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).)
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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.
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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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In King Crude Carriers SA & Ors v Ridgebury November LLC & Ors [2025] UKSC 39 (12 November 2025), the Supreme Court of the United Kingdom rejected the continued operation in the law of England and Wales (cf Scotland) of the longstanding principle in Mackay v Dick (1881) 6 App Cas 251. The gravamen of that principle operates such that where a party to a contract wrongfully prevents the fulfilment of a precondition to an obligation thereunder – in the case at hand, an obligation to set up an account for the payment by it of a contract deposit – such condition is treated as having been fulfilled. In rejecting the ongoing authority of the decision of the House of Lords in Dick – expressing itself in graphic language – the court wrote at [66]:
…[T]he various formulations or explanations of the Mackay v Dick principle of law are all fictional….The language of there being a deemed performance, or a deemed waiver, or a quasi-estoppel immediately makes that clear. In reality, there has been no performance, and the ingredients of a true waiver or of a true estoppel (eg a representation plus reliance) have not been satisfied. Fictions tend to obscure transparent reasoning and, wherever possible, should be removed. Jeremy Bentham famously despised fictions. In his words (see J Bowring (ed), The Works of Jeremy Bentham, (1962), vol 5, p 92): “in English law, fiction is a syphilis, which runs in every vein, and carries into every part of the system, the principle of rottenness.” Lord Nicholls, in his dissenting speech in the economic tort case of OBG v Allen; Douglas v Hello! Ltd (No 3) [2007] UKHL 21; [2008] AC 1, paras 228–229, said: “fictions, of their nature, conceal what is going on. They are a pretence … I would like to think that, as a mature legal system, English law had outgrown the need for legal fictions.” And in Forsyth-Grant v Allen [2008] EWCA Civ 505; [2008] 2 EGLR 16, at para 45, looking at “waiver of tort” in the context of damages for the tort of nuisance, Toulson LJ remarked that the “modern tendency has been to eschew resort to legal fictions”. At the very least, a fiction has to be properly explained. But there is no convincing explanation for Mackay v Dick as a principle of law. (emphasis added)
Importantly, in King Crude, there was no express provision – as, for example, exists in the standard REIQ contract – for recovery of the unpaid deposit. Nor was it in dispute– on account of the breach of the defendant for failure to set up the account to hold the deposit – that the defendant was liable to the plaintiff for damages for breach of the contract, which lead to contract termination, albeit the defendant contended that in the circumstances the plaintiff had suffered no loss.
It will be of interest to see what the High Court makes of this alteration of UK common law contract principle.
Lord Hamblen and Lord Burrows – Lord Reed P, Lord Hodge DP and Lord Stephens agreeing – wrote:
1. Introduction
1. The focus of this appeal is on the decision of the House of Lords in the Scottish case of Mackay v Dick (1881) 6 App Cas 251. Sitting as a panel of three, there were two leading speeches in the House of Lords in that case. The speech of Lord Blackburn stands as uncontroversial authority for there being an implied duty to co-operate whereby contracting parties are obliged to co-operate to ensure the performance of their bargain. In contrast, the speech of Lord Watson is controversial. That speech indicates that there is a principle (or rule or doctrine) of law that, where a party wrongfully prevents the fulfilment of a condition precedent (ie a pre-condition) to that party’s debt obligation (eg, as in that case, the duty to pay for goods being bought), that condition is treated as being fulfilled. The status of that “deemed fulfilment” principle, or alternative formulations of the same idea such as the condition being “dispensed with” or “deemed waiver” or “quasiestoppel”, has long been a matter of debate. We shall refer to that principle, or alternative formulations of it, as the “Mackay v Dick principle of law”. This appeal raises the issue of whether there is such a principle in English law (without prejudice to the position in Scotland). Very closely related to that is the question whether, even if there is no such principle of law, contractual interpretation or an implied term achieves much the same outcome.
2. This issue arises in the context of contracts for the sale of three vessels on the Norwegian Saleform 2012, with amendments and additions. The sellers, who are the respondents, are (under each contract respectively) Ridgebury November LLC, Ridgebury Sierra LLC, and Makronissos Special Maritime Enterprise (the “Sellers”). The buyers, who are the appellants, are King Crude Carriers SA, Prince Crude Carriers SA, and Zenon Crude Carriers SA (the “Buyers”). Under the contracts, the Buyers were obliged to lodge a deposit of 10% of the purchase price with a deposit holder. The deposit was required to be paid within three banking days of the deposit holder confirming in writing that the deposit account had been opened. The parties were obliged to provide all necessary documentation for the opening of the account. In breach of contract, the Buyers never did so. The Sellers terminated the three contracts and claimed the deposits in debt, relying on Mackay v Dick. The Buyers contended that the Sellers’ sole remedy was in damages and that no loss had been suffered. The Sellers’ claim succeeded in arbitration, failed on appeal to the Commercial Court, but succeeded before the Court of Appeal. The Buyers now appeal to the Supreme Court arguing, primarily, that there is no Mackay v Dick principle of law in England and Wales and that contractual interpretation or an implied term cannot assist the Sellers in their debt claim in this case.
3. Both parties also seek to raise secondary cases. The Buyers contend that, even if the right to the deposits had accrued, on the true interpretation of the contracts the deposits were not to be forfeited on termination by the Sellers. This requires them to contend that the Court of Appeal’s decision to the contrary in Griffon Shipping LLC v Firodi Shipping Ltd (“The Griffon”) [2013] EWCA Civ 1567; [2014] 1 Lloyd’s Rep 471 was wrong.
4. The Sellers, in their secondary case, contend that the deposits accrued due as a debt when the contracts were made and that the stipulated conditions precedent went only to the time for payment of an already accrued debt. Put another way, it is said that the Buyers’ breach was a failure in the machinery of payment and did not prevent the accrual of the debt. This arguably requires the Sellers to contend that the Court of Appeal’s decision in Damon Compania Naviera SA v Hapag-Lloyd International SA (“The Blankenstein”) [1985] 1 WLR 435 was wrong. It was there held, unanimously on this point, that the right to the deposit did not accrue until after the signing of a Saleform contract.
2. Factual background
5. Between 28 and 30 April 2020, the Sellers and the Buyers concluded three Memoranda of Agreement (the “MOAs”) for the sale and purchase of three vessels, the Makronissos, the Ridgebury Astari, and the Ridgebury Alina L. Except for price, the three MOAs were on materially identical terms.
6. The lodging of the deposit was governed by clause 2 of the MOAs which provided (with amendments to the Saleform marked in strikethrough or italicised):
“2. Deposit
As security for the correct fulfilment of this Agreement the Buyers shall lodge a deposit of 10% (ten per cent) or if left blank, 10% (ten per cent) of the Purchase Price (the “Deposit”) in an interest-bearing account for the Parties with the Deposit Holder within three (3) Banking Days after the date that:
(i) this Agreement has been signed by the Parties and exchanged in original or by email or telefax; and
(ii) the Deposit Holder has confirmed in writing to the Parties that the account has been fully opened and ready to receive funds.
The Deposit shall be released in accordance with joint written instructions of the Parties. Interest, if any, shall be credited to the Buyers. Any fee charged for holding and releasing the Deposit shall be borne equally by the Parties. The Parties shall provide to the Deposit Holder all necessary documentation to open and maintain the account without delay.” The Deposit Holder was defined as being Holman, Fenwick, Willan Greece (“the Deposit Holder”).
7. The consequences of failing to lodge the deposit were addressed in clause 13 which provided:
“13. Buyers’ default
Should the Deposit not be lodged in accordance with Clause 2 (Deposit), the Sellers have the right to cancel this Agreement, and they shall be entitled to claim compensation for their losses and for all expenses incurred together with interest.
Should the Purchase Price not be paid in accordance with Clause 3 (Payment), the Sellers have the right to cancel this Agreement, in which case the Deposit together with interest earned, if any, shall be released to the Sellers. If the Deposit does not cover their loss, the Sellers shall be entitled to claim further compensation for their losses and for all expenses incurred together with interest.”
8. Clause 14 addressed “Sellers’ default” and provided the Buyers with an option to cancel in the event of such default. If the Buyers elected to cancel, “the Deposit together with interest earned, if any, shall be released to them immediately”. Clause 16 was an English law and London arbitration clause.
