Alelaimat v Synergy Scaffolding Services (No 3)

Case •

[2022] NSWSC 536

•

05 May 2022

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Alelaimat v Synergy Scaffolding Services (No 3) [2022] NSWSC 536
Hearing dates: 19; 20; 21; 22; 23 October 2020
Date of orders: 5 May 2022
Decision date: 05 May 2022
Jurisdiction:Common Law
Before: Campbell J
Decision:

(1) Judgment for the plaintiff against the first defendant in the sum of $1,356,533.39;

(2) Judgment for the second defendant as against the plaintiff;

(3) The first defendant to pay the plaintiff’s costs of the proceedings;

(4) Declare that the first defendant is bound to indemnify the second defendant in accordance with the provisions of s 151Z(1)(d) Workers’ Compensation Act 1987 (NSW) for compensation paid to the plaintiff with interest under s 100 Civil Liability Act 2005 (NSW);

(5) Direct the first and second defendants confer with a view to agreeing upon the amount of the judgment necessary to give effect to order (4) and to bring in short minutes of order within 14 days by lodging them electronically to the email of the associate to Campbell J. In default of agreement liberty to apply on a date to be fixed in consultation with Campbell J’s associate;

(6) Cross-claims otherwise dismissed;

(7) The first defendant to pay the second defendant’s costs of the cross-claims;

(8) Liberty to the parties to apply within 14 days in relation to damages calculations in accordance with my reasons and costs.

Catchwords:

LIMITATION OF ACTIONS – discoverability – personal injury – when plaintiff “ought to know” facts – whether plaintiff knew that the injury was caused by the fault of the defendant

NEGLIGENCE – duty of care – particular relationships – employer and employee – where employer has non-delegable duty of care – whether there was a failure to institute a safe system of work – systemic or casual negligence – question of vicarious liability

WORKERS COMPENSATION – injury – personal injury – arising in the course of employment – assessment of damages – possible interplay between ss 151A, 151Z(1)(b) and 151Z(2)(b) of the Workers Compensation Act 1987 (NSW)

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3B, 5B, 16

Civil Procedure Act 2005 (NSW), s 100

Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5

Limitation Act 1969 (NSW), ss 50C, 50D

Workers Compensation Act 1987 (NSW), ss 60, 151A, 151H, 151Z, 154A, 159

Cases Cited:

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28

Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35

Blatch v Archer (1774) 98 ER 969

Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167

CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 433; [2013] NSWCA 49

Dib Group Pty Ltd v Cole [2009] NSWCA 210

Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357

Fox v Wood (1981) 148 CLR 438; [2001] HCA 41

Gallagher Bassett Services NSW Pty Ltd v Murdock (2013) 86 NSWLR 13; [2013] NSWCA 386

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35

Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd (1947) AC 1

Najdovski v Crnojlovic (2008) 72 NSWLR 728; [2008] NSWCA 175

Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34

Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28

Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37

Pullen v Gutteridge, Haskins and Davey Pty Ltd [1993] 1 VR 27

Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18

Segal t/as Segal Litton & Chilton v Fleming [2002] NSWCA 262

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1

Shoalhaven City Council v Humphries [2013] NSWCA 390

South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; [2017] NSWCA 312

State of New South Wales v Gillett [2012] NSWCA 83

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1

Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4

TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53

Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

Texts Cited:

Nil

Category:Principal judgment
Parties: Bilal Alelaimat (Plaintiff)
Synergy Scaffolding Services Pty Ltd (First Defendant)
Workers Compensation Nominal Insurer (Second Defendant)
Representation:

Counsel:
D. Toomey SC with D. Morgan (Plaintiff)
D.A. Priestley SC (First Defendant)
P. Rickard (Second Defendant)

Solicitors:
Matthew Garling & Co (Plaintiff)
McCulloch & Buggy (First Defendant)
Moray & Agnew (Second Defendant)
File Number(s): 2017/208752
Publication restriction: Nil

Judgment

  1. The plaintiff, Mr Alelaimat, claims damages for personal injury he suffered as a result of a work site accident on 10 October 2012. Mr Alelaimat was paid by DJ’s Scaffolding Pty Limited (“DJ’s Scaffolding”), now deregistered, represented here by the Workers Compensation Nominal Insurer, established by s 154A Workers Compensation Act 1987 (NSW) (“WCA”) (see s 159(2) WCA), the second defendant, for work as a “sub-contracting” truck-driver delivering and collecting scaffolding materials. Synergy Scaffolding Pty Limited (“Synergy Scaffolding”), the first defendant, was the scaffolding contractor on the work site. As I find below, he was actually recruited and trained by Synergy Scaffolding to do the work on which he was engaged when he was injured.

Circumstances of the plaintiff’s injury

  1. On 10 October 2012 Mr Alelaimat was directed by Synergy Scaffolding’s operations’ manager, from whom he took his instructions, Mr Ali Hamka, to attend a work site in Artarmon to pick up scaffolding materials. On Mr Alelaimat’s evidence when he arrived at the site shortly after 8am he found that the scaffolding was still being dismantled. Mr Alelaimat says that he rang Mr Hamka, for further instructions, and Mr Hamka told him to assist the workers in dismantling the scaffolding. The workers had set up a work-line, passing the scaffolding components down from hand to hand. The scaffolding was more than three storeys’ high and Mr Alelaimat was on the ground level receiving components passed down. At some point during this work, Mr Alelaimat was bending over to pick up a metal joint or knuckle when he was struck from above by a falling 2.4-metre-long metallic scaffolding plank or “bench” which was caked in cement. The plank struck him hard across the left shoulder and down on his lower back. Mr Alelaimat says that he was knocked forward to the ground.

Description of Mr Alelaimat’s injuries

  1. There is dispute between the parties, and their medical experts, about the cause, nature and extent of Mr Alelaimat’s injuries and disabilities, a topic to which I will later return. However, it is accepted that Mr Alelaimat currently suffers from lumbar canal stenosis also involving a L4/L5 disc protrusion. The condition has been treated by decompression and micro-discectomy. Synergy Scaffolding deny his condition was caused by the work injury.

The issues and summary of argument

  1. Synergy Scaffolding accepts it owed Mr Alelaimat a duty of care as the entrepreneur responsible for the scaffolding work on site but disputes: the content of that duty of care extended to the provision of a safe system of work; breach of any duty which it owed; medical causation of his injury; the nature and extent of his disabilities; and that proceedings against it were commenced within the time limited by the Limitation Act 1969 (NSW). It claims statutory contribution from the second defendant under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (“LRA”).

  2. DJ’s Scaffolding accepts it owed Mr Alelaimat a duty of care as his employer but denies negligence. It claims the statutory indemnity under s 151Z(1)(d) WCA and in the alternative statutory contribution under s 5 LRA from Synergy Scaffolding.

Limitation issue

  1. In Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 (“Prince Alfred College”) French CJ, Kiefel, Bell, Keane and Nettle JJ held at [9]-[10] that although generally it is appropriate for a judge at first instance to deal with all issues raised in the case, even where the determination of one issue is dispositive, where the judge makes a finding that the claim is statute barred he or she should not go on to consider the other issues in the case. On this basis I consider it necessary to deal with the limitation issue which was raised by Synergy Scaffolding first and before the other issues raised in the case. I interpolate that in Prince Alfred College, while their Honours upheld the primary judge’s finding that no extension of time should be granted to bring the claim, they nonetheless considered the issue of liability. This was because their Honours sought to clarify the then vexed and unresolved question of whether, and in what circumstances, a school could be vicariously liable for the consequences of the intentional criminal conduct of a teacher.

