El-Kheir v Pinnacle Construction Group Pty Ltd - [2018] NSWDC 155

District Court

New South Wales

Medium Neutral Citation: El-Kheir v Pinnacle Construction Group Pty Ltd [2018] NSWDC 155
Hearing dates: 21 August 2017 – 24 August 2017 and 4 December 2017 – 7 December 2017Plaintiff’s written submissions: 2 December 2017Defendant’s written submissions: 7 December 2017
Date of orders: 14 June 2018
Decision date: 14 June 2018
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
1. Verdict for the Defendant;
2. Subject to any application to my Associate within 14 days to relist the matter for any further or other order as to costs the Plaintiff is to pay the Defendant’s costs;
3. Exhibits are to be retained for 28 days.

Catchwords:
TORTS – NEGLIGENCE – workplace injury – liability of host employer – duty of care – duty to take precautions against risk of harm – factual investigation
TORTS – DAMAGES – out of pocket expenses – economic loss – non-economic loss – domestic assistance – whether costs incurred were reasonable and necessary – factual investigation – whether plaintiff is malingering or exhibiting somatoform chronic pain disorder
Legislation Cited: Civil Procedure Act 2005 (NSW) s 97
Civil Liability Act 2002 (NSW) ss 5B(1), 16
Cases Cited: Chen v Zhang and Ors [2009] NSWCA 202
Sangha v Baxter (2009) 52 MVR 492
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
New South Wales v Fuller-Lyons [2014] NSWCA 424
Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82
Fuller-Lyons v New South Wales [2015] HCA 31
Henderson v Queensland [2014] HCA 52
Macks v Viscariello [2017] SASCFC 172 at [601]
Jones v Dunkel [1959] HCA 8; (1959)101 CLR 298
Leighton Contractors Pty ltd v Fox; Calliden Insurance Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35
Caruana v Darouti [2014] NSWCA 85
Lee v Wickham Freight Lines Pty Ltd [2016] NSWCA 209
Uniting Church in Australia Property trust (NSW) v Miller (2015) 91 NSWLR 752
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 320 ALR 235
New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Moravatjou v Moradkhami [2013] NSWCCA 157
Kuligowski v Metrobus (2004) 220 CLR 363 at 385 [60]
Lamb v Winston (No 1) [1962] QWN 18
Category: Principal judgment
Parties: Ali Kadour El-Kheir (Plaintiff)
Pinnacle Construction Group Pty Ltd (Defendant)
Representation:
Counsel:
Mr H Marshall SC and Mr J Masur for the Plaintiff
Mr R Cavanagh SC and Mr D Macfarlane for the Defendant
Solicitors:
AJB Stevens for the Plaintiff
RGSLaw for the Defendant

File Number(s): 2015/322585
Publication restriction: N/A

Judgment

Liability
The Plaintiff
Induction
Work Schedule
The Accident
Personal Protection Equipment

Hardi Azadian
Charbel Finianos
Joseph Bechara
Andrew Teltow
Role
Plaintiff’s Employment
9 May 2014
Accident
Personal Protection Equipment

Liability Findings
Conclusions on Liability

Damages
Pre Accident
Immediate Aftermath
The Plaintiff
Andrew Tetlow
Mariah Adams
Contact with Mr Hbouss

Aftermath of the Accident
Plaintiff’s Complaints
Plaintiff’s Treatment
Pharmaceutical Scripts
Physical Injuries- Medico Legal
Dr Michael Fearnside
Dr Rushworth
Dr Bodel
Associate Professor Jones
Conclave Associate Professor Jones and Dr Bodel
Conclusions on Physical Injury
Psychiatric/Psychological Injury
Dr John McMahon
Dr Vickery
Dr Bertucen
Conclave
Conclusions on Psychiatric/Psychological Injury
Loss of earning capacity
Pre Accident Earnings
Post-Accident Earnings
Youssef Nassif
SC Form-Plaintiff
SC Form - Khaled El Kheir
SC Form-Mariah Adams
Further Evidence as to Accounts
Conclusions as to Loss of Earning Capacity
Out of Pocket Expenses
Non-Economic Loss

Conclusion and Orders

Judgment

Pursuant to an agreement dated 3 September 2013, [1] the Defendant had been engaged by DEP (Gladesville) Pty Ltd to construct a mixed commercial and residential unit complex at 5-11 Meriton St, Gladesville in the State of New South Wales. On or about 20 November 2013, the Defendant entered into a sub-contract agreement with Dynamic Formwork Pty Ltd. [2]
1. Exhibit 1D1 to Defendant’s Witness Statements p. 91
2. Exhibit 1D1to Defendant’s Witness Statements pp 92-106 (Hereinafter referred to as ‘Dynamic’)
Whilst working as a form worker for Dynamic on 9 May 2014, the Plaintiff occasioned injury at the subject site.
The Plaintiff seeks damages from the Defendant in this regard.
Although the Defendant disputed aspects of the Plaintiff’s employment it appeared to accept that at the time of his accident he was employed by Dynamic. [3]
3. Defendant’s Statement of Facts-Issues in dispute-Questions of fact 1; also Amended Defence at [34]
The Defendant did not dispute that the Plaintiff occasioned injury, although the circumstances, extent and liability for it were disputed. [4]
4. Defendant’s Statement of Facts-Issues in dispute-Questions of fact 1-6

Liability

Apart from the Plaintiff himself, two persons asserted to be co-workers, Mr Hadi Azadian and Mr Charbel Finianos were called in his case. The Plaintiff’s wife, Ms Mariah Adams also gave evidence.
Following the conclusion of these witnesses’ oral evidence and an adjournment of the hearing, the Defendant applied for the Plaintiff, Mr Finianos and Ms Adams to be recalled for further cross examination. [5] For reasons given on 7 December 2017, I allowed a limited recall of each of these persons. [6]
5. Notice of motion dated 4 December 2016
6. See Judgment dated 7 December 2016
Neither Mr Finianos nor Ms Adams responded to the call made on subpoena. [7] The Defendant did not seek an order [8] pursuant to s 97 of the Civil Procedure Act 2005. [9]
7. Exhibit 6, p. 37 (Mr Finianos was served personally) and T 484.24
8. T 487.15
9. Hereinafter the ‘2005 Act’
On 5 December 2017, the Plaintiff’s Senior Counsel indicated that he did not believe Ms Adams was residing with the Plaintiff. [10] The subpoena addressed to her had been the subject of a substituted service order. [11] There was evidence tendered that before the Refugee Review Tribunal in 2013 and subsequently in this case that Ms Adams had supported the Plaintiff’s claim for a protection visa on the false basis of him being a homosexual. [12]
10. T 482.47
11. Exhibit 6, Affidavit of Murray Tavener dated 6 December 2017 at [5] and Annexure D
12. Exhibit 20 at [12] and [105]
In the case of Mr Finianos, the terms for the recall included, leave to cross-examine in relation to documents produced by the Department of Immigration and Border Protection, [13] which show that he departed Australia on 9 April 2014 and returned on 2 May 2016 and hence was not in Australia on the accident date. [14] .
13. Exhibit 8, tab 9
14. Exhibit 8, tab 9
In the case of the Plaintiff, the terms for the recall included the questions of Mr Finianos’ involvement in the proceedings. Although there was an application by the Plaintiff to adjourn the proceedings, and re-open its case for reasons given on 7 December 2017 I refused to accede to it. Ultimately, no case in reply was called. [15]
15. T 577.26-578.31
The Plaintiff was recalled. He maintained that Mr Finianos was not close to him at the time of the accident, [16] and that he was on the job site. [17] He stated that he informed his solicitors that he could be a witness in the case. [18] When it was put to him that Mr Finianos was not even in Australia at the time of the accident, he stated that he was on the job site and he saw him, [19] and that he was telling the truth. [20] In re-examination, he stated that he had a conversation with Mr Finianos concerning his accident after he “saw him at the job site for Yossef Nassif,” and was working at the site at the time. [21] He stated that as a result of the conversation, he asked Mr Finianos to come with him to see his lawyer, to help him in his case, which he did. [22] Mr Finianos also said in his statement that he had seen the Plaintiff at a job site where he observed him to be performing light duties. [23]
16. T 498.12
17. T 498.18
18. T 498.22
19. T 498.29
20. T 498.32
21. T 505.43-.47
22. T 506.19-.24
23. Exhibit H at [15]
Mr Youssef Nassif whose substantive evidence I will address later in these reasons gave evidence that he knew Mr Finianos as he was from the same area in Lebanon. He said that prior to the hearing, he met him maybe a year and half ago but that he had never worked for him and he didn’t know that he knew anything about the matter. [24]
24. T 179.12-.18
The Defendant submitted that the Plaintiff’s involvement of Mr Finianos in the matter was such that the claim should be dismissed as the Plaintiff was involved in fabricating evidence. Beyond this, it drew attention to the fact that the Plaintiff applied unsuccessfully to obtain a protection visa falsely asserting that he was homosexual and falsely maintaining that claim on appeal. [25]
25. Exhibit 8 and Defendant’s written submissions at [8]
The Plaintiff’s counsel conceded concerns as to the Plaintiff’s credit but submitted that it is more appropriate to treat the Plaintiff’s evidence with caution, particularly where it cannot be corroborated. [26]
26. Plaintiff’s written submissions at [4]
I do not consider the proceedings should be dismissed in these circumstances without analysing the evidence further. [27]
27. See Chen v Zhang and Ors [2009] NSWCA 202 per Sackville AJA at [51]-[52]
I have earlier referred to Youssef Nassif. He and the Plaintiff’s brother, Mr Khaled El Kheir were called as to the Plaintiff’s post-accident employment and assistance said to be provided to the latter.
For reasons beyond those stated thus far, I have had serious cause for concern about the credibility and reliability of the Plaintiff, Ms Adams and other witnesses called in his case; particularly Mr Azadian and Mr Finnianos. This will be discussed further in these reasons
In the circumstances, I have closely analysed all the evidence in accordance with the principles enunciated by Basten JA in Sangha v Baxter where his Honour stated:-

There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.

Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44]. [28]
28. (2009) 52 MVR 492, (with whom Handley AJA agreed) at 526

In the Defendant’s case, evidence was called from Mr Joseph Bechara and Mr Andrew Tetlow.
Mr Bechara was the Director of the Defendant and indicated he was a construction manager responsible for the day to day running of construction work. Mr Bechara, prepared two statements dated 21 October 2016 and 15 August 2017. [29]
29. Exhibit 9 and 10
At the time of the construction, the Defendant was not running any other construction project and Mr Bechara stated that he was present on-site most days undertaking duties being:-

Checking progress of works;

Reviewing supplies;

Making sure that everything was going okay; and,

Taking complaints. [30]
30. Exhibit 10 at [7] (Statement of Joseph Bechara, dated 21 October 2016)

Mr Bechara recalled that on or around September 2013, the Defendant commenced the process of sub-contracting work for the construction including sub-contracting formwork to Dynamic. In relation to the construction, the Defendant engaged a number of staff, including Mr Andrew Tetlow. Mr Tetlow was employed for a period of three years, up to the end of February 2015. [31]
31. Exhibit 9 at [3] (Statement of Andrew David Tetlow date 15 August 2017)
Mr Tetlow was described by Mr Bechara as being the site manager, whose duties during the construction include:-

Organising and facilitating tradeworks;

Making sure contractors turned up to site;

Ensuring that construction works were being undertaken in accordance with the architectural plans and programs;

Site inductions; and,

Making sure diaries were maintained and updated.

Specifically, Mr Tetlow was working on the site, on and around the date of the accident. A statement as to the accident dated 22 May 2014 was prepared by him for presentation to the Human Resources team for investigatory purposes. [32] He stated that he believed that this was something to do with the insurance company. [33]
32. Exhibit 9, Annexure A
33. T 543.06
Mr Bechara also stated that the Defendant employed Mr Dennis Harden as a labourer on-site to provide the following:-

General cleaning;

Ad-hoc construction work when directed to do so by the Defendant; and,

Safety tasks.