9. Following the signature of the three MOAs at the end of April 2020, in breach of clause 2 of each MOA, the Buyers failed to provide the Deposit Holder with the necessary documentation to enable the accounts to be opened without delay. For that reason, the Deposit Holder never confirmed that the accounts had been opened and were ready to receive funds, and the Buyers (by reason of their own conduct) could not, and did not, lodge the deposits.
10. In late May and early June 2020, the Sellers purported to cancel (ie to terminate) the MOAs under clause 13 of the Saleform on the grounds that the deposits had fallen due and that the Buyers, having failed to provide the necessary documentation, had not paid those deposits.
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5. Issue 1 – Where a party (i) has an obligation to make a payment when a precondition is fulfilled, (ii) has an obligation to fulfil the pre-condition but (iii) in breach of contract, fails to do so, is the pre-condition deemed to be fulfilled—or Page 7 otherwise treated as inapplicable or dispensed with—so that the other party can claim the payment as a debt? Or must the other party’s claim be for damages only?
(1) Is there a Mackay v Dick principle of law (in English law)?
(i) Mackay v Dick
22. In Mackay v Dick (1881) 6 App Cas 251 the defender buyer, who was involved in the construction of a railway, entered into a contract (by exchange of letters) with the pursuer seller for the manufacture and purchase of a steam-operated digging machine. The buyer wanted the machine for the purpose of excavating a long railway cutting and thereby saving the cost of manual labour. One of the terms of the contract was that the machine should be capable of digging out at least 350 cubic yards of clay in a day and that that capability should be tested at a trial at a specified railway cutting belonging to the buyer. It was agreed that, if the trial was successful, the buyer would keep the machine and pay the agreed price. If the trial failed, the seller would remove the machine. Although the machine was delivered as agreed, the buyer failed to provide a “properly opened-up” face at the railway cutting so that the trial of the machine could not go ahead. It was held by the House of Lords (as a panel of three) that the seller was entitled to the agreed price.
23. Lord Watson’s reasoning was that payment of the price for the machine was conditional on the machine satisfying the buyer’s specified requirements at the trial. But as the trial did not go ahead because of the buyer’s default, that condition should be treated as if it had been fulfilled. He said at p 270:
“The [sellers] were only entitled to receive payment of the price of the machine on the condition that it should be tried at a proper working face provided by the [buyer], and that on trial it should excavate a certain amount of clay or other soft substance within a given time. They have been thwarted in the attempt to fulfil that condition by the neglect or refusal of the [buyer] to furnish the means of applying the stipulated test; and their failure being due to his fault, I am of opinion that, as in a question with him, they must be taken to have fulfilled the condition. The passage cited by Lord Shand [in the Inner House] from Bell’s Principles (para 50) to the effect that, ‘If the debtor bound under a certain condition have impeded or prevented the event, it is held as accomplished. If the creditor had done all that he can to fulfil a condition which is incumbent on himself, it is held sufficient implement,’ expresses a doctrine, borrowed from the civil law, which has long been recognised in the law of Scotland, and I think it ought to be applied to the present case.”
24. Lord Blackburn’s reasoning was different. In his view, even though not expressly stated, a contract should generally be construed as including a duty on each party to do what is necessary on its part in order for the contract to be carried out. In modern parlance, there is an implied duty of co-operation. Under the terms of the contract in question, the buyer was bound to keep and pay for the machine that had been delivered unless it subsequently failed the trial; and that subsequent condition (failure of the trial) did not, and could not, occur because of the buyer’s own default (in breach of its duty of cooperation) in not allowing the trial to go ahead. Lord Blackburn said, at pp 263–264:
“I think I may safely say, as a general rule, that where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect. … the Defender, having had the machine delivered to him, was by his contract to keep it, unless on a fair test according to the contract it failed to do the stipulated quantity of work, in which case he would be entitled to call on the Pursuers to remove it. And by his own default he can now never be in a position to call upon the Pursuers to take back the machine, on the ground that the test had not been satisfied, he must, as far as regards that, keep, and consequently pay for it.” Lord Selborne LC, at p 272, agreed with both speeches.
25. It will be apparent that there are two significant differences between the two main speeches. First, Lord Watson regarded success at the trial as a condition precedent to payment, whereas Lord Blackburn reasoned that there was a condition subsequent that the buyer did not need to pay if the machine failed the trial. Secondly, and most importantly, Lord Watson’s reasoning was that, by reason of the buyer’s default, there was a deemed fulfilment of the condition precedent that the machine must be successful at the trial. In contrast, Lord Blackburn did not rely on any such deemed fulfilment. Rather the condition subsequent (failure of the trial) simply did not occur so that the buyer was bound to pay for the machine.
26. It follows that, because he did not rely on any deemed fulfilment of a condition, there is nothing controversial about Lord Blackburn’s reasoning in Mackay v Dick. Instead, his judgment is well known for its path-breaking recognition of an implied duty of co-operation. In contrast, it was Lord Watson’s reliance on there being a deemed fulfilment of a condition, by reason of the buyer’s default, that is being focused on when one refers to the Mackay v Dick principle of law.
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(vii) The main reasons why, in our view, Mackay v Dick is not a principle of law in English law
61. Having surveyed the most relevant case law and academic commentary, it is our view that Mackay v Dick is not a principle of law in English law. This is for the following six main reasons.
62. First, Lord Watson in Mackay v Dick did not cite or rely upon any English law authorities in support of the principle stated by him. Rather he relied upon what he understood to be “a doctrine borrowed from the civil law” (see para 23 above). Lord Blackburn’s reasoning was different and Lord Selborne LC’s speech is ambiguous since he agreed with both speeches.
63. Secondly, the English law authorities do not speak with one voice. While the four main cases relied on by Mr Kenny (Hotham, Panamena, Cory and Abacha) support such a principle of law, Scott J in Thompson v ASDA-MFI Group plc and Millett LJ in Little v Courage have voiced persuasive views to the contrary. Moreover, it is possible that, in those four main cases relied on by Mr Kenny, the same result could have been reached through the application of the law on damages for breach of contract rather than the law on debt.
64. Thirdly, such a principle of law is contradicted by Colley. As McCardie J recognised, it would fundamentally undermine the law on contracts for the sale of goods (and it would appear also for the sale of land) if Mackay v Dick were to be applied in respect of a failure to fulfil a condition precedent to the passing of property. At the very least, therefore, and in order to avoid what McCardie J referred to as “extraordinary” and “far reaching” consequences, one would have to cut back the ambit of the Mackay v Dick principle of law. Indeed, as Mr Eaton submitted, one can think of many other types of contract (eg the payment of freight in a voyage charter) where the application of the Mackay v Dick principle of law would undermine the established law as to when a debt accrues. But it is unclear how one could achieve such a cut back in a principled manner and without resorting, for example, to the particular intentions of the parties. In a similar vein, it should be noted that the formulations of the principle in cases such as Hotham and Panamena are very wide ranging and give no indication that any such principle of law must have some limits.
65. Popplewell LJ in the Court of Appeal recognised that there must be limits and formulated the principle in terms which recognised four broad exceptions (see para 16 above). But the application and rationale of those exceptions are uncertain. As Mr Eaton submitted, a supposed general rule which has to be stated in terms which significantly but uncertainly qualify and curtail it does not make for a robust principle of law.
66. Fourthly, the various formulations or explanations of the Mackay v Dick principle of law are all fictional. Rix LJ explicitly recognised this in Abacha. The language of there being a deemed performance, or a deemed waiver, or a quasi-estoppel immediately makes that clear. In reality, there has been no performance, and the ingredients of a true waiver or of a true estoppel (eg a representation plus reliance) have not been satisfied. Fictions tend to obscure transparent reasoning and, wherever possible, should be removed. Jeremy Bentham famously despised fictions. In his words (see J Bowring (ed), The Works of Jeremy Bentham, (1962), vol 5, p 92): “in English law, fiction is a syphilis, which runs in every vein, and carries into every part of the system, the principle of rottenness.” Lord Nicholls, in his dissenting speech in the economic tort case of OBG v Allen; Douglas v Hello! Ltd (No 3) [2007] UKHL 21; [2008] AC 1, paras 228–229, said: “fictions, of their nature, conceal what is going on. They are a pretence … I would like to think that, as a mature legal system, English law had outgrown the need for legal fictions.” And in Forsyth-Grant v Allen [2008] EWCA Civ 505; [2008] 2 EGLR 16, at para 45, looking at “waiver of tort” in the context of damages for the tort of nuisance, Toulson LJ remarked that the “modern tendency has been to eschew resort to legal fictions”. At the very least, a fiction has to be properly explained. But there is no convincing explanation for Mackay v Dick as a principle of law.