  2. Section 50C(1) Limitation Act establishes the relevant limitation period for personal injury actions in the following terms:

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.

Note -

The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.

…

  1. By s 50D Limitation Act the date of discoverability is:

… the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

…

  1. In Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 (“Baker-Morrison”) Basten JA (with whom Ipp and Macfarlan JJA agreed) considered s 50D Limitation Act. In relation to subpar (b) Basten JA said at [28]:

“[t]he “fact” contemplated by par (b) is a relationship between two things, namely, the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation.”

At [37] Basten JA noted that this connection is not required to be made on the basis of legal analysis but that the plaintiff had to have actual or constructive knowledge of “the key factors necessary to establish legal liability”: at [39].

  1. Of the construction of subpar (c), Basten JA said (at [41]):

“Although a legal evaluative judgment appears to be required by par (b), that element is even more explicit in par (c). Thus, the injury must not only be understood to be serious, but “sufficiently serious to justify” a course of action. Further, that course is “the bringing of an action on the cause of action”, an objective which would appear to require the exercise of both legal and medical expertise.”

  1. In State of New South Wales v Gillett [2012] NSWCA 83 (“Gillett”) Beazley JA (as her Honour then was) affirmed the analysis of Basten JA in Baker-Morrison, saying (at [70]):

“It is apparent from [41] that Basten JA considered that a legal evaluative judgment appeared to be required by s 50D(1)(b) and this was even more explicit in s 50(1)(c). His Honour considered this provision required a plaintiff to know (or ought to know) that “the injury suffered was sufficiently serious to justify the bringing of an action”: s 50D(1)(c). In other words, a plaintiff had to know that the defendant’s conduct was actionable. This involved the exercise of both legal and medical expertise, given the statutory regimes which placed limitations on the damages recoverable in an action. His Honour considered that a proper view could not be formed about the justification for bringing an action, absent appropriate legal and medical advice in respect of such matters.”

  1. Campbell JA added at [131]:

“For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff’s own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing.”

Where, as here, the question of whether it is worth suing Synergy Scaffolding involves a choice between competing rights under the statutory no-fault WCA scheme and the fault-based damages regime based on Civil Liability Act 2002 (NSW) (“CLA”) additional complexity is introduced at the factual level before “a proper view” could be formed about whether a decision to sue the putative tortfeasor was justified: Gillett at [70]. The resolution of this complexity almost necessarily will require professional advice.

Consideration

  1. The determination of the limitation issue must be made bearing firmly in mind that Synergy Scaffolding bears the legal onus of proof on this issue as Mr Priestley SC, who appeared for it, properly conceded: Segal t/as Segal Litton & Chilton v Fleming [2002] NSWCA 262 at [27]; see also Pullen v Gutteridge, Haskins and Davey Pty Ltd [1993] 1 VR 27 at 71-6.

  2. Mr Alelaimat was injured on 10 October 2012. His Statement of Claim was filed on 10 July 2017. His claim would be statute barred if it was discoverable before 10 July 2014.

  3. This aspect of the dispute largely centred on the circumstances in which Mr Alelaimat received legal advice in late 2013. He had made inquiries of Ms Samantha McRae when she was at Slater and Gordon in March 2013. On 27 November 2013, he attended a conference with Ms McRae who was then of Law Partners. Ms McRae’s affidavit of 6 October 2020 which outlines her interaction with, and the advice she facilitated for, Mr Alelaimat was read in these proceedings (Court Book (“CB”) 64 – 83). Annexed to Ms McRae’s affidavit is a letter of 6 December 2013 signed, I infer, by a more senior practitioner, Ms Chantille Khoury. It focuses upon Mr Alelaimat’s right to recover workers compensation payments (CB 68 – 72). Ms McRae also annexes to her affidavit a document entitled “Law partners - Workers Compensation New Client Instructions”, a questionnaire which was completed by Ms McRae in consultation with Mr Alelaimat (CB 73 – 83). Relevantly, in relation to this common law claim, Ms McRae has crossed the boxes for “Initial Lump Sum Claim” and “Medical/Treatment Expenses Dispute”, statutory benefits under WCA, but has not crossed the box for “Possible Common Law”.

  4. Mr Priestley cross-examined Mr Alelaimat as to his knowledge about his injuries and any possible claim for damages arising out of his workplace accident. I will set out the relevant exchange below (133.19T – 134.19T):

“Q: You believed that you were injured, didn’t you, because of the fault of your employer?

A: Yes.

Q: That’s what you said to your lawyer, wasn’t it?

A: Yes.

Q: Did you have a discussion with that lawyer that day about whether you should do something about that in terms of bringing any special claim?

A: At this time I was only concerned about the surgery.

Q: You might have only been concerned about the surgery but did you have a discussion -

A: I can’t remember.

Q: Sorry, let me finish. Did you have a discussion with your lawyer about that time about whether you should make any special claim because you thought that you had been injured as a result of your employer’s fault? November 2013.

A: I can’t remember.

Q: Do you remember ever having a discussion with any lawyer from Law Partners about that subject?

A: Yes.

Q: When did you have that discussion that you recall?

A: My best memory I recall they start talking about that after the surgery.

Q: You started talking about or they started talking to you about it? What happened?

A: My best memory I think you are entitled for – I don’t know what it’s called – damage.

Q: Damages?

A: Yeah, or maybe we – after six months we’re going send you to the doctor to assess you for impairment, then we will make a claim for damage.

Q: But you don’t remember now when you first had that discussion; is that fair?

A: I can’t – the exact day I can’t remember but most of the time after the surgery.

Q: It might have been in November 2013, mightn’t it?

A: Maybe.

Q: At the time you told that lawyer that you thought it was their fault. Is that possible?

A: I can’t remember exactly but all the discussion about the damage and the start of the surgery – most of it.

Q: Most of the discussion?

A: Yeah.”

It is to be borne in mind that it is Mr Alelaimat’s damages claim against Synergy Scaffolding that is the subject of the limitation defence, not a work injury damages claim against his employer. The reference to an assessment by “a doctor” clearly relates to the question of the s 151H WCA threshold for a work injury damages claim. From the content of the questionnaire, there may have been confusion as to who was Mr Alelaimat’s employer.

Submissions

  1. Mr Priestley argues that Mr Alelaimat’s claim must be dismissed as it is statute barred. He submits that by the time Mr Alelaimat consulted Law Partners in November 2013 he satisfied the requirements of discoverability in accordance with s 50D Limitation Act. He argues that given the nature of Mr Alelaimat’s consultation with Law Partners he satisfies subs (1)(a), that is that he knew that the injury had occurred. Mr Priestley submits that he also knew that the injury was caused by the fault of the first defendant. In this regard Mr Priestley relies on the notes recorded on the Questionnaire completed by Ms McRae, which read “Client instructs employer (was) negligent”, “not enough workers” and “some workers don’t have tickets” (CB 74). Mr Priestley says that this material viewed in the light of Mr Alelaimat’s evidence that the workers on the site were all wearing Synergy Scaffolding livery and that he was injured by a falling piece of scaffold demonstrates that Mr Alelaimat knew that his injury was caused by the fault of the first defendant. Finally, Mr Priestley argues that Mr Alelaimat knew that his injury was sufficiently serious to justify the bringing of a cause of action because at the time he consulted Law Partners he was suffering from severe back pain, and he was determined to have spinal surgery due to the severity of his pain (127T - 128T). Indeed, the refusal of the workers compensation insurer to pay for the proposed surgery was a matter about which Mr Alelaimat was seeking advice. He submits that in this case Mr Alelaimat knew of all relevant facts and their consequences.