Mr Bechara stated that Mr Harden did not perform work duties for any other contractors. In order to assist Mr Harden, Mr Elias Youssef was employed as a labourer under the supervision of Mr Tetlow and his duties included:- [34]

Traffic management;

Managing deliveries; and,

Unloading materials and material handling.
34. Exhibit 10 at [9] (Statement of Joseph Bechara, dated 21 October 2016)

Neither Mr Harden, nor Mr Youssef were called to give evidence.

The Plaintiff

Induction

The Plaintiff stated that he obtained a position with Dynamic after being advised by his cousin to contact a Mr Tarek Hbouss who had a company that did formwork. He said that he called him and was referred to a person named “Maneh,” who he contacted and said that he was a carpenter looking for a job. He was told that he could start on Monday and to go to the site. He stated that when he got there on 5 May, he met Mr Maneh Hbouss, who was Tarek Hbouss’ brother. [35]
35. T 28.25-.39
On 5 May 2014, the Plaintiff attended an induction carried out by the Defendant on the subject site. A document titled “Pinnacle Construction Group Site Induction Form” dated 5 May 2014, containing his name was tendered and states:-

“I have attended the Allpro’s site induction program, which explained and detailed the Allpro’s site safety and environmental rules, work conditions and other worksite requirements. My responsibilities and obligations were appropriately explained and are clearly understood by me, and I hereby declare that I will comply with Allpro’s induction requirements.” [36]
36. Exhibit 1

The inductor identified, was Mr Andrew Tetlow.
The Plaintiff stated, whilst his name was on the induction form, he did not recall if that was his signature. [37] Later he stated that it was not his signature. [38]
37. T 95.45-.46
38. T 96.14-.28
He further stated that he did not recognise any of the handwriting on the page [39] and it was not his own. [40] He added that he could not remember whether he wrote his name. [41] The employer identified on the form was Fast Form Group NSW. He said he had never seen that before [42] and did not know who they were. [43] He claimed that he did not say that he was employed by Fast Form Group NSW. [44] Despite this, the Plaintiff’s response to the Statement of Facts in Issue identified agreement with the claim made by the Defendant, that he attended an induction on the site on 5 May 2014 and signed an induction form listing his employer as Fast Form Group NSW. [45]
39. T 96.30
40. T 96.43-.44
41. T 96.47
42. T 96.33
43. T 97.23
44. T 97.26
45. Defendant’s Statement of Facts and Issues in Dispute-Statement of Facts at [7]; Plaintiff’s Statement of Facts and Issues in Dispute-Facts at [1]
Further, despite denials in cross-examination in relation to the induction form, the Plaintiff in his statement and evidence in chief stated that he was required to sign a “safety form.” [46] The Plaintiff also stated that he did not read it before he signed. [47]

Work Schedule

46. Exhibit A at [13]; T 28.47

47. T 28.50

The Plaintiff’s evidence was that apart from the date of his induction, he worked every succeeding day leading up to 9 May 2014, when he occasioned his injury. [48]
48. T 98.36
In cross examination, the Plaintiff rejected the suggestion that he only expected to get three days’ work out of the job. [49]
49. T 113.14
It was further put that after the induction on 5 May 2014, the Plaintiff left the site and did not return until the date of the accident. The Plaintiff rejected this proposition. [50] It was put to him that Fast Form, identified as the employer in the induction form, did not actually give him any work. The Plaintiff stated that he did not know who Fast Form was, [51] and rejected the suggestion that he rang Mr Hbouss later in the week and asked if he had any work. [52] He further rejected that the first day that he did any work on the site was 9 May 2014. [53]
50. T 97.50-98.06
51. T 98.20
52. T 98.26
53. T 98.30
The Plaintiff gave evidence that on the day that he attended the induction he started at 6:30am and subsequently at 7:00am started work there. He stated that Maneh Hbouss told him that the name of the company was Dynamic Formwork.
The Plaintiff described the instructions that he was given by Mr Hbouss as follows:-

“On Monday we did work on a column - construction regarding the columns. On Tuesday there was a wall, a large wall that on the construction site we have to work on. On Wednesday it was raining. On Wednesday when it was raining, we worked in the basement, on the roof, on the ceiling. On Thursday we completed the work on the columns, and on Friday I was working on the columns and this is when I got hurt.” [54]
54. T 98.48-99.03

The Plaintiff’s evidence was that on 9 May 2014, he started work at 7:00am and Mr Maneh Hbouss was not on the job site. He stated that he called him and was told to “ask Mahmoud,” who was the supervisor of the form workers. He stated that he was told that Mahmoud would tell him what to do. [55] He stated that he proceeded to ask Mahmoud what to do and was told, according to his statement, the basement level of the building had been laid and concreted and the columns were up and the next floor had been formed in slabs. He stated that they were working on forming up four columns so they could be poured when the third level would be slabbed as well. [56]
55. T 99.43-.44
56. Exhibit A at [16]
In cross examination it was put to the Plaintiff that when he attended the job-site, on 9 May 2014, he met Mr Hbouss there and he was told to go and work with Mr Mahmoud Hamoud. The Plaintiff rejected this [57] but later conceded Mr Hamoud was there at the time of the accident, he was a form worker and was in charge on the day of the accident. [58]
57. T 112.01-.13
58. T 112.29-39
The parties acknowledged that Lbars (otherwise referred to as starter bars) was a term, given to the piece of metal which runs horizontally in the reinforcing cage in the slab or footing and then turns up at 90 degrees extending above the level of the slab or footing. The reinforcing cage of the column was typically tied to the starter bars during the process of installing the formwork for that column before concrete is poured so as to make the vertical concrete column properly attached to the horizontal concrete member below it. [59]
59. Defendant’s Statement of Facts and Issues in Dispute-Statement of Facts at [4]-[5] and Plaintiff’s Response to Statement of Facts and Issues in Dispute at –Facts at [1]

According to the Plaintiff, when each level of concrete is laid, L-bars are in put in place to identify where the columns are to be built, and concrete is then poured around the L-bar so that the horizontal part of the steel bar is completely covered in concrete with only the vertical part of the steel bar protruding. He stated that generally speaking, the form worker would form up three sides around the steel bars, leaving one side open until a cage has been lowered and tied together. Once the steel cage has been lowered and tied to the steel bars, the form worker would then form up the final side of the column so that the concrete could be poured. [60]

The Accident

60. Exhibit A at [17]

The Plaintiff stated that on the morning in question he had been working to form columns around the steel bars so that the concrete could be poured to form the columns. He heard Mr Andrew Tetlow speaking to one of his labourers and saying words to the effect of, “we don’t need these L-bars, they are in the wrong place, remove them.” He said that he knew Mr Tetlow was speaking to one of his labourers as he heard him to asking “his boys’ to cut the columns and before that if the labourers are for the builder they’re cleaning they do something for the building “that mean they’re working for Andrew.” [61] The Plaintiff said that he continued to work. In cross examination the Plaintiff that he heard Mr Tetlow say those words at half past 7 or 8 o’clock in the morning and that the accident happened at 9.30, 10 o’clock. [62] When questioned about what he heard Mr Tetlow say to one of his labourers prior to the accident, the Plaintiff stated that he heard him say that “this column, we don’t want it.” He said that they cut it by grinder. He said that between the time that he heard those words and the time of the accident, he had been working in the one area. [63]
61. T 31.40-.43
62. T 110.10-.14
63. T 110.16-.26
The Plaintiff’s evidence in chief was that on the day in question, there were more than ten columns on the floor and before the cage was dropped, three sides of the column were formed. [64] He stated that they build three sides of the columns in order to secure the cage, after which, they close the remaining side. [65]
64. T 33.43-.49
65. T 33.47-34.02
The Plaintiff stated that later in the morning, he was told by Mahmoud, to form up the final side of the subject column. He stated that he had not worked on this particular column before and did not know who had formed up the three sides of the column. [66]
66. Exhibit A at [19]
In cross-examination it was put to the Plaintiff that the column was not due to be filled for another three days. He stated that he was told that he had to work very fast and that he had to finish quickly. He stated that Mahmoud, told him:-

“Ali, we want to finish the column today. We want to be ready for the column and when everyone in the job site and the formworker, they weren’t, they weren’t be, like stronger, quickly, do everything to, to the boss to like him, to give him job everyday, to… (not transcribable)… job. [67]
67. T 103.44-.48

The Plaintiff maintained that he was working on the column together with his co-worker named, Merhej. [68] According to the Plaintiff, a crane was overhead at the time and was lowering the steel cage which was to be tied to the steel bars but it could not fit and could not be tied. He stated that when the crane lifted the steel cage, he could see that one the steel bars was bent and was not vertically aligned. In these circumstances, he stated that, the crane was overhead and was waiting for the problem to be fixed. [69] He stated that he could not stand in front of the column for forty-five minutes waiting for the someone to come as it would be suggested that he was standing there doing no work and then he would be sent home. [70]
68. Exhibit A at [19]
69. T 36.19-.30
70. T T37.38-.41 and 102.48-.50
The position of the steel cage, referable to the column was depicted in a diagram in Exhibit B. The diagram identifies in stages 4 and 5, a bar being bent to the right indicating that the cage could not be pulled down.
In cross-examination, the Plaintiff maintained that the bar was bent before the cage was lowered onto it. [71] He stated that he noticed that it was bent when the steel cage was being lowered inside the wooden column. He thereupon told the crane driver that they were going to have to lift the cage so that he could fix it. [72] He conceded that he knew that it was not his job to fix it. [73] He stated that knew that it was the steel fixer’s job [74] although he had fixed that sort of problem himself. [75]
71. T 102.25
72. T 102.29-.31
73. T 102.34
74. T 36.34 and T 102.41
75. T 36.43
The Plaintiff asserted that he called for the steel-fixer three or four times but no one came, they were busy working on the other side and he could not wait for them as they wanted to pour the concrete the following day and there was urgency. [76] In cross examination the Plaintiff acknowledged that he did not mention anything about calling out for steel-fixers in his statement. [77]
76. T 37.24-.27
77. T 111.05
He therefore proceeded to grab a “U-jack” which was lying nearby so that he could manually straighten the bent bar. He stated that he had done this before on other construction sites and had seen it done by many before in his lifetime on other construction sites. [78]
78. Exhibit A at [20]
He stated that the U-jack was approximately ten kilograms in weight and was “hollow.” [79] He stated that surrounding the bars, one of which was bent, there was formwork on three sides [80] and was 3.6 metres in height. [81] He stated that when he used the U-jack, he was pulling back with all his power. [82] He said that the steel bar came away quickly at which point, he was struck on the forehead.
79. T 37.11
80. T 38.05
81. T 38.14
82. T 40.24
According to the Plaintiff, he did not have time to see if the steel bars had been set in concrete or epoxy glue, given that the crane was waiting overhead to lower the steel cage. He did not think that the steel bar could have been set in epoxy glue [83] and nobody had told him that the steel bar had been set in epoxy. [84] He proceeded therefore to place the U-jack over the bar and pull the bar so that vertical alignment of the bar could be achieved. After attempting this manoeuvre, the bar came away from the concrete and the U-jack struck the Plaintiff and hit the top of his head. [85]
83. Exhibit A at [21]
84. T 37.47
85. Exhibit A at [22]
The Plaintiff conceded that Mr Hbouss did not give him any instructions that if steel fixing was required to wait for a steel fixer nor any instruction as to how he should try and straighten the L-bars. [86]

