey-Schofield v Hays & Civeo [2024] QSC 60 (primary reasons).

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5 Plaintiff’s written submissions tendered 21 March 2024 (Plaintiff’s WS) par 3.

6 Referring to Hays’ written submissions tendered 21 March 2024.

7 Civeo’s written submissions tendered 21 March 2024 par 20.

8 Civeo’s written submissions par 4.

9 Appeal ts 1–4.

10 HT v R [2019] HCA 40; (2019) 269 CLR 403 [17]–[18].

11 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 585.

12 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (Ex parte Aala) [101]. See also: Kioa v West (587); Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 (Ex parte Lam) [81], [83].

13 Assistant Cmr Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [156].

14 Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 286 (Banque Commerciale SA).

15 Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 518.

16 Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 664.

17 Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041 [21].

18 Satyam Enterprises Ltd v Burton [2021] EWCA Civ 287 [36].

19 Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449 (Suvaal).

20 Tep v ATS Australasian Technical Services Pty Ltd [2013] QCA 180; [2015] 2 Qd R 234.

21 Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666 668.

22 Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 110–111.

23 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 590–592.

24 Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 [217]–[218].

25 McKay v Cmr of Main Roads [2013] WASCA 135 [156].

26 Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; (2001) 52 NSWLR 213 [40].

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