  2. Mr Toomey SC, who appeared with Mr Morgan for the plaintiff, argues that Mr Alelaimat was both unaware that his injury was the fault of the first defendant and was sufficiently serious to justify bringing a cause of action until he consulted Garling & Co, his present solicitors, in 2017. Mr Toomey relies on the letter of advice annexed to Ms McRae’s affidavit (CB 68 - 72) to demonstrate that Mr Alelaimat was not advised of his right to common law damages at that time but rather was only given advice relating to his right to recover workers compensation payments. He also relies on Ms McRae’s failure to cross the box for “Possible Common Law” claim on the questionnaire (CB 73) as evidence that Law Partners offered Mr Alelaimat no advice with respect to a common law claim and that therefore Mr Alelaimat was unaware that his injury was the fault of the Synergy Scaffolding or that it was sufficiently serious to justify bringing a cause of action. Mr Toomey argues that in accordance with Baker-Morrison the s 50D(c) test is one of legal liability and it is not sufficient that Mr Alelaimat informed Ms McRae that he believed his employer was negligent. Mr Alelaimat took all reasonable steps by seeking the advice of a lawyer but was not informed that his injuries were either the fault of Synergy Scaffolding or could give rise to a legal cause of action for CLA damages against it.

Decision

  1. I am satisfied from Mr Alelaimat’s evidence that he knew of his injury from the date of the accident. In his examination-in-chief Mr Alelaimat described that the force of the blow caused him to fall to the ground and left him screaming in pain (45.40 - .43T). His injuries were painful enough for him to attend a medical centre for assessment and treatment immediately. He had continued to receive treatment and had been recommended to undergo spinal surgery by Dr Darweesh Al-Khawaja, neurosurgeon, in March 2013 (CB 103), although this opinion was challenged by an insurance specialist and liability for the cost of surgery was denied.

  2. I am not satisfied that Mr Alelaimat knew or ought to have known that his injury was caused by the fault of Synergy Scaffolding. He certainly had the belief that his “employer (was) negligent” (CB 74), but that is insufficient, especially given the issues that have arisen about legal responsibility between Synergy Scaffolding, on the one hand, and DJ’s Scaffolding on the other. As Ms McRae’s notes also make clear, when Mr Alelaimat consulted her she had a question in her own mind about “who was running the site” (CB 74). Although Ms McRae recorded Synergy Scaffolding beside the entry “employer name” (CB 80), it is common ground that this is erroneous. From Ms Khoury’s letter of advice of 6 December 2003 it is clear that notwithstanding Mr Alelaimat’s belief, Law Partners then did not regard his as other than a workers’ compensation case. No advice whatsoever was proffered in relation to a “possible common law” claim (CB 68 – 73).

  3. As Basten JA said in Baker-Morrison (at [28]), although described in the legislation as a “fact”, s 50D(1)(b) is concerned with the relationship between “injury”, on the one hand, and the “fault” of the defendant, on the other. Although (at [39]) his Honour emphasised, “it was the key factors necessary to establish legal liability that had to be known”, those key factors here included the relationship between Synergy Scaffolding and DJ’s Scaffolding of which Mr Alelaimat was then ignorant. He was mistaken in his belief that Synergy Scaffolding was his employer. Had he been correct about that, the factors relevant to the cause of action, including the degree of disability of impairment necessary to bring proceedings, would have been different. As in Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 (“Liddiard”), Mr Alelaimat mistakenly understood he worked for Synergy Scaffolding and had no appreciation of the involvement of DJ’s Scaffolding and the relative responsibilities of each of those entities respectively. I am not satisfied that Synergy Scaffolding has discharged the onus of proving Mr Alelaimat knew the relevant s 50D(1)(b) “fact”: Liddiard at [48] – [49], Beazley JA (as her Honour then was).

  4. Bearing in mind the principles I have summarised above (at [10] – [12]), the central question for s 50D(1)(c), as Campbell JA put it in Gillett, is whether Mr Alelaimat had actual or constructive knowledge that he had sufficient prospects of recovering enough damages for it to be worthwhile litigating. As Basten JA said in Baker-Morrison (at [41]), the answer to this question requires the exercise of both legal and medical expertise. And as Beazley JA said in Gillett (at [70]):

“A proper view could not be formed about the justification for bringing an action absent appropriate legal and medical advice in respect of such matters”.

  1. It is clear that Mr Alelaimat had received the opinion of Dr Al-Khawaja that his back condition, in any event, may be amenable to spinal surgery. Surgery is of course primarily supposed to be curative, and it may be said, especially given the thresholds and caps which limit damages recoverable under both the WCA work injury damages scheme and the CLA personal injury scheme, questions of whether surgery would in fact be undertaken and its outcome are very pertinent from the “medical” point of view. Moreover, he had received “legal” advice and the lawyers had failed to address whether he would be justified in suing Synergy Scaffolding for CLA damages. As at November 2013 Mr Alelaimat and Law Partners were proceeding on the mistaken assumption that Synergy Scaffolding was the employer. This would have restricted Mr Alelaimat’s claim to the recovery of somewhat truncated work injury damages. Moreover, pursuit of any damages claim would have required him to give up what may have been potentially valuable and ongoing workers’ compensation rights. And, a work injury damages claim was in any event not covered by the Limitation Act.

  2. Even approaching the question on the correct basis that any damages recoverable from Synergy Scaffolding were covered by the CLA Scheme, similar questions arose given the recovery of damages would have brought his workers’ compensation rights to an end and required repayment of all amounts paid to, for, or on his behalf (subject to s 151A WCA) out of the damages. As this case demonstrates there are apparent complexities attending the question of Synergy Scaffolding’s legal liability given it is not Mr Alelaimat’s employer. I am not satisfied that Synergy Scaffolding has established the s 50D(1)(c) fact.

  3. It follows I am not satisfied that Mr Alelaimat’s cause of action is statute barred.

Evidence of Mr Alelaimat

  1. The evidence of Mr Alelaimat was taken orally by way of both examination-in-chief and cross-examination rather than by way of his evidential statement. Mr Alelaimat gave evidence that in March 2011 he came across a job on the Gumtree website advertising for a truck-driver for a scaffolding company and applied for the position (26.37T - 27.8T). He said that after he applied for the job a person called Ali Hamka called and introduced himself as the Manager of Synergy Scaffolding and after some questioning asked him to come to the yard then located at 40 Norman Street Peakhurst the next day for an interview, and if suitable for a trial of work (27.24 - .34T).

  2. Mr Alelaimat said that when he went to the yard, he introduced himself to someone who was apparently the yard manager and who gave him some jobs to do around the yard, which included cleaning some clamps and gears (28.1 - .20T). Mr Hamka arrived later and asked Mr Alelaimat some questions about whether he could drive a ute (28.25T). Mr Alelaimat responded that he could, and Mr Hamka said that he would speak to the director of Synergy Scaffolding, Mohamed Al Jarrah, about what work he could offer him (28.25 - .32T). Mr Alelaimat continued to work in the yard that day until Mr Al Jarrah introduced himself (28.41 - .46T). Later in the day Mr Hamka approached Mr Alelaimat and told him that Mr Al Jarrah could offer him a job from Monday to Saturday, 6am to 4pm, for $20 an hour with a minimum of 46 to 60 hours a week (29.9 - .12T). He was told that he would be a truck driver and that he would be required to pick up and drop off scaffolding and gear at job sites (29.16 - .19T). This job required him to load the scaffolding on and off the truck, sometimes with the assistances of the men working in the yard (32.35T).