Personal Protection Equipment

86. T104.03-.12

The Plaintiff maintained that at the time of the accident he was wearing a hard-hat, however, as the U-jack hit his head and he fell down on his back, that the helmet came off of his head as he fell back and got hit. [87] However, in cross-examination, it was put to the Plaintiff that he knew before the accident that he had to wear a hard-hat around the site. [88] The Plaintiff responded that he was wearing the hard-hat. [89] He maintained that Mr Tetlow did not tell him that he had to wear a hard-hat because he did not even talk to him before the accident. [90] He stated that following the accident he was taken by some youths to the lunch room. Although he couldn’t recall speaking to Mr Tetlow in the lunch room he denied telling him that he was not wearing a hard-hat at the time of the accident. [91] He stated that when he hit his face as he was pulling on the U-jack, the steel bar jumped from the ground, he fell backwards and the hard-hat fell off of his head and it was the U-jack that hit his head. [92]
87. T 41.25-.35
88. T 100.47
89. T 100.49
90. T 101.01-.04
91. T 104.27-.47
92. T 105.06-.08
The Plaintiff further denied telling Mahmoud Hamoud that he was not wearing a hard-hat at the time of the accident. [93]
93. T 112.47-.49

Hardi Azadian

Mr Hardi Azadian described himself as steel fixer. [94] He stated that he met the Plaintiff on the job site where the accident occurred. Mr Azadian stated that he would not describe the Plaintiff as a friend but as a work colleague and that after the accident, he did not see him until he was asked to make his statement on 10 July 2017. [95] He had stated that he had been working as a steel-fixer from 2013. [96] In cross-examination however he qualified this by stating that there was no interpreter available when he made the statement and the conversation was not clear. He said that he was trying to say that 2013, was the starting point of his work with “Eddie,” however that did not mean that he had been working for him since 2013. [97]
94. Exhibit D
95. Exhibit D at [17]; T129.27-.36
96. Exhibit D at [2]
97. T 133.33-.37
Mr Azadian said that he was not trained as a steel-fixer as referred to in the statement, but rather as a labourer. [98] When specifically asked when he last worked as a steel-fixer, he said “maybe once or maybe not even once, when the incident happened for Ali, maybe that was the only time.” [99]
98. T 133.39-134.12
99. T 134.15-.16
In relation to the day of the accident, Mr Azadian said that he working as a steel-fixer, but was a labourer for Eddie. [100] He said that he started working for Eddie, who told him what to do and was carrying iron and other metals for other professionals. [101] He said that he came to work on the site as he was very new in Australia and was trying to find a job and one of his friends was working with or knew Eddie and told him that he could come and do this work. He said that he tried for two days, it was very hard and difficult and he did not continue. [102] Specifically, he stated that he worked on the site for three days, being two days prior to the accident and the day of the accident. [103]
100. T 134.27
101. T134.40-.44
102. T136.05.-08
103. T133.03-.18
Mr Azadian stated that when he went to the job at Gladesville, he was given a short induction by the builder’s representative. He recalled having some safety issues explained and there were matters which involved safety boots, helmet and safety glasses. He was told where the toilets were, where the office was, where he could get water and where he had to put the rubbish and he was also shown the lunch area. [104]
104. Exhibit D at [2]
Despite the contents of his statement in his oral evidence, Mr Azadian said that there was an explanation given to white card holders and an induction of “for example, [when]… lunchtime is, where the bathroom is, these kinds of things.” [105] He conceded that he did not report his presence to the builder, but only to Eddie. [106] He said he spoke to Eddie and told him that he needed an induction and he was using some people who had white cards in their pockets. He said that Eddie was meant to bring a white card for him. He said that because he was new and unable to communicate in English and his job was running behind, and the builder wanted to push this forward they did not take this induction very seriously. [107]
105. T136.30-.33
106. T136.36
107. T135.30-.36
Mr Azadian stated that his boss, Eddie took instruction from the builder who was also the man who gave them their inductions. He stated that he also took instructions from Maneh, who he knew from other jobs and knew that he gave his boss, Eddie work. [108]
108. Exhibit D at [3]
Mr Azadian went on in his statement to record:- [109]
109. Exhibit D at [4]-[6]

“After I had been working on the site for some time, I saw the builder having a discussion with another man concerning some steel rods which had been in place before the cement floor had been poured. It had since hardened. I do not know the name of this man that the builder was having a discussion with. I know that he was not working for Eddy or Maneh. I saw the builder point to the rods and point to the cement floor a few centimetres away. This man then went to the builder’s office and came back with a grinder which he used to cut the metal rods off from the concrete slab. He then got an electric drill from the office and started drilling several holes in the concrete slab. He then got a glue gun from the office and applied the epoxy to the holes that he had drilled. He then placed the metal rods which he had cut earlier into these holes.

The man who had performed that work which I have just described I believe was employed by the builder. I believe this because the builder informed us during our induction who the builders’ workers were. This was one of those men. Whenever I had needed equipment which we did not have, I asked one of these workers for the equipment, as we have been instructed by the builder to do. The workers, including the man who did the work which I described in the preceding paragraph, would get the equipment from the office and bring it to us.

The reason for drilling the holes into the concrete to install the metal rods indicated to me that the builder had either changed the plans or that the steel rods were originally put in the incorrect place. In either event, my experience as a steel fixer informs me that the movement of steel rods was a decision that only the builder on the site could make.”

In cross examination Mr Azadian stated that prior to the accident he was moving around the metal bars and there were two more professionals who were working there doing steel-fixing; he was helping too. [110] He said that his role was to stay close to those two professionals and if they needed something, he would give it to them. [111] During the incident, he said that people were connecting and fixing up a column and he was giving them the things they needed from a bag. [112] The two professionals were connecting and tying off the columns. [113]
110. T136.46-.50
111. T 137.05
112. T 137.16-.23
113. T 137.22
Mr Azadian further stated that he saw the workers put the metal bar in. He said he knew that because it was just one person and it was explained that if he wanted anything, he should try and get it from him. [114] He stated that was the person that works “for the boss.” [115] The discussion between the builder and the other man concerning the steel rods was said to have taken place on the day of the accident or perhaps a day earlier. [116] In his statement, he said that he did not know the name of the person that the builder was talking to, and that he was “not working for Eddie or Maneh.” When asked in cross-examination, the name of the person the builder spoke to, Mr Azadian stated that he was talking to Maneh who was in charge of the formwork staff. [117] He later recanted and said it was “a labourer who is working for the main boss.” [118]
114. T 141.41
115. T 142.06
116. T 142.45-143.11
117. T 143.10-.18
118. T 144.02
Mr Azadian gave evidence that Maneh “came towards the steel fixers and explained to them that the work needs to be finished.” [119] He stated that he saw Maneh in the same area as he was working for an hour or some before the accident occurred. [120]
119. T 144.11 (referring to the column)
120. T 144.20
When asked whether he saw the person get the glue gun from the office and apply epoxy to the holes, he stated that he saw the person going backwards and forwards to the office to bring the grinder or “anything” but he was mainly focused and concerned on his own jobs and was not keeping an eye on him, to see what he was doing. [121]
121. T144.32-.35
He noted that he was not sure when the concrete pour was due but they intended to pour the concrete as soon as they could, and the job was under “a lot of push.” [122] He maintained that he knew the person was grinding and putting the bars in the holes as well as drilling the holes in the area as it was close to him. [123]
122. T144.50-145.01
123. T145.10-.17
Mr Azadian was adamant that he recalled Maneh being always present when he worked. He stated that he worked there for two days and he was there for the whole two days and that he recalls the boss or builder telling Maneh that he needed to sort out the metal bars. [124]
124. T146.15-.26
At the time of the accident, Mr Azadian stated that the overhead crane was lowering metal bars to where the steel reinforcement rods were sticking up out of the concrete. He stated that the metal bars were lowered and tied to the steel reinforcement bars sticking up from the concrete. He recalled the steel reinforcement rods that had been moved by the builder were not all vertical and one of the steel bars was not straight and protruded from the hole in which it had been placed at an angle, which meant that the metal cage that was being lowered could not fit around it. [125]
125. Exhibit D at [7]
Mr Azadian stated that the Plaintiff was moving the formwork from one side of the column when his boss, Eddie, said to him, “go help him.” He stated that he started to go over to where the Plaintiff was and as he approached, the Plaintiff had the timber removed and placed U-jack over the protruding steel rod. He stated that he then started pulling it towards him to try and straighten it. At that point, “he was about 1-2 metres away.” [126]
126. Exhibit D at [8]
Mr Azadian stated in cross-examination that he was asked to assist the Plaintiff about ten minutes before the accident, and that he was assisting him for those ten minutes. [127] He stated that the Plaintiff did not call out for any steel fixers in the ten minutes he was around him and immediately before the accident. Mr Azadian stated that this was his job and it was one piece of metal that he should have been able to manage. [128] He acknowledged that it was part of his job to fix bend steel but stated that they did not want to lose time, whilst steel fixing needed to be done and everyone can do it. He then stated that it was only part of the frameworks people’s job. [129]
127. T138.08-.16
128. T139.02-.04
129. T139.10-.14
Mr Azadian conceded that if he was trying to fix the steel, he would have pushed it away from him. [130] He stated that the Plaintiff, to his observation, could have pushed the steel away rather than pulled it. [131] When specifically asked whether he knew what happened to the steel bar, that the Plaintiff was attempting to straighten prior to the accident, he stated that he was concentrating on his own duties but the builders, workers or labourers had put the metal bars in the holes in the ground. [132] He maintained that he saw the workers put the metal bar in. [133]
130. T139.29
131. T139.45
132. T141.20-.22
133. T141.36
In cross examination, Mr Azadian reiterated that the metal bar came out of the ground. [134] He stated that after the Plaintiff left, the other friends and colleagues and Eddie had a look at the hole and the hole was too shallow. [135] In his statement however, the stated that:- [136]

“In my experience, ordinarily it is not too difficult to straighten a steel rod in those circumstances, it is usually done by hand and usually a U-jack is used. The reason that the rod popped out of the ground was either that the hole in which it had been placed was not sufficiently deep, or that the glue in which it had been placed was insufficient or insufficiently set. I think the latter is unlikely, given that the accident happened about 2 hours after the builder’s worker had applied the glue. Usually this glue takes about half an hour to set.”
134. T138.25-.26
135. T145.45-146.12
136. Exhibit D at [11]

In his statement, Mr Azadian, stated that as the Plaintiff was pulling the steel rod towards him, it suddenly came out of the cement slab and hit him on the head, near the top of his head, that he was wearing a safety helmet at the time and that the Plaintiff fell down and his safety helmet fell off his head. [137] In cross examination Mr Azadian maintained that the Plaintiff was wearing a hard-hat and added that the company was very sensitive about these things and that they were all wearing a hard-hat. [138]
137. Exhibit D at [9]
138. T139.48

In his statement, Mr Azadian stated that he did not write the words on the Injury Notification Form under the name of Hadi Hardinpour, [139] or the Injury Notification form, under the name of Mohammad Havari. [140] He stated that in the first document he did not fill in the details and did not sign it. [141] In the second document, he said it looks like his signature, but he did not complete the document and it was blank when the builder asked him to sign it [142]
139. Exhibit 2
140. Exhibit C
141. Exhibit D at [13]
142. Exhibit D at [14]
He said that shortly after the accident the builder took him to the builder’s shed and he was asked to write his name and sign a blank form. He said he wrote “Hadi” and signed the paper and the builder told him that he would fill in the details later and nothing would happen to him. [143]
143. Exhibit D at [12]
In examination-in-chief, the witnesses’ attention was drawn to an Injury Notification Form. [144] Mr Azadian stated that he did not know any Hadi Hardanipour by that name and that the signature contained on the document was not his. [145]
144. Exhibit 2
145. T 129.43-130.08
Mr Azadian was also asked whether he knew of a person by the name of Mohammad Hervari. He responded that he knew that person. [146] He identified as his signature on this Injury Notification Form [147] which he marked with a red circle being adjacent to the name of Mohamad Hervari. [148] He stated that he could not remember whether there was any of the hand writing on the document that he identified before he signed it. [149]
146. T 130.06
147. Exhibit C
148. T 130.10-.17
149. T 131.10
In cross-examination, Mr Azadian conceded that he does not write English and with reference to Injury Notification Form, the name, Mohammad Hervari was not him, nor a name that he used. He stated that he could not identify anywhere on the document, where his name was written as opposed to a signature, [150] and that he was not any of the three people referred to in the document. [151]
150. T 132.24-.37
151. T 132.41-.133.01
On the day of the accident there was evidence of a Tool Box Talk involving “Eddy Morebani” as Manager/Presenter. [152] Adjacent to a name of Mohammad Hervari on the sign-off sheet Mr Azadian circled what he claimed was his signature in red. [153] He stated that he did not attend the toolbox meeting. [154] He could not remember if there was any writing on the sign off sheet before he signed but he didn’t fill in any of the details. [155]
152. Exhibit E
153. T 130.10-.17
154. T 135.14-.18
155. T 130.17