67. Fifthly, we regard Scott J as being correct when he observed in Thompson v ASDA-MFI Group plc that the English law of contract in this area proceeds on the basis of the terms of the contract, express and implied, and their proper interpretation rather than by way of fictional fulfilment of a condition precedent. This is consistent with the importance which English law attaches to freedom of contract, and to the application and enforcement of the terms of the bargain which the parties have made. This promotes certainty and predictability, which are important considerations, especially in the commercial law context.
68. Sixthly, the consequence of rejecting Mackay v Dick as a principle of law does not lead to injustice. Subject to terms to the contrary, where a condition precedent has not been fulfilled because of the debtor’s breach of contract, that breach is appropriately and adequately dealt with in English law through the claimant’s remedy in damages. Those damages aim to compensate the claimant by putting it into as good a position as if the contract had been performed, subject to limitations such as mitigation and remoteness. There is no good reason to strain to uphold a claim for debt where, as illustrated by this case, this involves disregarding the terms of the contract and where, in contrast to damages, allowing the debt claim may exceed the claimant’s net loss.
69. In the light of our rejection of Mackay v Dick as a principle of law, we move on to consider whether the Sellers can here succeed by relying on Mackay v Dick not as a principle of law but as an aid to contractual interpretation or as based on an implied term. Both interpretation and the implication of terms (by fact) may be said to rest on the objective intention of the parties, but it was made clear in Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72; [2016] AC 742 (“Marks and Spencer”) that they are different (and, it would appear, sequential) techniques. In simple terms, interpretation is concerned with what is there in the express terms of the contract whereas the implication of terms inserts into the contract what is not already there.
(2) Contractual interpretation?
70. Popplewell LJ’s reasoning in the Court of Appeal was that the juridical basis of Lord Watson’s reasoning in Mackay v Dick was presumed contractual intention and the maxim that a party should not be entitled to take advantage of its own wrong.
71. In support of this approach Mr Kenny relied on Lewison, The Interpretation of Contracts, 8th ed (2023), at para 7.108 in which it is stated:
“A contract will be interpreted so far as possible in such a manner as not to permit one party to it to take advantage of his own wrong.This principle is not a rule of law; rather it is an aspect of the principle of interpretation that leans against interpretations that produce unreasonable or absurd consequences that could not have been intended. The contractual intention is still to be decided by reference to the ordinary principles applicable to the interpretation of contracts.” (Original emphasis.)
72. Mr Kenny also relied on a number of cases cited by Lewison and, in particular, Rede v Farr (1817) 6 M & S 121, New Zealand Shipping v Société des Ateliers et Chantiers de France [1919] AC 1 (“New Zealand Shipping”), Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180 (“Cheall v Apex”) and Alghussein Establishment v Eton College [1988] 1 WLR 587. Lest there be any confusion, it should be noted at the outset that, in the first two cases, where the language used includes that the contract is “void”, it is clear from the context that what is meant by “void” is that the contract is brought to an end (in modern terminology is terminated) and not that the contract never existed.
73. In Rede v Farr it was a term of a lease that if the rent was not paid for 40 days, the lease “shall cease, determine and be utterly void”. The lessee failed to pay the rent for more than 40 days and sought to rely on this provision to claim that the lease was thereby determined. It was held that he was not entitled to do so. Lord Ellenborough CJ stated, at p 124:
“In this case, as to this proviso, it would be contrary to an universal principle of law, that a party shall never take advantage of his own wrong, if we were to hold that a lease, which in terms is a lease for twelve years, should be a lease determinable at the will and pleasure of the lessee; and that a lessee by not paying his rent should be at liberty to say that the lease is void.”
74. In New Zealand Shipping it was a term of a shipbuilding contract that, in the event of France becoming engaged in a European war, if the French shipbuilder were unable to deliver the vessel within 18 months of the completion date then “this contract shall become void”. It was held by the House of Lords that the contract became “void” and was thereby brought to an end in circumstances where this had not been caused by any wrongful act or default on the part of the shipbuilder. Lord Ellenborough’s judgment in Rede v Farr was cited with approval and Lord Atkinson stated, at p 9:
“if the stipulation be that the contract shall be void on the happening of an event which one or either of them can by his own act or omission bring about, then the party, who by his own act or omission brings that event about, cannot be permitted either to insist upon the stipulation himself or to compel the other party, who is blameless, to insist upon it, because to permit the blameable party to do either would be to permit him to take advantage of his own wrong …”
75. In Cheall v Apex Lord Diplock referred to New Zealand Shipping and summarised the applicable principle as follows, at pp 188–189:
“In the course of the speeches, which are not entirely consistent with one another, reference was made by all their Lordships to the well known rule of construction that, except in the unlikely case that the contract contains clear express provisions to the contrary, it is to be presumed that it was not the intention of the parties that either party should be entitled to rely upon his own breaches of his primary obligations as bringing the contract to an end, i e as terminating any further primary obligations on his part then remaining unperformed. This rule of construction, which is paralleled by the rule of law that a contracting party cannot rely upon an event brought about by his own breach of contract as having terminated a contract by frustration, is often expressed in broad language as: ‘A man cannot be permitted to take advantage of his own wrong.’”
76. Both Rede v Farr and New Zealand Shipping concerned reliance on a contractual provision bringing the contract to an end by rendering it void. Alghussein Establishment v Eton College concerned reliance on a provision conferring a contractual benefit. An agreement between a landowner and a developer provided that a 99-year lease would be granted to the developer “if for any reason due to the wilful default of the tenant [ie the developer] the development shall remain uncompleted” on a certain date. It seems clear that the word “not” had been inadvertently omitted, but the trial judge felt that he could not proceed on that basis in the absence of a claim for rectification. The developer claimed to be entitled to the lease under this provision in circumstances where the failure to complete the development was due to its wilful default. The House of Lords held that it was not so entitled. In so concluding, Lord Jauncey referred to and relied upon Rede v Farr, New Zealand Shipping and Cheall v Apex. He held that the principle stated in those cases equally applied to a provision under which a party claimed the right to enjoy a contractual benefit because of his wrong. He said, at p 594:
“Although the authorities to which I have already referred involve cases of avoidance, the clear theme running through them all was that no man can take advantage of his own wrong. There was nothing in any of them to suggest that the foregoing proposition was limited to cases where the parties in breach were seeking to avoid the contract and I can see no reason for so limiting it. A party who seeks to obtain a benefit under a continuing contract on account of his breach is just as much taking advantage of his own wrong as is a party who relies on his breach to avoid a contract and thereby escape his obligations.”
77. In Chitty on Contracts, 35th ed (2024), at para 16-115, these cases (and others) are cited in support of the following proposition:
“It has been said that, as a matter of construction, unless the contract clearly provides to the contrary it will be presumed that it was not the intention of the parties that either should be entitled to rely on their own breach of duty to avoid the contract or bring it to an end or to obtain a benefit under it.”
78. In the light of the modern developments in the approach to contractual interpretation (see, eg, Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, Arnold v Britton [2015] UKSC 36; [2015] AC 1619, and Wood v Capita Insurance Services Ltd [2017] UKSC 24; [2017] AC 1173) it would appear that the above cases supporting the presumption that the parties did not intend a party to profit from its own breach, are best rationalised as ones where that presumption reflects the objective intention of the parties in the relevant context. But in any event, we agree with Chitty that, as a matter of authority, the cases on the presumption are all concerned with a claimed entitlement to treat the contract as being at an end or to obtain a benefit under it. They do not support any wider presumption that a party may not take advantage of its own wrong. There are many contractual circumstances in which a party may do so. This is most obviously illustrated by the principle that damages for breach of contract are to compensate the claimant and not to punish the defendant and, subject to rare exceptions, damages or an account of profits are not awarded to strip profits made by the defendant’s breach. Contract law permits efficient breach and the defendant may therefore profit from its wrong.