  3. Mr Alelaimat reported for work the next day (29.25T). He said that he reported to and received directions by either text or phone call from Mr Hamka (29.30 - .35T). He was provided with a Synergy Scaffolding uniform to wear while he was working (29.50T). In the first week or two Mr Hamka accompanied Mr Alelaimat in the truck and trained him how to drive it (31.7T). He also taught Mr Alelaimat how to strap the scaffolding material onto the truck (77.20 - .35T). Initially Mr Alelaimat drove a 4.5 tonne truck but at the beginning of 2012 he obtained a HR licence and started driving a 12 tonne truck (31.20 - .24T). All the trucks that Mr Alelaimat drove had Synergy Scaffolding logos on them (31.45T).

  4. Mr Alelaimat said that sometimes when he arrived at a job site the scaffolding was not dismantled and that on these occasions he was instructed by Mr Hamka to assist the men (32.40 - .50T).

  5. In July 2011 Mr Hamka and Mr Al Jarrah approached Mr Alelaimat about getting an Australian Business Number (“ABN”) (33.1T). They told Mr Alelaimat that it would be better for him and the business if he got one, as it would reduce the tax he paid (33.5 - .11T). They gave Mr Alelaimat the name of their accountant and sent him to see him for the purposes of organising an ABN (33.13 - .23T). Ms Nada Hamka then provided Mr Alelaimat with an invoice book and had him sign the invoices in advance and said that she would fill out the rest of the details for payment (33.25 - .50T). The signed book remained with Ms Hamka (34.8T). Mr Toomey tendered the tax invoice book for 4 August 2011 to 5 July 2012 (Exhibit C) and the tax invoice book for 8 February 2011 to 11 July 2012 (Exhibit D). Mr Alelaimat gave evidence that although he signed those invoices the other writing filling out the rest of the details was not his (39.15T). Exhibit D contains signed blank invoices, and I accept Mr Alelaimat’s evidence that he signed all the invoice forms at once and left them with Ms Hamka to complete.

  6. On 10 October 2012 Mr Alelaimat attended the Synergy Scaffolding yard, which had been moved to 14 Commercial Road Kingsgrove (41.8T). Mr Hamka had told him to load the truck up at the Kingsgrove yard and deliver it to a job site in North Sydney (41.16 - .20T). After Mr Alelaimat had done that job, he called Mr Hamka to obtain further instructions (41.30T). Mr Hamka told him to go to a job site in Artarmon to pick up gear and deliver it back to the Kingsgrove yard (41.33T). Mr Alelaimat said that he arrived at the site around 8 or 9am but that the scaffolding had not yet been dismantled and there were around 4 or 5 scaffolders doing the job (41.43T). All the workers were dressed in Synergy Scaffolding uniform and Mr Alelaimat recognised some of them from the Synergy Scaffolding yard (42.8 - .11T). Mr Alelaimat said that he called either Mr Hamka or Mr Al Jarrah to tell them that the job had not been finished and to complain to them that there were not enough scaffolders to complete the job (42.47T). Mr Alelaimat said he was told that they were sending more scaffolders and just to help them (42.50T). He said he was not given instructions on how to help them (43.5T).

  7. Mr Alelaimat said that he started by taking the loose gear and stacking it so it they would be ready to load onto his truck (43.8T). He then took the loose gear out to the truck and started to re-stack it (43.15T). He said that there was a chain that had been formed by the scaffolders, whereby they would pass the scaffolding down, from the top level to a lower level and then to the ground level and that he would either receive components on the ground level or pick them up from the ground where they had been placed (43.24 - .31T). At some point three other workers arrived in a Synergy Scaffolding utility. They too wore Synergy Scaffolding livery (43.37 - .45T). Mr Alelaimat recognised one of them as a man named Christo (43.44T). After these additional workers had arrived Mr Alelaimat was bending down to pick up a clamp or a bracket with his back arched at a less than 90-degree angle (45.1 - .35T). Whilst he was bending a big force struck him across the back, from the upper arm down to the lower left shoulder and forcing him down to the ground (45.40T). He was screaming in pain (45.43T). He said that a metal plank hit him which was roughly 2.4 metres long and 30 centimetres wide (45.45T – 46.7T). He said the metal plank had cement rendering on it (46.45T).

  8. Mr Alelaimat said that once he had been hit, the workers stopped to assist him (47.23T). He said the pain started from the upper arm and went into the left shoulder, neck and all the way down to his lower back (47.27T). Christo called Mr Al Jarrah and told him that Mr Alelaimat had been injured and asked him what to do (47.45T - 48.7T). Christo informed Mr Alelaimat that there was a medical centre only 20 metres away and had some of the men from the site assist him to go there (48.10 - .25T). Mr Alelaimat said that he had conversations with both Mr Al Jarrah and Mr Hamka by telephone. They told him that he was to say he worked for DJ’s Scaffolding (52.19 - .47T). Mr Alelaimat said that this was the first time he had heard of DJ’s Scaffolding (53.14T).

  9. Mr Alelaimat attended Artarmon Medical Centre and saw Dr Elizabeth Nash (52.50T). Dr Nash referred Mr Alelaimat to have an X-ray on his neck, mid back, lower back and left shoulder (53.20T). On that occasion Dr Nash prescribed Mr Alelaimat with Tramal (Supplementary Court Book (“SCB”) 9 - 10). Mr Alelaimat returned to Dr Nash a week later and Dr Nash prescribed him with Tramal and Panadol Osteo and referred him for physiotherapy (53.30 - .40T). He was also sent for a chest X-ray (53.42T). He was later referred back to his regular GP Dr Ismail Mohammed for ongoing treatment and consultation (54.16T).

  10. About a month after the accident Mr Alelaimat returned to “light duties” at the Synergy Scaffolding yard (110.5T). He said that he was required to do lifting, handling and driving and worked reduced hours, Monday to Wednesday 6am until noon (55.13 - .20T). This caused aggravation of his pain and after about a week he ceased working for Synergy Scaffolding (55.22 - .26T; 110.18 - .41T).

  11. On 29 November 2012 Mr Alelaimat was given a certificate for suitable duties by Dr Ismail Mohammed (55.33T). At the time all that Synergy Scaffolding could offer him were light duties in the yard (55.40T). Another certificate was issued to Mr Alelaimat so that he could continue to work until 13 December (56.30T). There was some discussion at this point about Mr Alelaimat counting stock as he had difficulty climbing up onto the truck (56.21 - .26T). On 13 December Mr Alelaimat visited Dr Ismail Mohammed and he expressed concern that the duties he was being given did not accord with the certificates that were being issued (56.47T).

  12. In early 2013 Dr Ismail Mohammed prescribed Mr Alelaimat Tramal and Valium (60.15 - .18T). Mr Alelaimat says that at this point he was taking Valium daily (60.24T).

  13. Mr Alelaimat had an MRI scan of his back in January 2013 and first saw Dr Darweesh Al-Khawaja on or about 7 March 2013, Dr Al-Khawaja recommended back surgery.

  14. On a subsequent consultation of 21 August 2014 Dr Al-Khawaja sent Mr Alelaimat for a further MRI of his lower back (61.1 - .6T). He attended another consultation with Dr Al-Khawaja who again recommended surgery (61.14T). Mr Alelaimat underwent surgery on 4 September 2014 but it made no significant improvement to his back and leg symptoms (61.16 - .21T).