Charbel Finianos

On 22 August 2017, I was informed by Senior Counsel for the Plaintiff that it was proposed to call Mr Charbel Finianos to give evidence. [156] Further I was advised that a statement from Mr Finianos had not been served upon the Defendant prior to that time. [157] There was some issue as to whether directions had been made requiring such service. [158]
156. T 147.25
157. T 147.30
158. T 147.35-148.45
Be that as it may, Mr Finianos did give evidence and a statement signed by him, dated 10 July 2017, which was admitted. [159] Mr Finianos’ statement asserted that he knew the Plaintiff from having worked at a building site in Canberra some six years prior. He stated that he had worked with the Plaintiff from time to time on various other building sites, but would not describe him as a friend as they did not socialise together away from work sites. [160] He stated that he was an experienced form worker, having worked since 2002. [161] His evidence was that at the time he was working for Supreme Formwork and his boss was a person who he described as “Ehab Arjaar” but he was not sure of the spelling. [162]
159. Exhibit H
160. Exhibit H at [2]
161. Exhibit H at [3]
162. Exhibit H at [4]
Mr Finianos stated that he had arrived at the job at Gladesville and was told to go and ask for Maneh. His evidence was that his first day at work was the Thursday before the accident. [163] He accepted that no one told him to go to the building site before that Thursday. [164] The purpose of his attendance at the building site on that day was to help pour the columns. [165] In oral evidence, Mr Finianos stated that he met a man called Maneh at the site on Thursday but did not see him on Friday. [166] He stated that whilst he was working around the area where the Plaintiff had his accident, he did not see Maneh at the time. [167]
163. T 192.18; Exhibit H at [4]
164. T 192.24
165. T 192.27
166. T 194.43-.47
167. T 194.49-195.04
In his statement, Mr Finianos stated that prior to the accident, at about 8am, he saw a man cutting steel rods that had been set in concrete with a grinder. He said he drilled some holes nearby and he used epoxy glue in the holes which he had drilled. He then replaced the steel bars in these holes and they protruded from the concrete about 800-900 millimetres. [168] On the basis of his observations, Mr Finianos stated that the holes were about 20-50 millimetres deep and a blower was used to clean out the holes before the epoxy was placed within. He stated that he slid the metal rods on top of the epoxy. The person was not someone that was known to him was definitely not a form worker or part of the form working team. He stated that he had never known a form worker to do that type of job, it was the type of job that a builder or builder’s team would do and in particular that he did not have that job to make the hole. [169]
168. Exhibit H at [7]
169. Exhibit H at [8]
In cross examination, Mr Finianos stated that he did not see the steel fixers working around the steel bars where the Plaintiff was working. [170] He said there was nothing wrong with them being there on the job but he did not see any. [171] He stated that he did not talk to any of the steel fixers. [172] He stated that the person that he saw using a grinder, he did not recognise as a form worker. When it was put to him that other than the fact that he was not a form worker he did not know who he was working for he responded “he was cutting steel and drilling.” [173]
170. T203.20
171. T203.28
172. T203.40
173. T204.17-.25
Mr Finianos was adamant that the form worker does not do the cutting. He stated that this was the role of steel fixer. [174] He stated that only a steel fixer did this work because the surveyor had to be brought in the next day to check if the steel had been cut correctly. [175] In re-examination, Mr Finianos asserted that it was not the job of a form worker to drill holes in concrete slabs. [176]
174. T201.34-.49; T202.04
175. T202.02-.04
176. T204.30-205.10
He stated that there were two slabs of formwork. One had already been poured on the ground and he did not notice any steel fixers around there. [177] He agreed that he was working in close proximity to the Plaintiff. [178] He did not know Mr Azadian and stated that he had not heard of him or met him before. [179]
177. T195.06-.18
178. T195.11
179. T195.18-.27
Mr Finianos stated that in the half hour before the accident, he saw the Plaintiff was working on a column. [180] He stated that he was working by himself and whilst he was working nearby, fixing the panel. [181] At the time he said he was approximately three metres away. [182] He said that he saw the Plaintiff working alone in the ten minutes before the accident. [183] At one point, he recalled the Plaintiff shouting “U-jack” to which he responded saying “no, fix it yourself” and “you do it yourself because I’m just completing my job here.” [184]
180. T195.34
181. T195.41
182. T195.43-.47
183. T196.07
184. T196.02
Mr Finianos stated that he himself had used a U-jack long ago. [185] He stated that if he was using a U-jack, he would pull it towards him. [186]
185. T196.03-.40
186. T196.46-197.01
At the time of the accident, he said that he did not see what happened and that he only saw the Plaintiff screaming when he fell to the ground. [187] He said that the Plaintiff at the time had a hard-hat on. He stated that when the Plaintiff fell to the ground, it was next to him. [188] He said that he was told not to go near the Plaintiff and not to touch him. [189] He said he saw the Plaintiff lying on the ground and there was some bleeding from his head. He said the Plaintiff was taken away from the site by a man he did not know. He then worked half a day and was told by Maneh to go home. [190]
187. T197.05
188. T197.09-.11
189. T197.15; Exhibit H at [11]
190. Exhibit H at [13]
In his oral evidence he said that he left work at about 10:30am on the Friday, because of what had happened to the Plaintiff. [191] He stated that he did not attend the toolbox meeting on the Friday and it was not suggested to him that he should. [192]
191. T 192.07-193.02
192. T 193.04-.14
After the Plaintiff was taken away, he saw a piece of metal on the ground with concrete and epoxy around it, near where the Plaintiff was lying. He stated that it appeared to have been pulled or yanked out of the ground. He said it was not deep in the ground because the hole that was left behind was not deep. In his experience, the only reason that the rod would have been bent was because it was not straight and if it was not straight, the formwork could not be placed around it. [193]
193. Exhibit H at [14]

Joseph Bechara

In his statement of 15 August 2017, Mr Joseph Bechara records that the induction forms completed in relation the Plaintiff indicated that he was inducted onto the site on 5 May 2014 as an employee of Fast Form Group NSW. [194] He states that the Defendant had no contractual relationship with Fast Form but was aware through thirty years of experience in construction, that typically the formwork sub-contractor employs workers and engages specialised labour to supplement their work on a day-to-day basis. [195]
194. Exhibit 1
195. Exhibit 10 at [5] (Statement of Joseph Bechara, dated 15 August 2017)
Mr Bechara asserted that the insulation and rectification of vertical starter bars that might have been installed defectively or in the wrong location were the responsibility of Dynamic. This is said to be so in light of the contents of the contract of 20 November 2013 at [13.1] between the Defendant and Dynamic, which stated:-

13. Defects
13.1 The Subcontractor shall maintain the Subcontract Works until Completion and thereafter promptly make good all defects that may appear in the Subcontract Works prior to the expiration of the Client’s defects liability period or any extension of such period. If the Subcontractor fails to rectify any defects promptly the Client’s Representative may rectify the defects and the resulting cost incurred by the Client will be a debt due from the Subcontractor to the Client.

Furthermore, the scope of works for concrete formwork annexed to the contract between the Defendant and Dynamic records:- [196]
196. Exhibit D1D (emphasis added)

Furnish all labour, materials, equipment’s and incidentals required and design, install and remove formwork for placing concrete as shown on the Drawings and as specified

Secure to forms as required or set for embedment as required, all miscellaneous metal items, sleeves, anchor bolts, inserts and other items furnished under other specifications and required to be cast in the concrete.

Placing all reo and tying properly with tie wire as per structural engineer’s design plans

Place all concrete on clean, damp surfaces, free from water, or upon properly consolidated fills, but never upon soft mud, dry porous earth, or frozen ground.

Mr Bechara stated that the site diary recorded the daily activities of labourers, sub-contractors and visitors on the construction site and he noted that it was completed in relation to this particular construction by Mr Tetlow and himself. Specifically, in relation to the diary entry for 5 May 2014, he recorded that he was able to identify the handwriting of Mr Tetlow and that it recorded that Easyform was working on the construction site. He was aware of an internal relationship between Easyform and Dynamic Formwork as they were two brothers operating the companies together and sharing resources. [197]
197. Exhibit 10 at [14] (Statement of Joseph Bechara, dated 21 October 2016)
In relation to the diary entry for 9 May 2014, the site diary recorded that Mr Dennis Harden drilled starters. Mr Bechara stated that this refers to drilling horizontal starter bars on the fire escape stairway from the ground floor till level one of the construction. [198] Mr Bechara stated that the process used by the Defendant for drilling horizontal starter bars was to drill and set them into place because the concrete is already set before the bars are inserted. As this work was said not to fall within Dynamic’s scope of works, it had to be performed by Mr Harden. [199]
198. Exhibit 10 at [16] (Statement of Joseph Bechara, dated 21 October 2016)
199. Exhibit 10 at [16] (Statement of Joseph Bechara, dated 21 October 2016)
Mr Bechara also stated that when a concrete pour is undertaken, it is planned in advance and arranged with concrete providers. In this instance, the concrete supplier was identified as Hanson Construction Material Pty Ltd. Mr Bechara stated that if the concrete pour was undertaken on 9 May 2014 that would have been recorded in the site diary. [200] On this day, the site diary had no record of the concrete pour being scheduled.
200. Exhibit D1D to Statements pp. 131-132
Mr Bechara stated that he needed at least three days to organise the concrete pour in order to organise a form worker and confirm the pour date, book the concrete supplier and arrange a concrete pump. He noted that the site diary for 12 May 2014 recorded the concrete pump on the site at 1:30pm, which would indicate that the pour was to occur at that time and not on 9 May 2014, such that there was no rush to undertake the work of installing the framework promptly. [201]
201. Exhibit 10 at [7] (Statement of Joseph Bechara, dated 15 August 2017)
In cross-examination, Mr Bechara accepted that the Defendant was in control of the final outcome, according to the program with his trades knowing what was to be achieved. [202] He stated that if there were alterations to the program, deviated from the design, that they required the Defendant’s consent. [203] He stated that the Defendant did not tell anyone who to employ but it did control the circumstances in which people were allowed to come onto the site. [204] He also accepted that the Defendant was in control of compliance with occupational health and safety requirements. [205] As to the question of how subcontractors do their work, Mr Bechara stated that they submitted their safe work statement and as long as they were working within that, they would tick that box and it was up to them to carry out all their sub-contract work according to their safe work statement. In the event that it became apparent that they were not doing something according to that statement, then the Defendant could intervene. [206]
202. T 523.39-.47
203. T 524.05-.14
204. T 524.16-.36
205. T 524.40
206. T 524.43-525.17
Mr Bechara accepted that starter bars embedded in concrete could have come out depending upon on how deep it was embedded. He stated that his understanding was that the head contractor [207] had left the starter bars out and they were quite aware of that and the head contractor came and placed them in the concrete and depending on how deep and if it was not properly inserted, the chances were that it would not stay in. [208] Mr Bechara accepted, according to the diary note, that a sub-contracted company named AOR had been engaged onsite on 9 May 2014 as the supplier of the crane. The reference in the site diary noted “lift steel to columns 7:00am to 4:00pm.” [209] It was said by him to have meant that the steel would have arrived and they would have been moved from one position to another, so that a steel cage could be formed up.
207. A reference I accept refers to Dynamic
208. T 526.07-.13
209. Exhibit 7, p. 131
Mr Bechara’s evidence was that if a starter bar was bent, this would have been worked out before the cage was lowered into position because the column would have been marked at the base. [210] Accordingly, before the cage was even dropped, the starter bar would have been observed as being outside the column area and in such as case, he stated that there was no need to bend it and that it would need to be cut and re-drilled in the right position.
210. T 530.06-.09
He stated that the methodology of having the column formed on three sides and leaving one side open and then working out the starter bar was out of position was wrong. [211] He accepted that in the event that the bar was not in vertical alignment, one of the ways of fixing it would be to use an angle grinder to cut it. Further, he accepted that if it were necessary because of structural requirements, a hole would need to be drilled and some form of adhesive will need to be applied into the hole and the bar set into the hole using Chemset. [212] He stated that a cage could be dropped on three bars, [213] however, he would have addressed the issue of a protruding bar before dropping the cage. [214]
211. T 530.16-.25
212. T 531.18-.30
213. T 531.44
214. T 531.46-532.02
Mr Bechara was uncertain as to whether references in the diary entries to visitors to the site including a “Joe“ would be himself as he was not the only person with that name on the building site. [215]
215. T 533.16
He stated that he lived nearby and most builders, he was an early riser and would get to the premises, catch up with persons on-site and might hang around for an hour or two. [216]
216. T534.12-.16
He stated that he did not know whether he was on the building site on 9 May 2014. [217] He accepted that it was part of Mr Tetlow’s responsibilities to ensure that the starter bars were placed in the correct fashion by the steel workers and rectified if they had made a mistake. [218] He stated that it would be odd for the crane to be dropping steel cages at that point in the construction, in particular, the crane would not simply hold the cage up in the air. [219] He stated that they would not have persons operating the crane and using it whilst waiting for the bar to be fixed. [220] He stated that whilst the bar was being fixed there were other things that could have been done on the job site. [221]
217. T534.25
218. T534.44-.49
219. T535.49-536.05
220. T536.08-.13
221. T536.33
Mr Bechara accepted that if there were no diary entries for 10th and 11th May 2014, and the those days were a Saturday and Sunday respectively, it would be safe to assume that the site was closed on those days. [222] He stated that with the concrete pour being booked for 1:30pm on 12th May, whether or not all columns and other matters involving the concrete had be complied with by the Friday or the morning of 12 May, depended on the extent of work, but that it was possible to work right up until that time. [223] He said it was not uncommon where there are twenty columns that need to be poured, that you leave columns and come back and pour them with the main deck. [224]
222. T539.05
223. T 539.07-.11
224. T 539.24-.30