79. In the present case the Buyers are not relying on their own breach of contract to treat the contract as being at an end or to claim a benefit under it. They are not using it in order to found or to invoke any right under the contract. As Dias J said at first instance at para 99: “Far from deriving any benefit, Buyers’ breach exposed them to a liability in damages. Nor would they be rid of the contract, since that depended on whether or not Sellers elected to cancel.” Put another way, the Buyers’ reliance on the terms of clause 2 is purely defensive. They acknowledge that they are liable to pay damages but contend that to claim in debt the Sellers must show, and they cannot, that the pre-conditions set out in clause 2 have been satisfied. That is not comparable to any of the cases on interpretation principally relied upon by the Sellers (see paras 72–76 above) which are clearly distinguishable. In these circumstances the maxim that a party cannot take advantage of its own wrong is of no assistance in interpreting the contracts in this case. It is not a principle of interpretation of universal application, as the Court of Appeal acknowledged (para 79). More generally, applying the modern objective and contextual approach to contractual interpretation, we do not consider that the correct interpretation of the express pre-conditions in this case is that they do not need to be satisfied where the Buyers have defaulted.
80. Mr Kenny advanced a further and related argument that, unless the MOA is interpreted as not requiring the pre-conditions to be satisfied, unreasonable and absurd consequences follow. He submitted that the Buyers’ reading of clause 2 requires one to accept that the MOA: (i) requires the Buyers to pay the deposit upon the Deposit Holder’s confirmation; and (ii) requires the Buyers to provide documents to enable the Deposit Holder to give such confirmation; but (iii) allows the Buyers to avoid (i) by breaching (ii). That, he submits, is not a realistic interpretation. It permits the Buyers to adopt a “cunning plan” to avoid its agreed obligations. He relies on the concurring judgment of Nugee LJ in the Court of Appeal in this case and, in particular, his statement at para 101:
“It cannot have been the parties’ intention that the buyer could avoid his obligation to pay the deposit by the simple expedient of deliberately failing to comply with what is on any view a subsidiary obligation to sign the necessary forms to open the account.”
81. The difficulty with this argument is that it means that the parties cannot have intended what they have stated and agreed. Leaving aside the Sellers’ case on Issue 3, clause 2 makes the Buyers’ obligation to lodge the deposit within three Banking Days conditional on: (i) the parties signing and exchanging the MOA; (ii) the parties providing the Deposit Holder with all necessary documentation to open the account; and (iii) the Deposit Holder confirming that the account is fully open and ready to receive funds. This is what clause 2 states. The Sellers’ case is that there are, however, unstated circumstances in which those pre-conditions do not apply. If so, that would seem to require some term to be implied. It does not follow from the wording of clause 2.
82. As Mr Eaton submitted, there is nothing extravagant about the proposition that a conditional obligation applies according to its terms. The parties should be understood to mean what they say. The Sellers’ case on interpretation means that a payment obligation subject to a promissory condition requires payment to be made regardless of whether the condition is performed. But if the parties intended it to be paid regardless, they would not have made it conditional. The Sellers’ case effectively strikes out the condition and rewrites the terms of the contract. It should also be stressed that it is always open to the parties to include a term in the contract making clear that a condition precedent to a debt obligation does not apply where the failure of the condition precedent is caused by the debtor’s breach.
83. A similar point arose in The Blankenstein in which it was held that signing the MOA was a pre-condition to the deposit being payable. As Robert Goff LJ observed (at p 456):
“I realise that the effect is that the seller does not get the protection of the deposit until signature; and that the buyer, by repudiating the contract before signature of the memorandum of agreement, can escape from the consequence of forfeiture of the deposit. That may not be very satisfactory from the seller’s point of view; but it is, in my judgment, what he has agreed. The security of the deposit is not due until after signature of the memorandum of agreement; and so, if the buyer repudiates the contract before signature, the seller is without the benefit of the deposit.”
84. Subject to the Sellers’ case on Issue 3, the same applies to the pre-conditions in the present case. Until they are satisfied the Sellers do not have the security of the deposit. That is what they have agreed.
85. In many contracts for the sale of land a deposit is paid at the time that the contract is made, often on exchange of contracts. In such cases the seller has the security of the deposit from the outset and from that moment the right to the deposit accrues. Subject to the Sellers’ case on Issue 3, the parties have agreed to defer that moment until certain pre-conditions have been satisfied, as in The Blankenstein.
…
(4) Conclusion on Issue 1
100. The appeal on Issue 1 therefore succeeds. There is no Mackay v Dick principle of law in English law. Moreover, in this case, the proper interpretation of the contract does not entail, and there is no implied term, that the conditions precedent to the Buyers’ debt obligation are to be ignored because of the Buyers’ breach of contract in respect of those conditions precedent. The Sellers have their remedy in damages for the Buyers’ breach but they do not have a valid debt claim.
101. It follows that, on this issue, we agree with the decision and the essential reasoning of Dias J and disagree with the Court of Appeal. Popplewell LJ recognised the difficulties with accepting a Mackay v Dick principle of law and that no doubt explains why, first, he recognised significant exceptions to its operation and, secondly, he recast the principle as one resting on the parties’ presumed intentions (see para 16 above). But, with respect, and as has already been touched on in para 65 above, the two exceptions he formulated apart from contrary intention and the circumstances of the case (“the condition is not the performance of a principal obligation by the obligee, nor one which it is necessary for the obligee to plead and prove as an ingredient of its cause of action”) are not only very difficult, and probably impossible, to rationalise but would be highly complex to apply in practice. And, as we have made clear, a focus on the parties’ intentions, whether through interpretation or an implied term, would not assist the Sellers in this case.
…
A link to the full case is here.
Agnes Goodsir Type of the Latin Quarter c1926, collection of David and Patricia Lorimer
This exhibition at the Art Gallery of New South Wales celebrates the art and lives of 50 women artists in the 50 years before the Second World War. They were members of a raft of woman artists who travelled to Europe in the early Twentieth Century to enhance their artistic and personal skills.
The work on show is inspiring. The Exhibition remains open until 15 February 2026, so there is plenty of time for Brisbane members to enjoy the experience.
The artists featured include Hilda Rix Nicholas, Grace Cossington Smith, Margaret Preston, Eleanor Ritchie Harrison, Stella Marks, Helen Stewart, Bessie Davidson, Dorrit Black, Agnes Goodsir, Eileen Mayo and Grace Crowley.
The Exhibition was curated by the Art Gallery of New South Wales and the Art Gallery of South Australia. The website promotion – see below – includes the following:
The Exhibition title was inspired by the words of Thea Proctor, who returned to Sydney in the 1920s after almost two decades in London and was amazed to find her art labelled ‘Dangerously Modern’, considering herself simply of her time. In adopting this title, this Exhibition celebrates the professional achievements of these women artists while highlighting the challenges they face, both at home and away. Was it their art and ideas that were perceived as ‘dangerous’ – or the independent lives they dared to lead. That so many of their successes remain little-known, we wonder if the danger has been to their legacies.
The selected artists – and thousands more worldwide – pursued the professional promise of London and the moral freedoms and training opportunities of Paris. From a base in these cities, these artists travelled and exhibited their work widely, the skein of their global achievements and networks being almost impossible to comprehensively trace. Working as artists, as well as writers, teachers, illustrators, activists and suffragists, these women supported one another. Overcoming the challenges of distance, economics and prejudice of gender they often worked together as agents of change.
…
Dangerously Modern reclaims Australian women artists as active participants in the creation and transmission of international modernism. The period explored, 1890 to 1940, begins with the emergence of professional women artists who lobbied for equal rights and access to an art education equivalent to that of men. It closes with the beginnings of the Second World War, which was followed by both social conservatism and new iterations of modernity.
Ethel Carrick In the Luxemburg Gardens Parish c 1908, National Gallery of Victoria, purchased 1949
The reader would do well to view this Exhibition, but if that is not possible, perusal of the website below remains a profitable endeavour.
The website link is here.
On 3 October 2025, American singer-songwriter Taylor Swift released her twelfth studio album ‘The Life of a Showgirl’. The lead single from the album was ‘The Fate of Ophelia’.
Swift wrote and produced the song, it being co-produced by Swedish producers Max Martin and Shellback.
The song broke the Spotify record for the highest streams in a single day.
