Adib v Onur Pty Ltd (Ruling No 4)

[2025] VCC 941

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-24-01002

MOHAMMAD ADIB (FORMERLY SHOHANI)	Plaintiff
v
ONUR PTY LTD (ACN 101 183 804)	First Defendant
and
KAPLAN BUILT PTY LTD (ACN 635 616 894)	Second Defendant
and
ICON SCAFFOLDING	Third Defendant

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JUDGE:	HER HONOUR JUDGE MYERS
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18, 19, 20, 23, 24, 25, 26, 27 and 30 June 2025
DATE OF RULING:	9 July 2025
CASE MAY BE CITED AS:	Adib v Onur Pty Ltd & Ors (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2025] VCC 941

RULING
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Subject:EVIDENCE

Catchwords:              Workplace injury – negligence – breach of statutory duty – relevance of Australian and New Zealand Standard AS/NZS 1576.1:2019

Legislation Cited:      Evidence Act 2008 (Vic); Occupational Health and Safety Regulations 2017

Cases Cited:Adib v Onur Pty Ltd & Ors (Ruling No 1) [2025] VCC 938

Ruling:  The reference to “or 300 mm in New Zealand” at 3.10.4.1(d)(i) of AS/NZS 1576.1 is relevant and admissible.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell KC with Ms K Popova	Zaparas Lawyers
For the First Defendant	Mr F A L Ryan SC Ms C A Kusiak	TG Legal + Technology
For the Second Defendant	Mr D Churilov	Barry Nilsson
For the Third Defendant	Mr G A Worth	Sparke Helmore

HER HONOUR:

Introduction

1The background to this proceeding is set out in my first ruling.[1]

[1]Adib v Onur Pty Ltd and Ors (Ruling No 1) [2025] VCC 938

2Mr Adib sought to tender an extract of the Australian/New Zealand Standard AS/NZS 1576.1:2019 (“the Standard”).  The parties were able to agree the form of the extract save in one respect.

3The relevant part of the Standard is as follows:

“3.10.4        Omission of edge protection

3.10.4.1     From a platform adjacent to the face of a building

Edge protection or components of edge protection may be omitted from a platform or landing adjacent to the face of a building or structure, provided —

(a)   the face has strength and rigidity not less than those of the omitted components;

(b)   the face is located at the required height of the omitted components above the surface of the platform;

(c)   in all other respects the face performs the function of the omitted components; and

(d)   the resultant gap between the face and the platform edge or adjacent horizontal member of the scaffold does not exceed —

(i) 225 mm in Australia or 300 mm in New Zealand, where the face is a working face; or

(ii) 100 mm where the face is not a working face.”

4Senior Counsel for Mr Adib submitted that the reference to “or 300 mm in New Zealand” at 3.10.4.1(d)(i) ought to be redacted as it was irrelevant, prejudicial or a potential distraction for the jury.

5Senior Counsel submitted that the Standards are a guide and do not dictate the standard of reasonable care. 

6Counsel for Icon Scaffolding (“Icon”) submitted that the Standard creates no independent cause of action.  Breach of the Standard is relied upon by Mr Adib as a particular of negligence. 

7In addition, it was submitted that the Standard provides guidance to scaffolders in Australia and New Zealand.  Given that it provides guidance, it is relevant that the permitted gap is 225 millimetres in Australia and 300 millimetres in New Zealand.  Either way, it was submitted, it was a small gap.  The entirety of the relevant section should go before the jury.

8Having heard the parties’ submissions, I indicated that my view was that given the Standard was a voluntary guide, breach of which, if proven, could be taken into account when considering whether negligence was established, that the guide should be seen by the jury in context.  Part of that context was that there was a different figure in New Zealand.

9Following this, Senior Counsel for Mr Adib asked for reasons to be provided in due course for my ruling regarding the reference to New Zealand.  These are my reasons.

Applicable principles

10The relevant sections of the Evidence Act2008 (Vic) are as follows:

“55    Relevant evidence

(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

… .

56 Relevant evidence to be admissible

(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2)Evidence that is not relevant in the proceeding is not admissible.

…

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing: or

(c) cause or result in undue waste of time …

… .”

Consideration

11The size of the gap through which Mr Adib allegedly fell was a fact in issue in this proceeding. 

12Mr Adib alleged the gap was at least 240 millimetres, that it did not comply with the Standard, and that the non-compliance should be taken into consideration by the jury when deciding whether there was a failure by one or more of the defendants to take reasonable care for Mr Adib’s safety.

13In my view, the whole of Part 3.10.4.1(a) to (d) of the Standard was relevant to the jury’s consideration of the alleged non-compliance, and the importance of any non-compliance in their consideration of whether there was a failure to take reasonable care.  This is because the jury’s receipt of the whole of Part 3.10.4.1(a) to (d) of the Standard would allow them to consider the alleged non-compliance in its proper context.

14I was not persuaded that there was a danger that the jury would find the reference to 300 millimetres in New Zealand misleading or confusing.  It is an Australian and New Zealand Standard.  A plain reading of the Standard identified the measurement for Australia, and the measurement for New Zealand.

15I was not persuaded that there was a danger that the probative value of the evidence was substantially outweighed by unfair prejudice to Mr Adib.  Giving the whole of Part 3.10.4.1(a) to (d) of the Standard, for it to be seen in perspective was probative.  In my view, there was no unfair prejudice to Mr Adib. 

16On the contrary, to have redacted the Standard in the manner proposed by Senior Counsel for Mr Adib may have been misleading to the jury.

17Finally, I note, for context, that Mr Adib also relied on breaches of Part 3.3 of the Occupational Health and Safety Regulations 2017 – Prevention of falls. One of the fall hazards which an employer must identify, so far as is reasonably practicable, is a task to be performed in close proximity to an “unprotected edge”. An “unprotected edge” means the edge of a surface from which there is a horizontal gap, void or space of more than 300 millimetres and which is not provided with a barrier to prevent a fall.

Conclusion

18The whole of Part 3.10.4.1(a) to (d) of the Standard was relevant and admissible.

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