  15. Around May 2015 Mr Alelaimat attempted a work trial at Super Cheap Auto (62.12T). Mr Alelaimat said that the work involved repetitive bending, lifting, twisting and standing for long hours as he was required to load and stack shelves (62.20 - .25T). He spent around a month working for Super Cheap Auto working between 8-20 hours a week and stopped work there on the advice of Dr Al-Khawaja (62.30 - .47T).

  16. Upon the direction of Dr Al-Khawaja Mr Alelaimat went for a further MRI of his lumbar spine and a whole-body scan (62.50T – 63.5T). On 6 August 2015 Dr Al-Khawaja reviewed Mr Alelaimat and recommended facet joint injections (63.12T).

  17. Mr Alelaimat separated from his wife in June 2013 (64.17T). He blames his poor mental health following the accident for the deterioration in his relationship (64.25T).

  18. Due to consistent shoulder pain Mr Alelaimat had an injection in his left shoulder in September 2016 (65.5T). Mr Alelaimat says he still has trouble lifting the left shoulder (65.20T). In mid-2017 Dr Al-Khawaja referred Mr Alelaimat for physiotherapy and pain management (65.28T). Mr Alelaimat was prescribed Targin and Lyrica by Dr Russo in October 2017 (65.39 - .42T). It was suggested that Mr Alelaimat might have an epidural injection for his leg pain, but this never occurred (65.50T – 66.2T).

  19. Mr Alelaimat currently resides with a friend in a townhouse that he rents through Airbnb (66.30T). He says that his friend performs the general domestic duties around the house and that the owner of the property comes in to clean sometimes (66.42T; 57.26T). He does not perform any jobs around the house that might aggravate his back injury such as pushing something heavy or lifting (66.48 - .49T). He says that on a good day he is able to make his bed but that he is unable to sweep or mop the floor or clean the bathroom (67.7 - .17T). Mr Alelaimat said that he can do shopping but only shops for little things as he is unable to lift heavy things (67.30T). Sometimes he uses a shopping trolley/cart to assist him with carrying his shopping (67.30 - .42T).

  20. Mr Alelaimat is currently taking Lyrica, Valium and Nexium (68.29T). He continues to experience muscle, nerve and joint pain everyday (70.17 - .35T), although the severity of his pain differs from day to day and can depend on how much activity he does (70.31 - .47T). To relieve the pain, he lies on the floor and within five to ten minutes he is able to recover and starts to have feeling in his legs again (71.1 – .10T).

  21. In October or November 2019, the friend with whom Mr Alelaimat lived with offered him work (72.5 – .16T). Mr Alelaimat was not paid for this work but described it as mutually beneficial as his friend needed help with his store because he was travelling to Jordan and Mr Alelaimat was upskilling himself (73.5T). He did not deal with customers or pack shelves but was required to count stock and liaise with representatives to order more stock (73.35T). He continues to work at the convenience store occasionally, but it is not consistent work (73.25T). He will sometimes work one hour in one week and then go back three weeks later and work for six hours (73.25T). He described this work as physically difficult as sometimes the effect of the Lyrica and Valium made it hard for him to get out of bed (73.40T).

  22. Mr Alelaimat said that he had applied for hundreds of jobs since completing his work at Super Cheap Auto (73.49T). He said that as soon as he told people about his back injury that they no longer seemed interested in offering him work (74.5T). He said he applies for jobs through Seek and Joblife Employment which is operated through Centrelink (74.7 - .14T). He currently applies for office work jobs (74.24T).

Cross examination by Mr Priestley

  1. Under cross-examination Mr Alelaimat confirmed that he was not given training on how to dismantle scaffolding (78T). Mr Alelaimat said that he was not given any instruction about exclusion zones and does not remember seeing any areas taped off when he went to drop off and collect scaffolding (79.1 - .12T).

  2. When taken to the events of 10 October 2012, Mr Alelaimat explained that the job required at least 15-20 workers and at the time of the incident there were only 3-5 workers present so everyone was fatiguing (94.25T). To Mr Alelaimat’s observations there was no leading hand at the site that day (90.50T). Mr Alelaimat agreed with the proposition put to him by Mr Priestley that Mr Hamka did not direct Mr Alelaimat as to how to assist the workers but repeated that Mr Hamka had asked him to stay and help (100.35T). In response to a question posed by Mr Priestley as to whether Mr Hamka told him not to go into the exclusion zone, Mr Alelaimat replied “[h]e said, ‘Go, they’re going to pass the gear to you, take them, carry them, put them outside, stack them and load in the truck.’ That’s the only thing he said” (100.42T).

  3. Mr Priestley suggested to Mr Alelaimat that he has been exaggerating his symptoms in his back and leg to doctors (121.29T). Mr Alelaimat disagreed with this suggestion (121.30T). He disagreed with the propositions put to him by Mr Priestley that he pretended not to be able to lift his legs as part of the straight leg raising test in front of several doctors (122T – 123T).

  4. Mr Priestley questioned Mr Alelaimat on why he had not enrolled in an English language course to assist him with his job applications (111T – 112T). Mr Alelaimat replied that last year he enrolled in an English course (112.26T). He said that he has largely been applying for jobs that advertise part time work (113.31T). Mr Alelaimat said that he had not been applying for driving jobs while his licence was restricted (113.46T). He said that he had gone through the assessment process recently to remove the restrictions on his licence because it would assist him in getting jobs (114.23T). He said that many administrative jobs required you to have a full licence (114.35T).

  1. Mr Alelaimat said that he informed his job provider at Centrelink that he was assisting in the convenience store and his job provider told him that if he could be given work there, they would pay his employer $2000 (125.36T). Mr Alelaimat said that he informed his friend who owned the convenience store but that his friend said because of Covid-19, work was slow and that he would have to think about it and see what he could do (125.46T). His friend suggested that he might be able to offer him 5 to 10 hours of work a week (125.49T).

Evidence of Mr Ali Hamka

  1. Mr Ali Hamka has also been known as Robert Zaidder (159.9T). Mr Hamka is currently employed by Synergy Scaffolding and has been working there for over 10 years (159.34 - .40T). At the time of the incident Mr Hamka was the day-to-day operations manager (160.6T). Mr Hamka would obtain the workers required in a labour hire arrangement from DJ’s Scaffolding (161.30T). He would also use other labour hire services (161.50T). Mr Hamka said that he hired Mr Alelaimat through DJ’s Scaffolding (162.38T). When questioned in cross-examination about how he knew that Mr Alelaimat came through DJ’s Scaffolding, Mr Hamka said that he presumed that he had acquired Mr Alelaimat through DJ’s Scaffolding because that was who his workers compensation was with (179.14T; 182.6T). Mr Hamka confirmed that he trained and oversaw Mr Alelaimat in the truck in his first week or so starting work (163.1 - .16T). He said that after this period he didn’t provide any additional training to Mr Alelaimat (164.20T). He said that no one else from Synergy Scaffolding provided Mr Alelaimat with training (191.35T). He said that he instructed Mr Alelaimat on a daily basis about where to go and what to do via phone calls and text messages (163.19 - .23T). Exhibits C & D show however that initially invoices for Mr Alelaimat’s work were filled out to “Scaffhire”.

  2. Mr Hamka said that he never asked Mr Alelaimat to help out on the scaffolding sites (164.45T). He denied ever asking Mr Alelaimat to assist the scaffolders to remove the scaffolding on the date of the incident (181.4T). He maintained this denial in emphatic terms several times.