Wikipedia writes:
In the lyrics, Swift pledges loyalty to an honourable and deserving man for saving her from a death similar to that of Ophelia, a character in William Shakespeare’s ‘Hamlet’, who dies from madness and grief that resulted from romantic rejection … The music video, written and directed by Swift, premiered as part of the ‘The Official Release Party of a Showgirl’, an album launch and event film released in cinema theatres on the same day as the album. The video portrays Swift in various styles of showgirls throughout different historical time periods. … The song includes numerous references to Swift’s relationship with her partner Travis Kelce … Throughout the song Swift recalls moments when Kelce supported her, drawing a parallel to how Ophelia might have been saved if she had received help. …. She credits Kelce from saving her from ‘insanity, drowning, deception and purgatory’ brought on by past relationships and the isolation of fame, citing him as the reason she avoided an ‘Ophelia-like fate’. …
Swift is in the front rank of modern music, as a music writer, lyricist, producer and performer. The ‘Ophelia’ theme credits her with an apt knowledge of history, and plainly relationships (ie with Kelce) are important to her. The writer – despite his demographic – is a fan.
The music video – see below – is very watchable. It opens inside the Foyer of the Los Angeles Theatre, before embarking upon depictions of showgirls over history. The cinematographer was Rodrigo Prieto, the choreographer Mandy Moore and the production designer Ethan Tobman (source: Wikipedia).
The YouTube video of the song is here.
The Wikipedia references above were accessed 8 October 2025.
‘Throw your arms around me’ is a song by Australian rock band Hunters & Collectors, first released 41 years ago, in November 1984.
The piece is appealing – in music and lyrics – and is on the song list of even the younger demographics. In 2025, the song placed 25 on the ‘Triple J Hottest 100 of Australian Songs’.
Hunters & Collectors formed in 1981 with Mark Seymour on guitar and vocals, together with a raft of other talented musicians, song writers and sound engineers. Their breakthrough came in 1986 with the release of the album ‘Human Frailty’, which featured a new recording of ‘Throw your arms around me’. Their ‘Farewell to the World’ concert in 1996 saw the band come to a close.
Wikipedia includes a piece from Seymour describing writing for ‘Human Frailty’:
I was in a relationship with a woman I was very much in love with and she was the inspiration. I wrote virtually all the lyrics on ‘Human Frailty’ about my relationship with her … ‘Throw your arms around me’ was the first song I wrote that wasn’t angry. And because it was so out of the square, we didn’t record it particularly well … One time, we played it at The Palace, to about 2,000 people who just went off. We finally got it right so we recorded it again. I think we did about four versions of it.
The entry goes on to say of ‘Throw your arms around me’:
The song captured the intensity of sensual love [but] at the same time portraying its fleeting nature with the lyrics including ‘and we may never meet again, so shed your skin and let’s get started’.
A link to the YouTube version of the song – from 1990 – is here.
The litigation
On 8 September 2021 the New South Wales Court of Appeal allowed an appeal by the appellant Seqwater in the Brisbane River flood class action litigation.
The appellate decision – Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd[1] – concerned a proceeding brought by the plaintiff company, as lead claimant, for property damage and loss suffered in South-East Queensland river region, in consequence of release of water from catchment dams.
The defendants were Seqwater, SunWater Ltd and the State of Queensland.
The proceeding was commenced in the Supreme Court of New South Wales, no doubt on account of no class action legislation existing in Queensland at the time.
Following a trial ensuing for over six months, the trial judge (Beech-Jones J, as Beech-Jones JA then was) found for the plaintiff, in negligence, against such defendants[2].
Each defendant appealed. SunWater and the State settled with the plaintiff prior to the hearing of the appeal.
Seqwater’s appeal was successful. The plaintiff’s claim against it – it being apportioned 50% responsibility by the trial judge under statutory proportionate liability – was dismissed.
On 6 October 2021, the plaintiff filed in the High Court of Australia an application for special leave to appeal. The proposed grounds of appeal adumbrated therein were:
1. The Court of Appeal (CoA) erred:
(1) in holding that s 36 of the Civil Liability Act 2003 (Qld) (CLA Qld)[3] applied to the applicant’s case in negligence in substitution for the standard of care identified in s 9 of the CLA Qld; or alternatively
(2) in its identification of the content of the standard of care under s 36.
2. The CoA erred in the discharge of its rehearing function under s 75A of the Supreme Court Act 1970 (NSW) in failing to identify error under the standard appropriate to the review of a judgment in a trial of enormous proportions.
3. The CoA erred in overturning the findings of the primary judge of negligence of the first respondent’s employees on 7, 8 and 9 January, which caused the plaintiff and sample group members to suffer loss and damage.
On 12 April 2022 the High Court refused the application for special leave.[4] The court – Keane, Steward and Gleeson JJ – wrote:
The court does not consider that the case presents a suitable vehicle for a consideration of section 36 of the Act.
The point of this article is to alert practitioners to the gravamen of the appellate decision. It serves to underscore the ascent of s 36 as a powerful tool in the armoury of Queensland state and local government authorities.
There is no sensible reason why the Queensland Court of Appeal would not follow the NSW appellate decision.
The plaintiff’s case
The plaintiff – Rodriguez & Sons Pty Ltd – was the owner of a sporting goods store. It suffered loss as a result of the flood. There were 6,500 group members in the proceeding class cohort. The aggregate damages were substantial, namely in the billions of dollars.
The plaintiff alleged negligent operation of the dams resulting in widespread property damage and economic loss. It was alleged that the dam engineers, in the exercise of reasonable care, ought have made substantial releases from the relevant dams before the heaviest of the forecast rain so as to create storage capacity.
The case put for adjudication was that had the engineers followed the promulgated statutory dam manual – on its proper construction – they would have made substantial earlier releases of dam water so as to circumvent the dams overtopping at a time of high flows.
Australian common law, modified – if applicable – by the statute law of Queensland, operated in respect of the plaintiff’s pleaded cause of action. Such statute law included s 36 of the Civil Liability Act 2003 (Qld) (Qld Act):
36 Proceedings against public or other authorities based on breach of statutory duty
(1) This section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority.
(2) For the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.
The trial judge found that s 36 applied to a duty of care in the tort of negligence owed by each defendant, but that such provision did not apply to the plaintiff’s claim.
In finding negligence in the three defendants, his Honour apportioned liability 50% to Seqwater, 30% to SunWater and 20% to the State.
A raft of issues fell to be determined by the appellate court, but the particular focus was the trial judge’s above finding as to the proper construction of s 36, and the relevant standard of care operative thereunder.
Section 36 applicable to negligence
The trial judge found against the plaintiff’s argument that s 36, on proper construction, was confined in operation to a cause of action for breach of statutory duty. So much was contended (inter alia) on the content of the provision heading (see above).
There was trial division dicta in Queensland to the effect that s 36 was so confined.[5]
In upholding the trial judge’s construction the appellate court wrote:[6]
Whilst the heading forms part of the statute, and can be relied upon in construing the operative provision, the manner in which it was applied is not persuasive. The term “duty” is defined in the Dictionary to the Civil Liability Act to mean a duty of care “in tort”, “under contract”, or another duty under statute or otherwise that is “concurrent with a duty of care in tort or under contract”. The fact that the defined term “duty” is not used in s 36 suggests that the section was not limited to any particular cause of action. As the primary judge observed, “the definition of ‘function’ in s 34 is not confined to a ‘duty’.” Further, the phrase “breach of statutory duty” used in the heading is at best a paraphrase of the third limb of the definition of duty, the meaning of which is not without its own difficulties. Finally, s 36(1) makes explicit provision for the application of the section, and does so by reference to “function” rather than the type of duty which is alleged to have been breached.
Exercise of “functions”
The trial judge found that the reference to “functions” in s 36 did not apply to any statutory functions of Seqwater under the South-East Queensland (Restructuring) Act 2007 (Qld) in s 9 thereof.
In rejecting this finding the appellate court wrote:[7]
On any view, Seqwater in fact undertook its flood mitigation functions by establishing a Flood Operations Centre and exercising its powers to release water in a controlled manner. In doing so it was, on Rodriguez’ own case, subject to a duty to apply the Flood Control Manual according to its terms. The Manual, discussed in detail below, imposed strategies for the operation of Somerset and Wivenhoe Dams. It is not possible to read the reference to a “function” in s 36 as not encompassing the flood mitigation activities undertaken in January 2011.