Andrew Teltow

Role

Mr Tetlow accepted that it was his role as site foreman to be in charge of overseeing all work according to plans and specifications. [225] He stated that if something was not done in accordance with the plans, specifications or building practices, it was his responsibility in general. [226] He also accepted that the coordination of trades was his responsibility. [227] However, he stated that once the form workers were on-site, they organised the pours. [228] He stated that there was no site diary for Saturday or Sunday as they did not necessarily need it owing to the fact that there was no work done on the Saturday. [229] He stated that he did not work on Saturdays at this time. [230] He said that on the weekend of 10 and 11 May 2014:-

“… they probably would have worked, maybe Joe was there, maybe someone else, I’ve got no idea but if it’s football season I wouldn’t have been working.” [231]
225. T 564.04
226. T 564.08
227. T 564.13
228. T 564.19
229. T 564.23
230. T 564.28-.30
231. T 564.36-.41

There is no site diary for either 10 or 11 May 2014. [232]

Plaintiff’s Employment

232. T 564.36-.41

Mr Tetlow stated that he first met the Plaintiff on 5 May 2014, being his first day of working at the Gladesville site. He stated that the Plaintiff was inducted and completed the site induction form personally. In the form, he said that he left out the details of his employment and noticed that he did not fill out who his employer was. Mr Tetlow stated that he asked him and was informed that it was Fast Form Group NSW. Consequently, Mr Tetlow says that he wrote the employer’s details onto the induction form. In his principal statement, Mr Tetlow reiterates that the Plaintiff provided him with a partially completed form and left the employer name blank. Following a request to the Plaintiff, Mr Tetlow wrote “Fast Form Group NSW.” [233]
233. Exhibit 9 at [9]-[10]
In cross-examination, Mr Tetlow accepted that the Plaintiff didn’t know the name of his employer because he was a sub-contractor to someone and stated that it was normal. [234] He stated that it sometimes happens when someone attends for induction, that their English is not good and he does not fill in the employer because he does not know. [235] He stated that he did not know if Mr El-Kheir knew who the employer was or not, but whatever he told him, he put down on the form. [236]
234. T 549.01-.06
235. T 549.11
236. T 549.18
Mr Tetlow stated that he thought he had to ask him who his employer was because he forgot to fill it in. [237]
237. T 549.14
Mr Tetlow states that he believed that a few workers from Fast Form Group NSW working at the Gladesville Site on 5 May 2014. [238]
238. Exhibit 9 Annexure A, Statement 22 May 2014 at [11]
Mr Tetlow stated that the Plaintiff did not work at the Gladesville site after 5 May 2014 until 9 May 2014. Mr Tetlow states that he attended the site on those days and did not see the Plaintiff in attendance. In cross-examination in relation to this, Mr Tetlow stated that he doubted that the Plaintiff was in attendance on 6-8 May 2014 because it was not very busy. [239] However he accepted that he didn’t pay any attention because once an employee had been inducted, as far as he was concerned, he didn’t need to write his name down every day. [240] He stated that at the time, he had a recollection that the Plaintiff was not there. [241] He confirmed however that he had no records of who worked there and just kept numbers. [242]

9 May 2014

239. T 549.46

240. T 550.01

241. T 550.07

242. T 550.14-.17

Next Mr Tetlow stated by reference to his site diary for 9 May 2014, that under the heading, Labourers, appears the name, “Dennis” with the work completed being, “drill starters” which was in his handwriting. He stated that site diary also refers to “install stair form” and he believes that the reference to the drill starters is a reference to starters for the stairs and not the columns. Mr Tetlow confirms that it is possible that he did give an instruction to cut off the starter bars which he observed were in the wrong place because the pins setting out the position of column. He stated that there would have been “mickey pins” at the corner of the rectangular footprint of the column to be formed and recalls installing the mickey pins himself on this job. He stated that the starter bars should have been sufficiently far away from the mickey pins to make sure that when the concrete is poured, there is adequate amounts of concrete between the reinforcing cage, from the starting bars to the outside edge of the columns.
However Mr Tetlow denied telling or having told the form workers or steel fixers that the “steel bar was set in epoxy glue” and denied directing anyone on the site to reset the starting bar for the column. He stated that the starting bars and the columns are part of the reinforcing cage for the footing or the slab and continued to become part of the reinforcing of the column and in this way, joined the two components together. He stated that there would be no purpose to drill a starter and filling it with epoxy as it was not needed to show where the column was to be poured because the mickey pins do that and could not be connected to the reinforcing of the slab or footing so it would hence not perform its function in accordance with the engineering design. According to Mr Tetlow, starter bars can be drilled and epoxied in for block walls and other types of walling systems and stair work because you do not need the extent of the embedment that you would for columns.
Mr Tetlow states that if he directed the starter bars to be cut off, there is no way he would have directed the starter bar be drilled and epoxied nearby. This is because it would serve no purpose and he would not have directed it to have been done. [243]
243. Exhibit 9 at [16]-[21]
In cross-examination, Mr Tetlow accepted that there was an angle grinder in the office. [244] Mr Tetlow accepted also that there was an electric drill in the office, but stated that there would be no need for Dennis to drill the holes and that he did not tell him to do that. [245] He stated that in the event that Dennis did get a glue gun, that was something that he kept in the office, [246] and if he put Chemset into holes that he drilled, that would be a useless thing for him to do. [247] He accepted that it would not provide much structural support for the columns. [248]
244. T 565.31
245. T 566.14-.19
246. T 566.23
247. T 566.21-.45
248. T 566.47-567.04
In re-examination, Mr Tetlow stated that he had never instructed Dennis to do that work, never seen him do such work and in his recollection, Dennis was only applying epoxy to bars on the walls and the stairs for the stair form to go in, “other than that, I’ve got no idea what he was supposed to be doing.” [249] He stated that because of the width of the bar, restarting the bar would require the coring of a hole and that was not normally done by anybody. [250] He stated that the Defendant did not have access to a core drill and nor did he own one. [251]

Accident

249. T 568.47-.50

250. T 568.20-.32

251. T 569.07-.19

Mr Tetlow did not witness the accident.
Following its occurrence, Mr Tetlow stated that he told the Plaintiff that he would need to complete an incident report and the Plaintiff explained what had happened to which he wrote them down and asked the Plaintiff to sign the incident report after reading it back to him confirming that it was correct, where upon he asked him to sign it. [252]
252. Exhibit 9 at [25]; Annexure A at [26]
The Injury Notification Form [253] signed by the Plaintiff records under the description, “how incident occurred” as follows:-

“Working attempted to bend a steel bar with an extension tube.
Steel bar, broke free from concrete and worker hit his head with steel tube.”
253. Exhibit 2

In cross-examination, Mr Tetlow confirmed that was more or less what the Plaintiff had told him. [254] He confirmed that one of his duties were to then look at the accident site in due course. [255] He stated that on inspection there was a starter bar on the floor but he didn’t know whether it had anything to do with the accident. [256] He had no recollection of seeing a Ujack because they are used for holding up the formwork and are everywhere. [257] He stated that there was nothing that he found that was inconsistent with what the Plaintiff described to him and that he then wrote down in the abovementioned description. [258]
254. T 553.31-.34
255. T 553.39
256. T 551.30
257. T 551.36-.46
258. T 553.44
Mr Tetlow also accepted that there was nothing inconsistent with what the witnesses, Mr Hardanapour and Mr Havari told him that he was able to write down and what he was able to see at the worksite. [259]
259. T 554.32
Mr Tetlow described that the boss of the steel fixers “Eddie” identified two witnesses to the accident. He said the witnesses gave their statements in the office. [260]
260. T 560.25
Mr Tetlow stated in his first statement that the metal bars that the Plaintiff was working on, have since been covered in concrete. He stated that U-jacks weight approximately ten kilograms and that the builders were responsible for putting the metal starter bars into the ground and sometimes the starter bars are fixed into the concrete and sometimes they are fixed with Chemset which is an epoxy chemical anchor and it was common practice to use Chemset to fix the starter bars. He stated that the Plaintiff should not have been touching the starter bars as this was the responsibility of the steel fixer. [261]