  3. It is important to emphasise, at the risk of repetition, in relation to the issues for determination in this case that the distinct impression deliberately created by Mr Hamka was that Synergy Scaffolding did not actually employ any scaffolders directly. Rather, he ordered “men” as he needed them from “multiple sub-contractors” (161.50T). Although he referred to the source of the labour as “sub-contractors” (162.40T), he also referred to these organisations as “the labour hire company” (162.38T). I thought this a more accurate description given it is clear that the scaffolding work in which Synergy Scaffolding was involved was work it had contracted to do. These contracts were not let or delegated to third parties. Rather, Mr Hamka would, if necessary, “ring around” the various labour hire companies to put the necessary team together. It is also important to bear in mind that when Mr Alelaimat was first hired as a truck driver, Mr Hamka, and not someone from Scaffhire or DJ’s Scaffolding or another labour hire company, trained him to “make sure he was competent in the dealings of the truck” (163.10T). I infer that the truck he was required to drive was the property of Synergy Scaffolding; “It’s a $300,000 truck” (163.27T). Mr Hamka said of the training (163.41T):

“During that first week – because a truck driver knowing how to drive a truck is one thing, but then knowing how to drive a truck loaded with scaffold and how to stack it with the Hiab is another thing. You know, you can be carting coke bottles all day. It doesn’t mean you can come and drive a scaffold truck.”

Mr Hamka trained Mr Alelaimat in using the Hiab, liaising with crane crew, and strapping the truck (163.49T). Mr Hamka confirmed Mr Alelaimat’s evidence that he would directly instruct Mr Alelaimat by telephone or text message “on a daily basis, where to go, what site, and what to do – like, what to pick up, delivery, who to talk to” (163.20T).

  1. As I have said, Mr Hamka may sometimes have had to ring around a number of the labour hire companies to put a crew together (177.20T). It does not seem that the labour hire companies provided leading hands or supervisors. Mr Hamka just relied on a scaffolder who’s “competent or got some sort of leadership” (177.50T). When asked about the specific worker identified by Mr Alelaimat as being present on the Artarmon site on the day of his injury, “Christo”, Mr Hamka said, somewhat tellingly I thought, there are “hundreds of workers, if not more I’ve dealt with” (my emphasis) (178.8T).

  2. When cross-examined by Mr Rickard, who appeared for DJ’s Scaffolding, Mr Hamka said that the payment of scaffolders was left to “the office” (180.30T). His job was the day-to-day running of the work of erecting and dismantling scaffolding (180.34T). Both in chief and in cross-examination, Mr Hamka described as “baloney” the proposition that he would ever direct Mr Alelaimat to help the scaffolders remove the scaffolding (181.5T). He said he would never tell a driver to do any labouring work (181.5T). It also emerged in cross-examination that Mr Hamka was the person who had the final say about who could work for Synergy Scaffolding “on merit” (189.44T). This obviously, in the context of his whole evidence, included the labour which was sourced through the various labour hire “sub-contractors”.

  3. Mr Hamka agreed that during the time that Mr Alelaimat was performing Synergy Scaffolding’s work until he ceased work, he took directions from Mr Hamka and nobody else (194.5 - .10T). He did not know of anybody at DJ’s Scaffolding who gave directions or instructions to the plaintiff (194.45T). Mr Hamka agreed that it was normal procedure that when Mr Alelaimat had finished one task that he would ring Mr Hamka to obtain further instruction as to what he should do next (197.42T). But he again denied “100 percent” telling Mr Alelaimat, a truck driver, to go and be a labourer (198.30T).

  4. Mr Hamka said that a person named Danny Jassar, whom he knew, and had last seen a year or two before Mr Hamka gave evidence ran DJ’s Scaffolding. I interpolate, that Mr Rickard read an affidavit of his instructing solicitor detailing the many, alas unsuccessful, attempts made to locate Mr Jassar and secure his attendance as a witness.

  5. I should record here, that it is impossible to say that Mr Hamka was in any way an impressive witness. As even the monochromatic print of the transcript itself amply demonstrates on this occasion, he was belligerent to the point of aggressiveness, argumentative and offensive to counsel, especially Mr Toomey SC, frequently refused to answer questions, but eventually complied when directed to, stormed out of the witness box at one stage and had to be coaxed back by the good offices of Mr Peacock, the solicitor for Synergy Scaffolding, and was outright facetious to the point of scurrilousness on occasions. It is difficult to put much store on his evidence except to the extent to which aspects of it were consistent with objectively established facts, of which there were not many, and the apparent logic of events. There were certainly no contemporaneous documents to speak of as they had not been produced under subpoena apart from the invoice books signed by Mr Alelaimat in blank. As I have stated, these were completed by a person in the office of Synergy Scaffolding, Ms Nada Hamka, rather than by any independent person on behalf of DJ’s Scaffolding (SCB 125 – 182). Mostly these were for the supply of Mr Alelaimat’s labour although following his accident of 10 October 2012, there are a number of charges purportedly made for the supply and installation of scaffolding and scaffold hire which are entirely unexplained. The invoices are not continuous throughout the whole period of Mr Alelaimat’s employment.

Medical evidence

Primary Medical Treatment

  1. As Mr Alelaimat said, on the day of his injury he was taken from the Artarmon work site to the Artarmon Medical Centre in Hamden Road, Artarmon where he consulted and was examined by Dr Elizabeth Nash. From her clinical records (SCB 10), he gave a history consistent with his claim of a 12 kilogram piece of steel falling three floors onto his left upper arm and back. Amongst other findings recorded by Dr Nash, on examination she elicited tenderness on the lower thoracic and lumbar areas of the back. Her primary diagnosis on that occasion seems to have been “injured shoulder”. In her letter re-referring Mr Alelaimat to his usual GP, Dr Ismail Mohammed of Liverpool, dated 1 November 2012 (PSCB 8) she stated that the x-rays including spinal x-rays she ordered “were clear”, “but [Mr Alelaimat] has suffered severe and extensive bruising to his back”. Her clinical notes record that on 17 and 25 October 2012 his principal complaint was of back pain without radiation to the lower limbs, which she treated with strong pain killing medication including Tramal (PSCB 10), as he said.

  2. From Dr Mohammed’s clinical notes during November and December 2012, Mr Alelaimat’s principal continuing complaints were of pain in his upper and lower back. Dr Mohammed made a finding of muscle spasm in these areas which were treated with Valium.

  3. Dr Mohammed referred Mr Alelaimat for the Magnetic Resonance Imaging scan of the lumbar spine taken on 29 January 2013. The radiologist reported congenital shortening of the pedicles at L3/4 and L4/5. The radiologist’s impression was of “moderate congenital canal stenosis maximal at L4/5” (my emphasis). The lumbar discs were reported as being “intact”. I interpolate that Dr John Korber, whose evidence is referred to below, made his own assessment of the imaging and regarded the outline of the L4/5 disc as normal. This may be significant because the appearance of disc had changed markedly by 22 August 2014, prior to Mr Alelaimat undergoing his spinal surgery at the hands of Dr Al-Khawaja. A significant issue arose as to the connection between what was shown in the respective MRI results of 29 January 2013 and of 22 August 2014 prior to surgery. It is convenient to deal with those differences now.

  4. The MRI of 22 August 2014 was carried out by Dr Simon Dimmick on the referral of Dr Al-Khawaja. Focusing upon the findings at L4/5, Dr Dimmick reported (at CB 90):

“At L4/5 there is a moderate central/right paracentral disc protrusion. The protrusion and congenitally short pedicles cause severe central canal stenosis at this level. No neural exit foraminal stenosis. No significant facet joint artropathy.(My emphasis.)