Section 36 applies to vicarious liability
The trial judge found that s 36 did not apply to a cause of action founded on vicarious liability. Such liability was alleged in this case apropos of the conduct of the said dam engineers.
In rejecting the trial judge’s construction, the appellate court wrote:[8]
If a public authority can only exercise a function through the medium of trained professionals, it might be surprising if the standard of care applied to it differed from that applied to its agents. … Assuming that the functions of Seqwater included flood prevention and floodwater control, Seqwater was obliged to carry out those functions, having regard to the interests of Rodriguez and others with downstream interests in avoiding inundation. It employed professional engineers as its agents to carry out those functions. If the functions were carried out negligently, according to general law principles, Seqwater would be liable. However, the standard of care would be that identified in s 36(2). The contrary reasoning of the primary judge in this regard should not be accepted.
Seqwater as a “public or other authority”
The trial judge held that Seqwater was not a “public or other authority” within the definition of Qld Act s 34, and thereby not a “public or other authority” within the meaning of s 36.
Section 34 provides:
34 Definitions for div 1
In this division—
function includes power.
public or other authority means—
(a) the Crown (within the meaning of the Crown Proceedings Act 1980); or
(b) a local government; or
(c) any public authority constituted under an Act.
In finding that Seqwater was a “public or other authority” within the meaning of s 36, the appellate court wrote:[9]
It is aptly described as a “public authority” because it is established under statute, has the functions and powers conferred by the statute, has no corporators or individuals who would benefit from the exercise of its powers as members of a corporate body, is responsible for the supply of water and other services relating to the water industry and is run by a board appointed by the responsible Ministers. Although the characterisation of Seqwater is required for the purposes of the Civil Liability Act, the language of that Act in s 34(c), referring to “any public authority constituted under an Act”, cannot be read down so as to exclude a body having the characteristics of Seqwater.
…
The term “public authority”, as used in s 36, is not defined. Accordingly, it should be understood in the context of the regulation of water supply and flood control set out above. These considerations demonstrate that Seqwater was a public authority within the meaning of that term in s 34, and therefore in s 36 of the Civil Liability Act.
Section 36 standard of care
The appellate court found that s 36 significantly diminished the standard of care in negligence owed by a statutory authority. In doing so, it found assistance in the judgement of McLure P (Buss JA agreeing) in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management.[10]
Qld Act s 9 – which the court contrasted in content – provides:
9 General principles
(1) A person does not breach a duty to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
The appellate court wrote:[11]
[T]he distinction between the general approach to breach of duty under s 9 of the Civil Liability Act and that applicable to a public authority to which s 36 applies may be identified as follows: under s 9 it is for the court to determine whether, on the evidence before it, it is satisfied that the defendant failed to take precautions against a risk of harm which a reasonable person in its position would have taken; under s 36, the court must be satisfied that the authority, acting on its understanding of the relevant circumstances and applicable law, adopted an approach to the exercise of its functions which fell outside the range of reasonably available options. … Thus, where a person suffers injury caused by the conduct of another, it may appear on the evidence that the impugned conduct falls into one of the following categories, viewed prospectively:
(i) conduct which was the preferred or correct course although harm may have been foreseeable;
(ii) conduct which was not unreasonable, although it involved an error of judgment and some would have avoided it;
(iii) conduct which, in the Court’s view, a reasonable person taking appropriate precautions would not have done, and
(iv) the exercise of a power which is so unreasonable that the Court cannot envisage any person in that position considering it to be a reasonable exercise of the power.
Each category may need reformulation where the complaint is of a failure to act. There are situations where morality and the law take different courses and the law does not impose a duty to act. However, that did not arise in this case. The purpose of the powers conferred on Seqwater to operate the dams involved management of the water supply for south-east Queensland and flood mitigation on the Brisbane River. It had only one tool to achieve both purposes, that was turning the tap on or off at the dams. No question of distinguishing which acts from omissions affected its legal responsibility.
Viewed in this way, one can see a progression in terms of culpability: categories (i) and (ii) do not engage tortious liability in negligence in accordance with s 9 of the Civil Liability Act; (iii) engages liability under s 9, and (iv) alone will engage liability under s 36(2). Thus the schema suggested above reflects a scale of increasing culpability. As McLure P said, (iv) imposes a higher burden on the plaintiff than does (iii). Lack of reasonable care, assessed in accordance with s 9, does not demonstrate liability where s 36(2) is engaged.
…
Because the primary judge did not apply the s 36(2) standard in assessing Seqwater’s conduct, it will be necessary for this Court to consider that exercise. However, in the absence of any notice of contention, the extent to which this Court can make findings is limited. The limitations are discussed in part 18 below. That will attract further questions, including as to the appropriate identification of the relevant “act or omission”, whether singular or plural, for the purposes of s 36(2). Such matters are conveniently addressed in the factual context in which they arise. Ground 1 of Seqwater’s appeal should be upheld.
(emphasis added)
No breach adjudicated
Thereafter, in a detailed exegesis, the appellate court proceeded to find that – judged by the altered standard imposed by s 36 – the plaintiff did not discharge its persuasive onus of proving a breach of Seqwater’s duty of care.
In adjudicating no breach was so proved, the appellate court treated the manual regulating dam management as a more flexible document than it was characterised by the trial judge:[12]
… [T]he Manual was….“a practical document addressed to engineers, not lawyers”. It falls within the principle that “documents addressed to practical people skilled in the particular trade or industry” ought “to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions such as might be appropriate in construing sections of an act of Parliament”: Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 [HL] at 933–934; Queensland v Masson [2020] HCA 28; 381 ALR 560 at [95]….The Manual identified four key volumes of water in the dam by reference to water levels plus a range of flow rates at Lowood and Moggill. The procedures contained in the Manual depended upon those integers relating to conditions in the real world….Further, bearing in mind the Manual’s purpose, and the textual inconsistencies and infelicities, it is convenient to step back from the detail and appreciate that the Manual contained “operational procedures” for the operation of two dams during flood events, noting that all that a flood engineer could do was to make decisions when and at what rate to release water. The Manual gave a structure to the exercise of the only power the flood engineers had.
(emphasis added)
Conclusion
Suffice it to say this litigation was complex. The outcome was such that the claimants recovered only 50% of the damages.
The construction adopted on appeal in respect of the scope of operation and content of Qld Act s 36 entailed it having the same broad effect as s 43A of the Civil Liability Act 2002 (NSW)[13], s 39(5) of the Road Management Act 2004 (Vic)[14] and s 5X of the Civil Liability Act 2002 (WA).
The appellate decision spawns a construction of s 36 which renders it a powerful tool as a defence in the hands of the State of Queensland, or a state or local government authority, as defendant.
[1] Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd (2021) 393 ALR 162; [2021] NSWCA 206.
[2] Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No.22) [2019] NSWSC 1657 (29 November 2019)
[3] The CLA Qld is also referred to as the Qld Act or the Civil Liability Act below, with references to such variations also being made in judgments and legislation.
[4] Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater & Others [2022] HCA Trans 61 (12 April 2022).
[5] Hamcor Pty Ltd v Queensland [2014] QSC 224 at [195], [196] per Dalton J.
[6] Fn 1 at [68].
[7] Fn 1 at [82].
[8] Fn 1 at [101], [102].
[9] Fn 1 at [117], [121].
[10] Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287; [2012] WASCA 79 at [114].
[11] Fn 1 at [134]-[141].
[12] Fn1 at [224], [226] and [229].
[13] See Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74.
[14] See Kennedy v Shire of Campaspe [2015] VSCA 215.
Warren Zevon (1947-2003) was an American songwriter and rock singer.
He wrote and produced 13 albums between 1970 and 2003, but the stand-out was ‘Excitable Boy’ in 1978. Such album carried his most notable songs ‘Lawyers, Guns and Money’, ‘Werewolves of London’ and ‘Roland the Headless Thompson Gunner’ respectively.
One of the album’s producers was Jackson Browne.
Zevon also wrote compositions recorded by other artists, most notably “Poor, Poor Pitiful Me’, which was recorded by Linda Ronstadt on her album ‘Hasten Down the Wind’.
Upon his premature death – in 2003, at age 56, from mesothelioma – the ‘New York Times’ wrote:
Mr Zevon had a pulp-fiction imagination [which yielded] terse, action-packed, gallows – humoured tales that could sketch an entire screenplay in four minutes and often had death as a punchline.