Personal Protection Equipment

261. Exhibit 9, Annexure A at [45]-[49]

Mr Tetlow also says that during the induction process, he informed that Plaintiff, “you must wear your hard-hat.” He says that this was recorded on the form. [262] The form does in fact record this. [263]
262. T 562.48
263. Exhibit 1
On 9 May 2014, Mr Teltow completed Injury Notification Forms that did not reference the Plaintiff not wearing a hard hat and indicating that no further investigation was required. [264]
264. Exhibits C and 2
Nonetheless in his statement, Mr Tetlow stated that following the accident he asked the Plaintiff if he was wearing a hard-hat and he told him that he was not wearing a hard hat. He stated that he remembered joking with the Plaintiff that this would not have happened if at the time, he was wearing a hard-hat. [265] He stated that at the time, the Plaintiff was wearing a high-visibility shirt or vest and not a shirt with the logo, Dynamic Formwork or Fast Form. [266]
265. Exhibit 9, Annexure A at [42]
266. Exhibit 9, Annexure A at [44]
In cross-examination, Mr Tetlow maintained that the Plaintiff told him that he was definitely not wearing a hard-hat. [267] It was suggested to him that he was told that the Plaintiff was wearing his hard-hat but it came off during the course of the impact and the Plaintiff falling backwards. He responded, “no.” [268]
267. T 560.33-.40
268. T 560.44-.45
Mr Tetlow accepted that there was nothing in the Injury Notification Form about the hard-hat. [269] He also conceded that there was nothing in the other witness injury notification statements about a hard-hat. [270] Further there was nothing in his injury report about the hard-hat either. [271]
269. T 561.32-.37 (a reference to Exhibit 2)
270. T 561.41 (a reference to Exhibits C and 2)
271. T 561.45
Mr Tetlow maintained nonetheless, that when he made his statement, on 22 May 2014, he inserted that the Plaintiff was not wearing a hard-hat because that was what the Plaintiff had told him. [272] He acknowledged Mr Azadian in his witness statement, had mentioned that the Plaintiff was wearing his safety helmet and at the time when he fell down the safety helmet fell off of his head [273] - something that was known to him at the time that he made his statement in August 2017. [274]
272. T 562.01
273. T 561.19-.22
274. T 561.26-.30

Liability Findings

I am unable to determine the primary source of the information recorded in the induction form of the Plaintiff working for Fast Form Group NSW. It seems to be unlikely that the Plaintiff was aware of the identity of his employer at the time– a factor which may explain why he did not complete that detail in the induction form in the first place. In any event, there is no evidence as to who Fast Form was, although the names bear some similarity with Easyform, which was described as one of the names of the head contractor Dynamic. [275]
275. T540.26
Mr Tetlow’s evidence about the site not being busy on days subsequent to 5 May 2014 does not correspond with the site diary which shows that there were on site from Easyform on 6 May 2014, ten employees, on 7 May 2014 eight employees and on 8 May 2014, eight employees. [276] Work described by the Plaintiff in his evidence, as having been performed on those days broadly corresponds with what is contained in the site diary. Although on Wednesday, 7 May 2014, the Plaintiff said was raining, the site diary records as fine. Nevertheless, the Plaintiff’s evidence was that he worked in the basement and within the basement’s ceiling. This is broadly consistent with the description contained in the site diary. He was not challenged as to his account of the work that he did those days.
276. Exhibit 1D1 to Defendant’s Witness Statements, pp 124-126
The Defendant submitted that I would not accept Mr Azadian’s evidence. [277]
277. Defendant’s written submissions at [12] and [13]
Mr Azadian’s evidence as contained in his statement did not accord with his oral evidence. In his statement he said he had worked with “Eddy Mobani“ doing steel fixing from about 2013. In his oral evidence he said that this was the start of his work with Eddy not that he had actually been working for him from that time. [278]
278. T133.35-.37
Despite asserting that he was a steel fixer in his statement he said in oral evidence that he was not trained as a steel-fixer, as but rather worked as a labourer.
His claim that he did not have an interpreter when he completed the statement is not consistent with the fact that the statement appears to be witnessed by an interpreter. [279] Despite stating in his statement that he was given an induction by the builder’s representative [280] he gave an account at one stage of not having a white card and the induction not being taken seriously. [281] He then stated that he didn’t report to the builder. He could not recall the floor he was working on.
279. Exhibit D
280. Exhibit D at [2]
281. T 135.29-.35
It seems somewhat extraordinary that Mr Azadian asserts that he signed two documents on 9 May 2014 where his actual name is not recorded but what he claims to be his signature it. This is particularly so in relation to the tool box talk sign off where the person recorded as the Manager/Presenter is his “Eddy Morabani“ who on his evidence would be familiar with him. [282]
282. Exhibit 9
No questions were put to Mr Tetlow in cross examination as to Mr Azadian being asked to sign the Injury Notification Form, nor as to the identity of the witness whose name is recorded as Mr Hervari.
Mr Azadian was adamant that he recalled Mr Maneh Hbouss being always present whilst he was there and was there on the morning of the accident. [283] He said he recalled because the boss or builder told Maneh that he needed to sort out the metal bars. [284] This was at variance with the Plaintiff’s evidence who stated that Mr Hbouss was not present and that he called Mr Hbouss and was told to “ask Mahmoud,” who was the supervisor of the form workers.
283. T 144.20 and 146.14-.20
284. T 146.24-.26
In his statement, Mr Azadian said that he knew Maneh from other jobs, [285] however in his oral evidence he said this was his first job he just started working for Eddy [286] and he did not continue after the accident. [287] He added that this was the only occasion he worked as a steel fixer as working with steel and iron was very difficult and that he couldn’t keep going [288]
285. Exhibit B at [3]
286. T 133.10
287. T 133.15-.30
288. T 134.15-.18
Despite his assertion in his statement about seeing a man cut the metal rods off from the concrete slab, drilling and applying epoxy to the holes [289] in his oral evidence when asked, he stated that the person “kept going back and forward to the office to bring the grinder or anything. He described that person as “doing his own work” and said he himself was mainly focused and concerned in his own jobs. He said of the other person “ I was not keeping an eye on him to see what he is doing.” [290]
289. Exhibit AD at [4]
290. T 144.32-.35
In cross examination Mr Azadian was asked about the person he identified in his statement as performing rectification work being a person he was informed about during the induction process. It was put to him that he did not participate in any site induction with this person and his response was “on the same day he was explaining to us he was there as well.” [291] It is difficult to reconcile this response with his earlier evidence regarding the induction process.
291. T 144.22-.35
Mr Azadian also gave evidence of working with two other steel fixers and being asked by his employer to assist the Plaintiff 10 minutes before the accident when he was ten metres away. Yet the Plaintiff’s evidence was that he called out for a steel fixer but there was no-one available.
The Plaintiff’s case relies on the evidence of Mr Azadian as to the circumstances of the Defendant’s employee cutting the steel rod and epoxying it into a drilled hole. I do not accept that Mr Azadian made such observations. His account was inconsistent and unreliable. He himself acknowledged that his memory of events of 9 May might be vague at this time. [292]
292. T 146.48
The evidence of Mr Finianos is that he was only on site for two days to pour columns. His oral evidence was that he didn’t attend any toolbox meeting and following the accident he was sent home. There is no contemporaneous document confirming his presence. Despite having completed his statement describing himself as a steel fixer he amended this and asserted he was a form worker. He said that when he went to the site he was asked to go to see Maneh although he was not present at the time of the accident. This was contrary to Mr Azadian’s account. Contrary to the Plaintiff’s account he was unable to identify anyone in charge of the form workers at the time. [293] He claims he was close to the Plaintiff at the time of the accident being three metres away and that the Plaintiff was calling for help shouting “U-Jack” but he told him “No you get it yourself because I am busy.” The Plaintiff’s evidence was that he was not close at the time of the accident and he had a co-worker.
293. T 198.21
Despite the evidence of Mr Azadian, Mr Finianos said that he didn’t see steel workers. He said he didn’t talk to anybody it was a huge project and they didn’t have time to meet and talk to each other. He said he didn’t count how many people were present on the site saying roughly maybe 15, 50 maybe 55. [294]
294. T 203.50-204.02
Yet despite his assertions of not having time to talk to others he asserted in his statement that the person who cut the rods and glued them in was not a form worker. He conceded that the person was not known to him but the person who put the steel in the hole was the builders’ representative or a steel fixer.
Mr Finianos’ evidence does not establish the identity of the person he claims was responsible for the cutting of the steel as being an employee of the Defendant although he suggests that it was the builder’s responsibility.
Mr Nassif gave evidence prior to Mr Finianos. The latter was not challenged as to the circumstances of his subsequent encounter with the Plaintiff resulting in the Plaintiff informing his solicitors that he could be a witness in the case. Mr Nassif‘s evidence was that Mr Finianos had never worked for him.
The claim that the Plaintiff was involved in fabrication was not directly put to him when he was recalled and nor were the circumstances further explored.
The Plaintiff submitted that there was a consistent account of the accident from Mr Finianos’ evidence, his statement and that of Mr Azadian, his statement and the Plaintiff concerning the facts relevant to this accident and that lends support to what the Plaintiff and Mr Azadian and also to what Mr Teltow said was reported to him. [295]
295. Plaintiff’s written submissions at [8]
It is not in issue that the records tendered in Exhibit 8 evidence that Mr Finianos was not present at the time of the accident. Contrary to the Plaintiff’s submission Mr Finianos was afforded as opportunity to provide an explanation over the Plaintiff’s opposition. Despite being personally served he absented himself without notice to the Court. It is difficult in any event to understand what explanation he could have provided for the fact that immigration records disclosed that he was out of the country at the time of the accident and the Plaintiff did not suggest one. Beyond this his evidence does not evidence basic knowledge of circumstances he would be expected to know had he been present.

In cross-examination, Mr Khaled El Kheir stated that he would give Mr Dib an invoice, [664] however Mr Dib would not give a document confirming the amount that he was paying. [665] Instead he stated that Mr Dib would pay the money in the account. [666] Mr Khaled could not identify the person who worked for him except by his Christian name, “Osman”. [667] He stated that he didn’t know if Osman had white card, but if the builder saw that he did not have one, he would not let him on the site. [668] It was put to him that he was making this up, however he rejected this. [669] Mr Khaled was asked about filling in a GST form, however he stated that he went to his accountant and told him that he didn’t want to work anymore and “he did everything”. [670] Though he stated he had some paperwork with taxation at home, none was ultimately produced. [671] Mr Khaled maintained however that the company did not give him any record that they were giving him GST money. [672]
664. T 398.46
665. T 398.50
666. T 399.02
667. T 399.17-.45
668. T 400.05-.19
669. T 400.28
670. T 403.26
671. T 403.30
672. T 404.05
It was put to Mr Khaled El Kheir that he didn’t really work for Supercharge but rather his brother did, however these propositions were rejected. [673] He stated that he did not have a document from Supercharge, evidencing that they paid money into his brother bank account. [674]
673. T 404.34-.40
674. T 404.46-405.07
Mr Khaled El Kheir stated that he contacted Osman through someone else who knew him, but he no longer had his telephone number as he had deleted it since they stopped working together. He stated that he does not know where he lives and does not know his full name and has no paper work which he could bring to court which shows that he ever employed him. [675]
675. T 407.35-408.14
After he left Supercharge, he stated that he worked from Khaled Diab for 20 days, but Osman did not go with him. [676] He stated that relationship ended in the third week of June, [677] and thereafter he worked with the BKH Group and was paid wages. [678] Payslips in relation to this employment were ultimately tendered. [679] Mr Khaled El Kheir stated that the first time he received any documents from anyone that he worked for in 2017 is when he received the payslips from BKH Group. [680] In his statement, the Plaintiff stated that the job was an organisation known as Precise Structure NSW Pty LTD which was part of the BKH Group, although Exhibit O states that it was with Scafform Pty LTD with an annual salary of $74,024.20. [681] Mr Khaled El Kheir could not confirm whether he had filled in a tax return for the year ending 30 June 2017. [682]
676. T 405.19-.40
677. T 405.46
678. T 406.10
679. Exhibit O
680. T 407.14
681. Exhibit O
682. T 408.34-409.47
In producing the documents [683] Mr Khaled El Kheir stated that he was not able to locate documents evidencing any work that he did in 2016 or 2017 before commencing with BKH, [684] nor any documents evidencing his employment of Osman. [685]
683. Exhibit O
684. T412.30
685. T 412.34-.50
Mr Khaled El Kheir maintained that since starting with BKH Group, he continued to assist his brother financially in cash. [686]

