Alelaimat v Synergy Scaffolding Services
[2020] NSWSC 1495
•21 October 2020
Supreme Court
New South Wales
Medium Neutral Citation: Alelaimat v Synergy Scaffolding Services [2020] NSWSC 1495 Hearing dates: 19; 20; 21 October 2020 Date of orders: 21 October 2020 Decision date: 21 October 2020 Jurisdiction: Common Law Before: Campbell J Decision: I reject the question and answer.
Catchwords: EVIDENCE – rules of evidence – application - opinion evidence – where question is one of mixed fact and law – where question and answer rejected
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19
Category: Procedural and other rulings Parties: Bilal Alelaimat (Plaintiff)
Synergy Scaffolding Services Pty Ltd (First Defendant)
Workers Compensation Nominal Insurer (Second Defendant)Representation: Counsel:
Solicitors:
D. Toomey SC with D. Morgan (Plaintiff)
D.A. Priestley SC (First Defendant)
P Rickard (Second Defendant)
Matthew Garling & Co (Plaintiff)
McCullock & Buggy (First Defendant)
Moray & Agnew (Second Defendant)
File Number(s): 2017/208752
Judgment
-
Mr Ali Hamka is giving evidence. He is, and at all material times has been, employed as the Operations Manager of the first defendant, Synergy Scaffolding Services Pty Limited. He is being asked questions in his evidence in chief by Mr Priestley of Senior Counsel, who appears for the first defendant, concerning the employment status, I am using that expression neutrally, of the scaffolders who were working on the site at Artarmon on 10 October 2012 when the plaintiff was injured. There is no issue in the case that the plaintiff’s legal employer at the time of the accident was the second defendant’s insured, DJ’s Scaffolding Services Pty Limited, now either de-registered or in liquidation. It has not been contested that in the course of his work as a truck-driver delivering and picking up scaffolding components on behalf of the first defendant, he wore what might be referred to in a former age as the first defendant’s livery. He also drove a truck owned by the first defendant. The evidence establishes that the other scaffolding workers on the same site were so dressed.
-
Part of the plaintiff’s case against the first defendant is that it is vicariously liable for the casual act of negligence of one of the scaffolders on site who is said to have dropped a length of scaffolding plank, or “bench”, which struck the plaintiff on his left shoulder and low back. The first defendant resists the case based on vicarious liability by seeking to invoke the principle affirmed by the decision of the High Court in Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 that a defendant is not vicariously liable for the casual negligence of the employee of an independent contractor. I should say at the very outset that the onus of proving on the balance of probabilities that a relationship subsisted between the offending scaffolder and the first defendant capable of giving rise to vicarious liability on the part of the first defendant at all times lies upon the plaintiff. However, Mr Priestley has been asking questions with a view to eliciting evidence from Mr Hamka calculated to establish, I infer, that no persons working on the Artarmon site when the plaintiff suffered injury were direct employees of the first defendant. It is clear that Mr Hamka has no clear recollection of the events of 10 October 2012. As he explained, he had no reason to pay particular attention to the events of that day or write down the details, at least until he received notice of the plaintiff's injury.
-
He has not been able to say who the other scaffolders on the site were or where they came from. It might be said that the general tenor of his evidence has been that labour was obtained from, he put it variously as, either "labour hire" or "subcontractors". But the questions being asked by Mr Priestley go further, as I have said, in an attempt to, by way of pre-emptive rebuttal as it where, lay a foundation for an inference that, by whomsoever the scaffolders were employed on that day, it was not Synergy, the first defendant. Strictly it may not be necessary for him to go that far, but one can understand the tactical intent in the line of questioning.
-
Mr Toomey of Senior Counsel, who appears with Mr D Morgan for the plaintiff, has objected to the line of questioning essentially on the basis that the question of a person's employment status is at best a matter of mixed fact and law to be established in accordance with the objective theory of the law of contract which permeates the Australian common law; it is not a matter to be established by the subjective expressions of opinion of a person in Mr Hamka's position. There is also a question about whether someone in the position of an Operations Manager might be able to give direct evidence about the relationship between the first defendant and a given individual or individuals from which an inference can be drawn about the nature of any contract between them.
-
I am satisfied that the objection is properly taken and that questions asked of Mr Hamka seeking to elicit more or less directly his view about who employed whom on the site are inadmissible because they offend the opinion rule under s 76 of the Evidence Act 1995 (NSW). I reject the last question and answer to which objection was taken.
**********
Decision last updated: 27 October 2020
0
2
1