At L5/S1, there is a central bulging of the invertebral disc without evidence of central canal or neural exit foraminal stenosis. No significant facet joint artropacy.”

  1. Following Dr Dimmick’s MRI scan, Dr Al-Khawaja, who had always been of the view that Mr Alelaimat was a candidate for decompressive surgery (CB 104), operated on Mr Alelaimat’s on 4 September 2014 carrying out a bilateral decompression at the L4/5 level. The procedure included the removal of a “big (disc) fragment pushing the right L5 nerve root” (CB 108).

  2. Regrettably, the procedure did not relieve Mr Alelaimat’s symptoms significantly. He also continued to complain of pain in his left shoulder from time to time and in his right hip and he was variously treated by Dr Todd Gothelf for his shoulder, Dr Al-Muderis for his right hip and was referred to Dr Marc Russo in October 2017 for a multi-modal pain management program.

  3. There was no doubt that Mr Alelaimat’s presentation at various treating and assessing medical practitioners has been complex and from time to time features what has been referred to sometimes as abnormal illness behaviour has been detected by assessing doctors. It is necessary to record here that Dr Samir Benjamin, a consultant psychiatrist to whom Mr Alelaimat’s was referred in May 2013 by Dr Mohammed, formed a very dim view of his presentation. He declined to make any psychiatric diagnosis and formed the view “there’s a strong overlay in his presentation, both physical and psychological”, which the doctor regarded as consistent with Malingering (CB 126-7).

Dr Darweesh Al-Khawaja

  1. Dr Darweesh Al-Khawaja, as I have said, is the treating and operating neurosurgeon. His 17 reports between 7 March 2013 to 27 February 2019 are in evidence (CB 103 - 125). Dr Al-Khawaja first saw Mr Alelaimat on referral from Dr Mohammed on or about 7 March 2013. He received a history consistent with the facts of the injury as I have stated them to be. It is most significant, in my view, given the medical issue, to record that on the initial examination Dr Al-Khawaja found neurological clinical signs as follows (CB 103):

“[Mr Alelaimat] has got significant limitation of flexion and extension of his lumbar spine. He has got positive Trendelenburg test on both sides. He has got decreased sensation at L5/S1 distributions on both sides.”

The accuracy of these findings was not challenged when Dr Al-Khwaja was cross-examined.

  1. He also formed his own view of the pathology shown on the MRI scan of the lumbar spine. This is within the competence of a specialist surgeon. A doctor does not need to be a radiologist to interpret an X-Ray image. In Dr Al-Khawaja’s view, the imaging “showed significant canal narrowing of L4/5 level caused by central disc herniation and facet enlargement and thickening of the pedicle” (my emphasis). Dr Al-Khawaja was of the view that the canal narrowing was causing Mr Alelaimat’s leg pain. As to medical causation he stated:

“I believe he has got thick pedicles, but the canal was still wide enough until he had the injury which gave him the central disc herniation”.

I repeat that from the outset he recommended the decompressive surgery not carried out until September 2014.

  1. He adhered to these views in evidence (225.50 – 226.2T). He also sought to demonstrate by displaying an imaging from the 29 January 2013 MRI scan the change he detected to support the opinion he expressed on 7 March 2013. This had its difficulties because not only am I not medically trained, which would be irrelevant to my role as the tribunal of fact, but it was very difficult to see what he was attempting to demonstrate as he gave his evidence remotely by audio visual link. The image was subsequently admitted as Exhibit L. I will not attempt to interpret it. Rather, I will confine myself to what Dr Al-Khawaja said about it. Pointing to the image Dr Al-Khawaja gave the following description (227.5 - .15T):

“… in the centre here is the canal, which should be rounded and wide, and if you look at the top there is a black disc there, rounded like black disc, and you can see the inferior margin of it, there is a blip or bulge in the middle of it, going into that canal in the middle.  …

… that is the middle bulge going into that nerve next to it, and you can see the facet - this is difficult, I should point to the facet joint, but I want everybody to see the central bulge, which is very, very clear.”

  1. In cross-examination Mr Priestley suggested to Dr Al-Khawaja that a disc herniation was not visible from the 29 January 2013 MRI scan. Dr Al-Khawaja responded that there wasn’t much of a difference between a disc herniation and a bulge as both of them are a herniation (228.39T). He said that the bulging of the disc involves a herniation (228.40T). Dr Al-Khawaja acknowledged that MRI scans often did not display any damage to the annulus but said that where the disc bulges there will be damage to, or a weakening of the annulus (229.15T). He was not prepared to accept that the centre of the disc could bulge without damage to the disc annulus (229.30T).

  2. In response to a question posed by Mr Priestley about whether the wear and tear of the discs in the lumbar spine usually resulted from a degenerative condition, Dr Al-Khawaja explained that everyone has degeneration of the lumbar spine but that it is only where there is significant weakness of the annulus from either minor or major traumas that symptoms are triggered (229.43T - 230.15T).

  3. Mr Priestley put to Dr Al-Khawaja that from the MRI scan of January 2013 the witness could only see a bulge but is unable to say whether the bulge is a result of a recent physical injury or not (231.12 - .15T). Dr Al-Khawaja accepted Mr Priestley’s proposition and explained that in making his findings he relies on the history provided by the patient in order to ascertain the cause and nature of the injury (231.16 - .23T). Dr Al-Khawaja said that in making an assessment of the damage caused to Mr Alelaimat he relied on the MRI scans coupled with the symptoms described by the patient (231T). He agreed that Mr Alelaimat’s complaint of leg pain was a significant matter in his decision to recommend decompressive surgery to him (232.24T).

  4. As I understood it, it was Dr Al-Khawaja’s opinion that the damage he detected in the L4/5 disc from the January 2013 scans progressed to the point where a much larger herniation had developed by August 2014. But in his opinion the larger protrusion developed as a result of the trauma of 10 October 2012.

Dr Neil Cochrane

  1. Dr Cochrane prepared four reports dated 2 August 2019, 12 August 2019, 27 August 2019 and 27 July 2020. He also gave oral evidence before me. Dr Cochrane confirmed that he viewed the MRI scan of 29 January 2013 before preparing any of his reports (206.26T).

  2. Mr Toomey asked Dr Cochrane to explain the architecture of the spine. In particular Mr Toomey asked him questions about the architecture of intervertebral discs. Dr Cochrane explained that intervertebral discs are composed of a disc wall or annulus and a nucleus pulposus (206.30T). A disc prolapse is where there has been a focal failure (a bulge of a disc or a protrusion) of the annulus to allow protrusion of the nucleus pulposus (206.40T). In response to a question from me, Dr Cochrane explained that claudication is where there is a progressive worsening of pain and/or weakness with movement of the legs (219.18T). The pain usually goes away after ten minutes, and the person is able to resume walking, but the symptoms come back (219.25T). It can occur for neurogenic reasons (219.20T) or for vascular reasons from poor blood supply to the legs (219.21 - .22T). Neurogenic claudication is where the spinal canal is narrowed and the nerves running through the spinal canal are compressed causing those symptoms (219.30T).

  3. When questioned as to how a disc protrusion could occur Dr Cochrane said that there can be no focal protrusion without any disturbance to the disc annulus, as there has to be some form of weakness or deficiency to allow the nuclear material to protrude through (207.2T). Dr Cochrane agreed with the proposition that sometimes there can be a disc rupture that sees the nucleus pulposus extrude through the wall of the disc (207.7T). And Dr Cochrane agreed that sometimes a disc rupture may be seen as a prolapse which means that there is some extrusion of the disc material into the wall but not through its outer casing (207.12T).