SC Form-Mariah Adams

686. Exhibit N at [22]

Mariah Adams was then questioned about payments deposited in the Plaintiff’s account from SC Form. She reiterated that this was money that came from the Plaintiff’s brother who organised for his employer to have the money paid into the Plaintiff’s account. [687]
687. T 265.20-267.38
Ms Adams was asked about a payment that was made on the Plaintiff’s Westpac account to a “Youssef Na” on 29 June 2017 for $900 [688] despite the fact that this was an account that she stated that she was operating, she was unable to explain the payment, [689] but Ms Adams stated that it would not have been the Plaintiff who deposited the money. [690]
688. Exhibit 12, p. 118
689. T 268.15-.43
690. T 268.50
Mr Nassif’s bank statement indicates that this was credited to his account from the Plaintiff. [691] The Defendant submits that there is no explanation as to why the Plaintiff paid a person $900 with whom he is said to have had no relationship at the time. [692] On 5 December 2017 Defendant sought to recall the Plaintiff to explore the matter to him. [693] I declined to allow it. [694]
691. Exhibit 8 p49
692. Defendant’s submissions at [33]
693. T 449.49-452.10 and T458.1-459.36
694. T 496.5-.7 and Judgment dated 7December 2017 at p11-12
In relation to 3 deposits between 12 and 17 July 2017, totalling $6,350, [695] Ms Adams stated that she got that from the government [696] and deposited it into the account. [697] In relation to a deposit on 12 July 2017 into the Plaintiff’s account in the sum of $494.10 from “A El Kheir,” she stated that this was the Plaintiff’s brother who was putting who was putting the funds in and organised for the Company that he was working in to deposit it into the Plaintiff’s bank account. [698] Ms Adams’ account was that was half of the wage of the Plaintiff’s brother and that he would have organised this with the Company. The pay slip from Mr Khaled El Kheir was tendered. It identifies the Plaintiff’s brother as Khaled, not “A El Kheir.” Beyond that, there is no identification in either of those payslips of payments made to the Plaintiff from the Plaintiff’s brother’s earnings. Relevant payment dates were by EFT on 9 July 2017 and 18 July 2017. It was put to Ms Adams that she was making this story up and that the Plaintiff was working, however she rejected this. [699]

Further Evidence as to Accounts

695. Exhibit 12, p. 126

696. T 271.33

697. T 271.41

698. T 271.43-272.09

699. T 273.05-.12

Ms Adams stated that in terms of bills, she would pay those from the Plaintiff’s account to which she had access. [700] She stated that she had possession of a card linked to that account and she would use that for payment of living expenses. [701] She stated that whilst she’d go to family restaurants, she would not go with the Plaintiff. [702] She stated that she received money into her own account from Centrelink and would deposit the monies into the Plaintiff’s account. [703] She said that she received $1,500 dollars per fortnight from Centrelink and that she transferred money on a weekly basis. [704]
700. T 220.01-.14
701. T 220.16-.46
702. T 220.49
703. T 221.04-.23
704. T 221.30
Apart from the money she received from Centrelink, she stated that she stated received money from family, in particular from her brother, the Plaintiff’s cousins and his brother. [705] She stated that when she needed money she would ask and they would help. [706] She stated that the money came from family and friends – whoever can help.
705. T 221.39-.47
706. T 221.49-222.10
In cross-examination, Ms Adams stated that since 2005, she had been in receipt of social security benefits and had not worked. She conceded that prior to meeting and moving in with the Plaintiff she had her own handy card, being with St George Bank. She gave evidence that her social security payments were deposited into her St George Bank account and added, since 2014 she transferred payments that she received into her St George Bank account into the Plaintiff’s bank account every week. According to her evidence, she did this because the processes on the Plaintiff’s Westpac account were much easier to operate. She stated that although there is internet banking on St George, she did not like it and that the Westpac one was the one that she used. She conceded that if this arrangement was as she described, there would be a record of her withdrawing monies from St George and depositing it into the Plaintiff’s account. [707]
707. T 230.19
Initially, she stated that between 2014 and 2017, the Plaintiff never used his own debit card [708] and that every record on the Plaintiff’s bank statement was evidence of her using it. [709] She stated that the Plaintiff used cash when he went out driving, [710] stating that she had the card and he did not need it. [711] She was then asked about the period during which the Plaintiff was working for Edessa, and responded that she would have the card the majority of the time. [712] She then qualified this by stating that he would need to use the card, as far as she was aware, when he went to the doctors. [713] She stated that she used the Plaintiff’s card when she did the weekly shop [714] and that she used direct debit from her account for childcare and also for the gym. [715] Ms Adams stated that before the accident, she was not transferring her social security money into the Plaintiff’s account. [716]
708. T 230.48
709. T 230.04
710. T 230.11
711. T 230.13-.22
712. T 231.35
713. T 232.02
714. T 232.07-.20
715. T 232.22-233.11
716. T 235.08
The question of the use of the accounts was revisited later in Ms Adams’ evidence. Specifically she was asked to look at the bank statements for her St. George account and to point out where it was that she would transfer money from her social security account into the Plaintiff’s account. [717] She stated that she had another account which was a joint account with St George and that the money went into that account, she then withdrew it out from that account and sometimes deposited it into the Plaintiff’s account. [718] When she was asked why she would do this, she stated that it was because the St. George account that she had was an old account that did not support Pay Pass, but the joint account did. [719] She stated that sometimes she would transfer the money into her joint account and other times into the Plaintiff’s account. [720] She was then asked whether $750 would be transferred into the Plaintiff’s account or the joint account every week and she said sometimes, adding:-

“… like if I’m – I pull out the money. If I don’t transfer into the joint account, then I will be pulling out the money and depositing it, putting it into the Westpac ATM.”
717. T 253.14-.24
718. T 253.30-.48
719. T 254.04
720. T 254.06-.11

When questioned about purchases made on 7 November 2016 at the Beanbag Café, using the Plaintiff’s account on the same day as she made purchases at McDonald’s from her St George account, [721] Ms Adams stated that they were both purchases made by her because she likes to use both accounts. [722] She rejected that the Plaintiff would be using the account sometimes, stating that he would normally carry cash that she provided. [723] She stated that the Plaintiff did not go anywhere, however during the week said he was working, he would probably take $20 - $30 and take food with him. [724] Ms Adams was then questioned about purchases made on 28 November at Big W and IGA using her St George account on the same day as purchases were made using the Plaintiff’s Westpac account. [725] She reiterated that she had both cards and that she used each of them. [726] She similarly confirmed that this was what happened on 22 December 2016 when the Plaintiff’s account showed purchases made at Oporto, Amby’s Big Apple and Mc’Donald’s. [727] She reiterated that she used the same cards on different dates. [728]
721. Exhibit 12, p. 91, 158
722. T 257.01-.04
723. T 257.06-.13
724. T 257.20
725. Exhibit 12, p. 93, 158
726. T 257.30-258.29
727. Exhibit M
728. T 259.26
The transactions on Ms Adams’ St George account during the period where the Defendant draws attention to the transactions also occurring on the Plaintiff’s Westpac account coincided with low balances in the St George account. It is open for the Court to accept that Ms Adams was using both accounts at the time, depending upon the sufficiency of funds in the St George account.
Next, Ms Adams was questioned in relation to withdrawals from the Plaintiff’s account as follows:-

$2,350 on 1 September 2014. [729]

$2,500 on 5 September 2014.

In relation to both of these withdrawals, Ms Adams stated that she has withdrawn sums of cash because she needed things. [730] She then stated that this was many years ago and that she does not remember. [731] When she was asked whether she was sure it was not the Plaintiff who was removing the money, she questioned as to why he would need to, she did not remember and reiterated that it was probably her. [732]

729. Exhibit 12, p. 16

730. T 259.45

731. T 260.18-.33

732. T 260.35-.48

Ms Adams was asked a sum of $1,500 withdrawn on 14 July 2014. [733] She again stated that she could not remember. [734]
733. Exhibit 12, p. 10
734. T 261.03-.09
On 21 July 2014, $1000 was withdrawn. Again she could not remember. [735]
735. T 261.14; Exhibit 12, p. 11
Ms Adams’ attention was then drawn to deposits made into the Westpac account being $3,800 on 6 August 2014. She stated that it was maybe from a family friend and thought it might be the Plaintiff’s cousin who she described as a generous person. [736]
736. T 261.21-.41
Her attention was also drawn to $2,590 deposited on 29 April 2015. [737] She stated that the Plaintiff’s cousin again gave that money but she took $10 out to have coffee. [738]
737. Exhibit 12, p. 37
738. T 261.43-263.05
A further sum of $1,800 was deposited on 11 May 2015 which she also said would be from the same cousin. [739]
739. T 263.07-.16; Exhibit 12, p. 37
Ms Adams’ attention was also drawn to $6,600 which was deposited into the Plaintiff’s account. [740] She stated that this would be from the Plaintiff’s uncle. [741] She stated that the money deposited, around $10,000 in cash in April and June, she did not think was a gift, but had to be repaid. [742]
740. Exhibit 12, p. 40
741. T 263.04-.35
742. T 264.45
Ms Adams was next questioned about a deposit of $3,000 from her account into the Plaintiff’s account on 28 July 2017. [743] She stated that these were funds from her St George account which came from a child care rebate. [744] A sum of $9,000 was also recorded on 19 July 2017 [745] and she stated that that was money that she deposited from social security. [746] She did not know why she made two withdrawals of $500 on 17 July 2017. [747]

Conclusions as to Loss of Earning Capacity

743. Exhibti12, p. 224

744. T 270.50-271.01

745. Exhibit 12, p. 125

746. T 271.17

747. T 271.29; Exhibit 12, p. 125

The Plaintiff’s counsel submitted that the Plaintiff is an unsophisticated person when it comes to attending to his tax obligations. It was argued that it may be inferred from the Plaintiff’s evidence and indeed others that the system of recruitment and payment for workers in the construction industry, particularly form workers and steel workers is far from compliant with the recording of financial details such as employment, payment of wages, retention of tax and retention of GST. It was suggested the matter should be viewed in the context the employment of migrant workers, new to the country and with limited English skills and knowledge of their financial and social responsibilities concerning tax and the like. It argued the evidence in the case illustrates cash payments being made and little or no records being kept. [748]
748. Plaintiff’s written submissions at [24]
Plaintiff had claimed an earning capacity of $250 to $300 per day and a loss of $1500 net per week since the accident. [749] In its schedule of damages presented at trial the Plaintiff’s claim for loss of earning capacity was based on the sum of $1366 per week from 9 May 2014 to date and less earnings of $4949 when he was working for Edessa. A claim for future loss of earning capacity past and future superannuation is similarly based on a loss of $1366 per week. [750]
749. Plaintiff’s Statement of Particulars filed 3 November 2015, p. 3
750. Plaintiff’s Schedule of Damages
In written submissions the Plaintiff asserted that he was capable of earning $300 per day 5-6 days a week uninjured. It was argued that this was an appropriate measure of the Plaintiff’s economic capacity and that this figure is not discordant with average weekly earnings. Another means was to consider the earnings of the Plaintiff’s brother Khalid, albeit that involved continuous employment. [751] It was acknowledged that the Plaintiff would not be in employment each and every week and it may not be possible at the conclusion of every project to walk into employment in another project. It was submitted that the Court could assess damages for future economic loss by way of buffer, but in any case, past and future economic loss should be assessed on a similar approach to ensure that there is consistency. [752]
751. See Exhibit 0
752. Plaintiff’s written submissions at [32]-[34];
In closing submissions, the Plaintiff advanced an argument for the use of a buffer for past and the future economic loss that:-

“As far as economic loss is concerned, there is much to be said for a non-arithmetical or empirical approach. It is a case that probably would be best dealt with by way of a buffer, which would take into account the vagaries of employment in the plaintiff's industry, form working, that his past work record, at least as far as his declared income is concerned, would suggest that there are periods between projects. And if your Honour were to award a buffer, your Honour would take into account that in all likelihood these would be cash payments and there wouldn't be a superannuation component in relation to those.