When asked on the ‘Late Show With David Leterman’ what he had learned about life and death, Zevon responded:
How much you’re supposed to enjoy every sandwich.
In 2025, Zevon was inducted into the Rock and Roll Hall of Fame.
The YouTube link to ‘Lawyers Guns and Money’ is here.
Welcome to the revamped Hearsay magazine of the Bar Association of Queensland. Given recent events, this is a ‘bumper issue’!
The farewelling of Holmes CJ and the swearing-in of Bowskill CJ assume prominence in the feature articles. Many Association members in the regions but also in Brisbane may have been unable to attend these ceremonies. The key speeches appear for your reading and enjoyment.
New regular sections have been added, in particular ‘Regional Bar’ – addressing Regional Bar issues and also ‘Advocacy’ and ‘Professional Conduct’ sections.
In particular, I strongly encourage all to read ‘The Art of Written Submissions’ by Justice Martin AM SJA – as given at the annual BAQ conference earlier this year – it is masterclass material, and provides many salient reminders to Counsel at all levels of experience.
John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com) and Megan Brooks (T: 3333 9933; M: 0434 145 245; E: mbrooks@31west.com.au) are the deputy editors and the sub-editors include Stephen Kiem S.C. (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book reviews and Margaret Forrest (T: 3333 9940; M: 0422 542 706; E: mforrest@qldbar.asn.au) who looks after podcast reviews. My spouse Rosemary enjoys (only) the book review section of Hearsay!
Make sure you read the first interview in a new section ’10 minutes with …’ which in this edition features Andrew Philp QC. He managed to get through the interview without taking a ‘ciggie break’.
I do request your contributions to the deputy editors, or me (T: 3218 0620; M: 0417 788713; E: douglas@callinanchambers.com).
R J Douglas QC
Welcome to the September 2025 Quarterly Issue of Hearsay.
Moving on from the excitement of Hearsay – Issue 100, we are pleased to introduce another informative edition of Hearsay – Issue 101.
The lead article – ‘How Brawn v The King and MDP v The King Changed the Law on the Common Form Appeal Provisions’ by Saul Holt KC and Susan Hedge – affords a learned discussion on a very important aspect of criminal appeals, being the materiality criterion applying to the ‘wrong decision on a question of law’ and the ‘miscarriage of justice’ limbs of the common form appeal provisions.
This Issue’s featured artwork is titled ‘The Jade Pool’ by Brisbane artist, William Robinson, who sadly passed away in August 2025. A profile of Bill Robinson is included.
Hearsay’s ‘10 Minutes With…’ interviewee is Simon Couper KC, a leading commercial Counsel based in Brisbane. Simon refers to civility, ensuring the integrity of evidence and diligence as being amongst the obligations of Counsel.
The thought of this issue is ‘The performance pressure of being a Barrister… Look after yourself in how you manage that…pressure’. It is presented in the form of an excerpt from podcast interview with the Honourable James Allsop AC.
Included a notable speech by Chief Justice Helen Bowskill at the ‘Presentation of Newly Appointed Barristers Ceremony’. The Chief Justice affords prudent guidance to new barristers, and useful reminders to us all. We strongly recommend this item to our readers.
Andrew Hoare KC and Elizabeth Kelso have provided the paper ‘The Closing Address in a Jury Trial’, Tony Morris KC has contributed a paper looking at ‘AML/CTF Legislation’, the red tape involved, and lessons for barristers flowing therefrom. Stephen Lee writes on ‘The Remarkable Case of John Peter Zenger’.
Included also are three eulogies that were given at the funeral of Stephen Zillman, by Stephen’s daughter Stephanie, Terry Martin KC and solicitor Glen Cranny.
The ‘Regional Bar’ section item is penned by Jane FitzGerald. Jane canvasses practice at the Bar on the Gold Coast, in a piece titled ‘Bar on the Goldie’.
The reader will find in this Issue the customary raft of articles and case notes in Professional Conduct and Practice, Advocacy, Reviews and the Arts and the mix of topics in Inter Alia.
Hearsay welcomes Andrew Hoare KC and Elizabeth Kelso as members of the Hearsay Editorial Committee. Both have significant criminal law experience. Andrew is Chair of the BAQ Criminal Law Committee and Elizabeth is a Consultant Crown Prosecutor with the Office of the Director of Public Prosecutions. Andrew and Elizabeth have together produced a number of high-quality papers in the criminal law space for Hearsay over the past few years, including this issue. Hearsay will benefit from the experience they both bring to it.
Enjoy!
Richard Douglas KCJohn MeredithEditors
We do request your contributions to the editors, deputy editor or editorial team:
EditorsRichard Douglas KC (T: 3218 0620; M: 0417 788 713; E: douglas@callinanchambers.com)John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com)Deputy EditorPhilip O’Higgins KC(T: 3232 2122; M: 0417 997 725; E: philip.ohiggins@carbolic.com.au)Sub-EditorStephen Kiem SC – book and podcast reviews(T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au)Editorial TeamAndrew Hoare KC (T: 3236 0133; M: 0418 870 368; E: andrewhoare@qldbar.asn.au) Carolyn Conway (T: 3229 2631; M: 0407 757 780; E: conwaycj@jeddart.com)Seraphina Noble (T: 3210 6537; M: 0447 224 754; E: snoble@qldbar.asn.au)Elizabeth Kelso (T: 3738 9657; E: elizabeth.kelso@justice.qld.gov.au)
In Stewart (by his Litigation Guardian Schwarzman) v Metro North Hospital and Health Service[1] – in a judgment handed down 3 September 2025 – the High Court of Australia concluded that the catastrophically injured plaintiff – who before injury had a history of living in a rented home with his family and domestic animals, but who by trial was institutionalised and miserable, and with deteriorating health – was entitled to an assessment of damages on the footing of home, not institutional care.
This outcome departed from the trial court and intermediate appellate decisions which – in purported application of the previous decision of the High Court in Sharman v Evans[2] – engaged in a balancing exercise between home and institutional care, concluding that the (more expensive) home care was an unreasonable option to adopt, despite that being the plaintiff’s strong preference.
The assessed cost of the plaintiff’s future institutional care, but with more frequent therapy, was $1,081,895.56, while the alterative cost of home care was $4,910,342.52 (each after discount, with the plaintiff enjoying a life expectancy of 5 years from trial).
The High Court decision – being unanimous on the part of the members of the court, Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ – predicated the following essential reasoning:
[44] The proper approach to the assessment of the reasonableness of a person’s choice to be cared for at home or in a home setting, rather than in an institution or an institutional setting, starts from the premise that the plaintiff is entitled to compensation in a sum which, so far as money can do, will put them in the same position as they would have been in had the defendant not acted negligently. In a case such as this, that proper approach requires an assessment of whether the choice to incur the expense of care at home is a reasonable response to repair the consequences of the tort. In assessing the reasonableness of that choice, all the circumstances should be considered and compared with those circumstances that existed prior to the tort. The assessment of reasonableness is not confined to balancing only the health benefits against the cost. The assessment of reasonableness will be significantly affected by what is ordinary in those circumstances. The same is true for the question of whether it was unreasonable for a person not to take alternative action which could have mitigated the loss.[3]
[45] Where a person lived in their own home or in a home setting prior to the tort, and the restoration of that position, or a similar position, will be beneficial or at least not worsen their physical or mental health, it would be unusual to find that the choice by that person to receive treatment at home or in a home setting is unreasonable. Of course, there will be cases where living at home or in a home setting might not be chosen: “[t]o one person being permanently in the best of institutions might be as unpleasant as being permanently in a prison, while to another the same institution might be the most desirable of safe havens”.[4] But, as Lord Burrows has observed, “private treatment may offer advantages which are more than merely medical in nature (eg speed and comfort) and it is hard to see how it can ever be unreasonable for a claimant to opt for it”.[5]
…
[48] For the reasons explained above, the approach to reasonableness taken by the trial judge and the Court of Appeal, which reflected the approach adopted by some of the authorities decided after Sharman v Evans,[6] was in error. The inquiry should have started from the premise that Mr Stewart was entitled to compensation in a sum which, as far as money can do, would put him in the same position as he would have been in had MNHHS not acted negligently. The inquiry should not have been reduced to a simple balancing of the costs to MNHHS and the health benefits to Mr Stewart of care at (a rented) home. In this case, the question was whether his choice to be cared for at home was a reasonable response to repair the consequences of the tort by MNHHS.