  4. Dr Cochrane said that the MRI scan of 29 January 2013 showed a congenital or longstanding abnormality of the entire lumbar spine known as congenitally short pedicles (207.25T). He considered there was a mild disc bulge of the L4/L5 intervertebral disc but no focal disc protrusion (207.27T). He observed that there was some pre-existing or post traumatic anomaly of the disc annulus which caused the disc bulge (207.33T). Although the terminology differs, I regard this as consistent with Dr Al-Khawaja’s evidence.

  5. Dr Cochrane said that damage to the disc annulus is not normally visible from a MRI scan (207.38T). In response to a question from Mr Toomey, Dr Cochrane confirmed that the incident as described by Mr Alelaimat would have been sufficient to cause damage to the disc annulus at the L4/L5 level (209.11T).

  1. I accept the figures calculated by Mr Morgan of Counsel. They are based upon the evidence of the amount earned by Mr Alelaimat’s according to Exhibits C, D and F. These demonstrate an average of $1,172 gross per week which produces a net figure after tax of $920 per week. This involves a period of approximately 500 weeks. Allowing a figure of $700 per week, notionally allowing a residual capacity of approximately $300 per week which takes into account the acute phases of his condition a figure of $350,000 is produced which I allow.

Past employer’s superannuation contributions

  1. I would allow nothing for the past under this heading. One works on the counter-factual that Mr Alelaimat would have continued in the same or similar occupation uninjured. It is obvious that no such contributions were being made by either DJ’s Scaffolding, his employer or for that matter Synergy Scaffolding. He was working for them on an “ABN basis” selling his labour as a “sub-contractor”.

Future economic loss

  1. Section 13 CLA applies. It seems inevitable that Mr Alelaimat’s situation is likely to continue unchanged as he is now 42 and he has effectively been out of the workforce for 10 years. His diminution of working capacity is likely to neither improve nor worsen. I would adopt the same approach to the future as the past, but I would increase the usual vicissitudes of 15 percent to a figure of 25 percent to take into account the Seltsam Pty Ltd v Ghalab factor.

  2. I would accept Mr Morgan’s argument that there is a mathematical coincidence between the figure for average weekly earnings in New South Wales and the level of Mr Alelaimat’s actual pre-injury earnings and accordingly I will adopt that figure as a guide. I accept his calculations that the net figure is $1,165, from which I will make a deduction of $350 for residual earning capacity. This leaves a figure of $815 per week. I will allow 25 years for the future up until the age of 67 by which Mr Alelaimat will be eligible for the age pension. The 5 percent multiplier for 25 years is 753.6. This produces a figure of $614,184. After deduction of the figure of 25 percent, I allow $460,638.

Future employee contributions

  1. I think it appropriate to allow employer superannuation contributions for the future. It seems unlikely that Mr Alelaimat would necessarily have continued with DJ’s Scaffolding or Synergy Scaffolding even if the probabilities are that he would have continued in a similar occupation uninjured. The Najdovski v Crnojlovic [2008] NSWCA 175 rule of thumb I am informed is 14.23 percent. I will allow a figure of $65,548.

Fox v Wood

  1. The Fox v Wood component for income tax deducted from weekly payments of compensation as at the date of hearing was $41,500 which I will allow. Given there may have been further payment since I will allow liberty to apply.

Future out of pocket expenses

  1. Dr Al-Khawaja, as I have said, expressed the view that Mr Alelaimat requires an anterior intervertebral spinal fusion at the L4/5 level. He gave a very rough estimate of $100,000 for the total cost of this procedure. Notwithstanding Dr Cochrane’s apparent agreement, I must say that given the time that has passed since the recommendation was first made and since the surgery on 6 September 2014, I regard it as quite unlikely that this surgery will ever eventuate. On the other hand, there is probably a need to make some allowance for the prospect of future treatment including a small prospect of a need for future surgery. I propose to allow the figure of $20,000.

Future commercial domestic assistance

  1. There is no claim for past gratuitous care or commercial care for that matter. Mr Alelaimat’s personal circumstances are modest. He is divorced from his wife and resides with a friend in rented accommodation. He has not been receiving formal assistance since the accident on a structured basis and it seems to me unlikely that he will incur the expenditure for commercial assistance in the future. I decline to allow anything for this head of damage.

Summary of damages

Non-economic loss                                                   $236,000.00

Past out of pocket expenses                                     $182,847.39

Past economic loss                                                   $350,000.00

Future economic loss                                                $460,638.00

Future employer contributions to superannuation       $65,548.00

Fox v Wood                                                                 $41,500.00

Future out of pocket expenses                                    $20,000.00

Future commercial care                                                 Nil

TOTAL                                                                     $1,356,533.39

Work injury damages

  1. Were I wrong to find DJ’s Scaffolding not negligent, I record that there was no issue that Mr Alelaimat’s level of permanent impairment was greater the s 151H WCA threshold of “at least 15 percent”. Given the limitation on damages that may be awarded under Division 3 of Part 5 WCA his damages would have been restricted to the amounts I have allowed for past economic loss, future economic loss, future superannuation contributions and the Fox v Wood component for my calculation of CLA damages.

DJ’s Scaffolding’s claim for statutory indemnity

  1. On the findings I have made DJ’s Scaffolding or rather the Workers’ Compensation Nominal Insurer, is entitled to recover the statutory indemnity provided for by s 151Z(1)(d) for the compensation paid to, for or on behalf of Mr Alelaimat limited to the amount of the damages I have assessed.

  2. Evidence was led as to the amount of compensation paid at the hearing but given the time that has elapsed during which my judgment has been under consideration, I will content myself with making a declaration of right and permitting the Workers’ Compensation Nominal Insurer and Synergy Scaffolding to bring in Short Minutes of Order setting out the judgment that should be entered in respect of the indemnity including interest under s 100 CLA.

  3. The cross-claims seeking statutory contribution should otherwise be dismissed and Synergy Scaffolding should pay the Workers’ Compensation Nominal Insurer’s costs of the cross-claims including the claim for statutory indemnity.

Costs

  1. Given that the claim in respect of liability of DJ’s Scaffolding was a claim for work injury damages there may be complexities in relation to the costs regime applicable and I will allow liberty to apply to Mr Alelaimat and the Workers’ Compensation Nominal Insurer in respect of that issue.

Orders

  1. My orders are:

  1. Judgment for the plaintiff against the first defendant in the sum of $1,356,533.39;

  2. Judgment for the second defendant as against the plaintiff;

  3. The first defendant to pay the plaintiff’s costs of the proceedings;

  4. Declare that the first defendant is bound to indemnify the second defendant in accordance with the provisions of s 151Z(1)(d) Workers’ Compensation Act 1987 (NSW) for compensation paid to the plaintiff with interest under s 100 Civil Procedure Act 2005 (NSW);

  5. Direct the first and second defendants confer with a view to agreeing upon the amount of the judgment necessary to give effect to order (4) and to bring in short minutes of order within 14 days by lodging them electronically to the email of the associate to Campbell J. In default of agreement liberty to apply on a date to be fixed in consultation with Campbell J’s associate;

  6. Cross-claims otherwise dismissed;

  7. The first defendant to pay the second defendant’s costs of the cross-claims;

  8. Liberty to the parties to apply within 14 days in relation to damages calculations in accordance with my reasons and costs.

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Decision last updated: 05 May 2022

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Cases Cited

39

Statutory Material Cited

5

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28
CDJ v VAJ [1998] HCA 67
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28