[49] In addressing that question, this assessment of Mr Stewart’s choice of home care is that prior to the negligence by MNHHS, Mr Stewart lived in a home with his brother where Jesse and his dog would visit regularly. The option of living with care at Ozanam did not restore, and would not have restored, that position because of the restrictions on Jesse or a dog staying at Ozanam. It can be accepted that, as MNHHS submitted in this Court, care in a rented home without Mr Stewart’s brother would not precisely restore Mr Stewart’s prior position. But the fact that a precise level of correspondence cannot be achieved is beside the point. For Mr Stewart to be cared for in a rented home is a degree of restoration that is far closer to his prior position than his circumstances at the time of trial of living at Ozanam.
[50] The reasonableness of Mr Stewart’s choice of home care is reinforced by the conclusions of the trial judge about the effect of living at home on Mr Stewart’s physical and mental health. Mr Stewart’s quality of life and mental health would be enhanced by receiving care at home rather than at Ozanam and the real physical health benefits were, as the trial judge found,[7] not slight or speculative. Further, whatever might have been the position in 1977 when Sharman v Evans was decided, a choice by a severely injured plaintiff to receive care at home is, today, one that is not unusual, especially given the improvement in levels of care that can be provided at home or in a home setting.
[51] The effect of the conclusion that Mr Stewart acted reasonably in seeking to restore his position to that prior to the tort by his choice to live in a rented home of his own with care that was not suggested to be other than at reasonable rates is that the onus then fell upon MNHHS to establish that part or all of that claimed cost of home care could be avoided by an alternative that was unreasonably refused. MNHHS attempted to discharge that onus by suggesting the second option, which was much cheaper (staying at Ozanam with enhanced care from an external care assistant and the provision of more frequent therapy and exercise).
[52] MNHHS failed to discharge its onus of establishing that Mr Stewart acted unreasonably in refusing the second option despite that option being much cheaper. Although it was possible that Mr Stewart might be equally motivated under the second care option at Ozanam to achieve physical health improvements that were not significantly worse than those that could be achieved at home, MNHHS did not establish any likelihood that the external care assistant would develop the necessary rapport required to motivate Mr Stewart. In other words, unlike the improvement in his physical health that would likely result from Mr Stewart’s care at home, MNHHS did not establish the extent of any likelihood that the second option would improve Mr Stewart’s physical health when compared with his then present arrangements at Ozanam. The better quality of life and the mental health improvements that would also result from Mr Stewart living in his own (rented) home, and the ordinary nature of such arrangements for a person in Mr Stewart’s position, reinforce the lack of unreasonableness in Mr Stewart declining the second option despite the substantially lower cost of that option.
(footnotes incorporated herein; emphasis added)
In consequence the appeal was allowed. The court remitted the assessment of damages for final assessment in accordance with the reasons.
The gravamen of the decision is that the plaintiff’s persuasive onus of proof is discharged by proving the election for home care and the reasonable cost thereof, with the onus then shifting to the defendant tortfeasor to prove a failure by the plaintiff to mitigate his damage, namely that part or all of the cost of home care could be avoided but for an unreasonable decision by the plaintiff to refuse a proffered alternative option of institutional or like care.
In this regard, while Stewart is a personal injury damage case, such approach to proof of loss by tortiously caused damage arguably transcends the personal injury space, and indeed the law of negligence.
In Knott Investments Pty Ltd v Fulcher,[8] the defendants were found liable for contravention of quality warranties as to goods implied by s 71 of the Trade Practices Act 1974 (Cth) and s 17 of the Sale of Goods Act 1896 (Qld), resulting in a fire breaking out and destroying the plaintiffs’ packing shed and packing plant on land owned by it, and which they used historically to conduct a profitable tomato farming business. Due to uncertainty in rebuilding and re-establishing the business, the plaintiffs sold the land and the business, but claimed loss of profits extending beyond such sale.
It was found there was no proven failure to mitigate due to the land and business sale, in lieu of re-establishing the business. The Court of Appeal – by Muir JA – wrote (the plaintiffs being “the Fulchers” and also “the respondents”, and the defendants being “the appellants”):
[39] Although I acknowledge that the appellants’ argument on causation and mitigation are substantial, I am unable to accept them. As a consequence of the fire, the company not only lost its packing shed and plant, its tomato farming business was effectively destroyed. There is no suggestion that it could have conducted a profitable business pending rebuilding by continuing to grow tomatoes and having someone else pack them.
[40] It was apparent to the Fulchers that it would take approximately 18 months for the farm to be operational and another six months before any monetary returns were likely. It was also apparent to the Fulchers that, until the business could be re-established, the buyers on whom the company had previously relied would meet their requirements from other tomato growers. There could be no guarantee that the lost markets could be recaptured or that generally favourable market conditions would exist when the company returned to production. The business was volatile and Mr Fulcher had seen “many growers go broke” over the period of 20 years or so that he had been in the industry. A reason for financial failure was “borrowing too much money”. Consequently, any prudent decision to recommence the business required recognition that it was a realistic possibility that the business might not be able to regain its former volume of production or profitability for an unascertainable period.
…
[45] In considering the reasonableness of the respondents’ conduct, principles applicable to mitigation of damages may be thought to have relevance.[9] In that regard it has been held that a plaintiff is not under “any obligation to do anything other than in the ordinary course of business [to mitigate his loss] … [and that] the plaintiff is not required to sacrifice or risk any of his property or rights”.[10] In Metal Fabrications (Vic) Pty Ltd v Kelcey,[11] Murphy J, Brooking and Nicholson JJ agreeing, relevantly observed:
The respondents were under a duty only to act reasonably to mitigate their loss. This did not require them to chance their arm further, to risk any capital they might borrow too far or to take steps which would cause their financial ruin, if they failed: see Payzu v Saunders [1919] 2 KB 581; Lesters Leather & Skin Co v Home and Overseas BrokersClippens Oil Co Ltd v Edinburgh & District Water Trustees [1907] AC 291, and Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452, at p 506; [1932] All ER Rep. 181, at p 204.
As Lord Macmillan remarked in the lastmentioned case, the measures which the sufferer from a breach of contract may be driven to adopt “ought not to be weighed in nice scales”. So long as the respondents can be seen to have acted reasonably and justifiably in the circumstances, they should not be debarred from recovering the actual loss flowing to them simply because it is asserted that, by taking some other course, the loss might well have been lower.
[46] The primary judge took the matters discussed above into consideration as well as the difficulties in obtaining the necessary reasonably competent work force. No error has been shown in the reasoning which led to the primary judge’s conclusion that a failure to mitigate loss was not established.
(footnotes incorporated herein, emphasis added)
Thus, in that case, the plaintiffs – as innocent parties to the conduct of the defendants – were entitled to be put back into the position they would have been in but for the breach. The defendants bore the persuasive onus of proving that the plaintiffs failed to mitigate their loss, but failed to discharge such onus. That is, the plaintiffs were not obliged to take on a “second best” position despite the fact that would have reduced the damages payable by the defendants.
Suffice it to say, however, that each case must turn on its own facts. The trial findings are critical. The critical findings of fact in Stewart, it is submitted, is that prior to injury the plaintiff was living happily in his own home with his family, and but for injury would have continued to so do, and that he was miserable and his health was deteriorating when in institutional care at the time of trial.
A link to the decision in Stewart is here.
[1] [2025] HCA 34.
[2] (1977) 138 CLR 563.
[3] British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673 at 689. See also Summers, Mitigation in the Law of Damages (2025) at 31.
[4] Wieben v Wain (1990) Aust Torts Reports ¶81–051 at 68,189
[5] Burrows, Remedies for Torts, Breach of Contract, and Equitable Wrongs, 4th ed (2019) at 240.
[6] See above at [43].
[7] Stewart v Metro North Hospital and Health Service [2024] QSC 41 at [140].
[8] [2014] 1 QdR 21.
[9] Henville v Walker (2001) 206 CLR 459 per McHugh J at [130].
[10] Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5 at 9.
[11] [1986] VR 507 at 513; see also Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88 at 100 per Samuels JA.