If your Honour chose to deal with the assessment of economic loss in the past by way of a buffer, it probably would follow at least achieving consistency, that your Honour would apply such an approach for the future. We have provided some figures which pre-supposes that he would be absolutely unemployable for the remainder of his working life. That may not be a conclusion that your Honour would feel comfortable with, but we have put it there because it is consonant with the medical evidence, with the prognosis of those that have examined him on both sides, save for Dr Vickery, that he is probably unemployable. Although from a physical perspective we would concede that both Dr Bodel, Fearnside and Professor Jones say there is some residual capacity. So those are vicissitudes that your Honour could take into account.” [753]
753. T 595.41-596.12

The Defendant submitted that the Plaintiff after his case started filled in a tax return for 2013 and an amended return for 2014 to say that he earned $40,000. The amended return did not note any payer and the ABN number was his own, indicating that he earned it as a contractor. Yet no document has been produced to demonstrate his earnings or work. The submission advanced was that the Plaintiff completed the amended return for the purpose of demonstrating some earnings for the purposes of his claim. [754]
754. Defendant’s written submissions at [30]
According to the schedule of damages submitted by the Defendant submitted that as amount of $19,904.80 (including superannuation and Fox v Wood) would be allowed for past economic loss based on the amount paid by Workcover and nil would be allowed for the future. This was to be subject to any deduction for contributory negligence. [755] The Defendant subsequently resiled from this, submitting that following cross examination the case was worth noting. [756]
755. T 3.03-.11
756. T 71.21-.39
In closing submissions, the Defendant submitted:-

“In terms of economic loss your Honour, your Honour in our submission would not have regard to the plaintiff's evidence about working fulltime for three years absence any tax returns to support it. So all your Honour is left with is a man who recently, that is January 2014, was able to work in Australia and worked for a few days. He didn't have much training or qualifications; he says he sustained an injury. If your Honour accepts obviously that he was working for SC Formwork well then your Honour wouldn't accept anything about his claim for loss of earning capacity.” [757]

757. T 587.07-.14

The Plaintiff in his evidence, asserted that when he worked for Dynamic and was to be paid $1500 per week. [758] He rejected the figure was $150 per day. [759] His first entitlement to workers’ compensation payment was in the amount of $464 net per week. The Plaintiff’s evidence as to his earnings as disclosed in his 2014 tax return indicated earnings of around $859 net per week up until the week of the accident. There was no primary evidence as to the composition of this figure. Moreover, I do not accept that from 2010, when the Plaintiff asserts he was able to work full-time, he did so continuously. He was unskilled, lacking in English language ability and appeared dependent on his family and cultural network to obtain employment. This is evidenced by the referral by his cousin to Dynamic and by his brother to Edessa. The Plaintiff also stated that he received $1500 per week from 2011-2014 [760]
758. T 116.38
759. T 116.38 Earlier he stated he was told $250 to $300 per day T 99.41
760. T114.24-.29
The low level of his declared earnings and the nature of the work incline me to accept that the Plaintiff received some undeclared earnings. To that extent, I accept his tax records prior to 2013 understated the true extent of his earnings and the 2014 amendment was an attempt to document earnings with a view to advancing his claim.
In determining the extent of any loss of earning capacity, I am mindful of the principles summarised in Moravatjou v Moradkhami. [761] The taxation records were not accurate. The Plaintiff’s evidence was variable and unsatisfactory. Accordingly, it is necessary to exercise caution in determining the real figure of any loss. I need to also allow for times that the Plaintiff would not have been working as accepted by the Plaintiff in written submissions. Accordingly, I will proceed on the basis of a sum of $591 net per week; [762] best representing the average earnings of the Plaintiff at the time of the accident.
761. [2013] NSWCCA 157
762. being approximately 50% of the average net earnings of all workers in construction in 2014 according to the Furzer Crestani tables
The Defendant submitted that the Plaintiff’s evidence as to deposits into his account subsequent to the accident was implausible and should be rejected as it involved several thousand dollars a month from different people all around the same time. [763]
763. Defendant’s written submissions at [31]
Overall, I do not accept Mr Khaled El Keir’s, Ms Adams or the Plaintiff’s evidence as to the source of the payment made into the Plaintiff’s account being in respect of earnings owed to Khaled El Keir.
Mr Khaled El Kheir disputed that he was an apprentice carpenter and stated that he was employed on a full-time basis. [764] The Defendant submitted that despite the fact that the Plaintiff was doing a light duties job, Mr Nassif paid the Plaintiff $10 per hour more than form workers doing fulltime work.
764. T395.6
As I understood Mr Nassif’s oral evidence, Mr Khaled El Kheir was described as an Apprentice Carpenter in that he was “not number one” and “not qualified.” [765] Beyond that, the evidence was that he paid the Plaintiff $30 to $32 a week because amongst other things he was more experienced and was prepared to drive. [766] Presumably because of the order that witnesses were called Mr Nassif was not cross examined as to the additional cash Mr Khaled El Kheir asserted he was paid.
765. T181.39
766. T 184.5-.15
The Defendant submitted that payment of $16,000 paid by SC Form to the Plaintiff on the basis of wages owing to the Plaintiff’s brother over two month period was absurd bearing in mind Mr Nasiff’s evidence. [767]
767. Defendant’s written submissions at [33]
I do not consider I can form a judgment based on the amount paid by Supercharge in respect of whatever work Mr Khaled El Kheir was responsible for a two month period. His evidence was that his earnings with Mr Nasiff were in fact higher and he ultimately left for higher earnings.
However, Mr Khaled El Keir’s evidence as to his employment of “Osman the Sudanese” and submitting invoices to Mr Dib for his and Osman’s labour defied credulity. Despite requests, no records were produced and nor did he have any contact details for Osman. He asserted that Mr Dibb did not provide any record but just paid the money into the account.
The Plaintiff submitted that Mr Khalid El Kheir was not cross examined as to the truthfulness of the assertion that he loaned or advanced some $38,000 to the Plaintiff. The claim in fact made was that $38,000 was owed to Mr Khalid El Keir’s company KE Formwork Pty Ltd by Supercharge and the latter arranged for some $16,000 to be transferred to Plaintiff. This was said to be done directly so as to avoid use of cash so that Khalid El Kheir’s wife would not know. The Defendant put to Mr Khaled El Kheir that the monies said to have been advanced were in respect of work performed by the Plaintiff however he rejected this.
No records of Supercharge have been produced to support the asserted arrangement. Moreover the suggestion that it had to be done in this way to avoid use of cash so as to hide it from Mr Khaled El Keir’s wife sits against the background of a claim that he gave other monies in cash and that since working with BKH he continues to assist financially in cash.
The question that arises is whether I should draw an inference that this was in respect of labour being performed by the Plaintiff. In Kuligowski v Metrobus, [768] the High Court stated that in general disbelief of a witness does not establish the contrary. The effect of rejection of such evidence is a factor for the Court to take into account in determining whether the Plaintiff has made out its case as to loss of earning capacity[769] on an assessment of all the evidence in the case.
768. (2004) 220 CLR 363, 385 [60]
769. Chen v Zhang and Ors [2009] NSWCA 202 per Sackville AJA at [50]-[51]
So far as the bank accounts were concerned, the Plaintiff submitted that the manner in which funds were expended was perfectly unexceptional given the size and age of the Plaintiff’s family. It was further submitted that Ms Adams ought to be accepted as a witness of truth as to the manner in which the funds were expended being consistent with a mother looking after an invalid husband and four children. [770]
770. Plaintiff’s written submissions at [22]
The Defendant made no submissions as to Ms Adams’ asserted use of the Plaintiff’s card.
The Defendant’s submission regarding the funds was not that the deposit of funds demonstrated earnings by the Plaintiff but rather that whatever the source, the Plaintiff had sufficient funds to afford the treatment he asserts he wanted and that the Court should reject that the reason he did nothing was because of a lack of money. [771]
771. Defendant’s written submissions at [35]
Significant amounts of expenditure on the account were not able to be accounted for by Ms Adams. On an analysis of the use of the account, I do not accept that the Plaintiff could not have afforded the multi-disciplinary pain treatment as he asserted. Whatever the source of additional funds it is clear that the Plaintiff’s family was not struggling financially as the Plaintiff asserted. On the evidence, I am not satisfied that the reason he did not undergo the treatment recommended by Dr Lam was due to not being able to afford it.
On the evidence before me, I am satisfied that the Plaintiff suffered a loss of earning capacity subsequent to the accident although the quantum is difficult to determine. The Plaintiff’s earnings with Edessa broadly correspond with the Plaintiff’s pre-accident earnings, albeit over two years apart. Having regard to my findings as to the medical circumstances and the Plaintiff’s pre and post-accident earnings, overall, I would overall allow a buffer of $50,000 for the past including past loss of superannuation and Fox v Wood component.
So far as the future is concerned, based on my findings of the Plaintiff’s injury and its aftermath, I do not accept that the Plaintiff suffers any ongoing effects of injury productive of economic loss referable to the subject injury and I decline to make any allowance.

Out of Pocket Expenses

The Plaintiff claimed an amount of $37,157.80 [772] for past out of pocket expenses although it had provided an initial schedule of $34,347.
772. Exhibit Q
The Defendant initially conceded the amount of $24,640.85 paid by the workers’ compensation insurer but subsequently in light of the evidence submitted that it was not bound by the payments made by the workers’ compensation insurer. [773] It was submitted that if that insurer agreed to pay GP expenses and payments to Dr Ng that was a matter for it. It was argued that as the Plaintiff wasn’t following the advice of the doctors, wasn’t taking the scripts it was not reasonable to impose on the Defendant costs of ignoring their advice just for the purpose of getting compensation in the case. [774]
773. T 587.28.34
774. T 586.48-587.4
The test is whether the costs incurred were reasonable and necessary. Those costs went beyond prescribing medication and included investigations physiotherapy and rehabilitation. The fact that that treatment may have been ineffective or failed does not preclude recovery. [775] Overall, on the evidence before me I would accept that payments made by the insurer were reasonable and necessary in the context of the treatment that the Plaintiff was receiving however I would not allow the psychologists fees.
775. Lamb v Winston (No 1) [1962] QWN 18
The Plaintiff gave evidence of seeing a psychologist, Sana Zaarour, whose treatment was described as beneficial until medication wore off. There are no records for Ms Zaarour in evidence. [776] Some psychologist fees were paid by the workers’ compensation insurer but there does not appear to be any overlap in the additional amounts claimed. Although the Defendant did not challenge the Plaintiff’s statement that he derived benefit, I would not accept that Ms Zaarour prescribed medication and I do not accept that any condition is causally related for the reasons I have outlined. In short I would have allowed $24,298.45 from the workers’ compensation schedule.
776. T 46.6-.15
From the Plaintiff’s claim for reimbursement, I would have allowed additional fees of $935 for out of pocket expenses incurred before 10 February 2015.
I would not allow the fees for chiropractic treatment. Whilst the Plaintiff gave evidence of having chiropractic treatment, there is no evidence that would make it reasonable and necessary for it to be incurred. Similarly, I would not allow the fees of Dr Van Gelder of 9 November 2016 and Dr Ng of 18 February 2015 and 17 March 2016.
On the Medicare statement, I would not allow the fees of Dr Van Gelder for similar reasons. The fees of Dr McDougall do not relate to the accident. I would not accept that the physiotherapy provided by Mr Moutsallem and Mr Lu after 10 February 2015 was reasonable and necessary. Nor the costs of Drs Hiew or Lui for tomography. The evidence of back pain leading to this was of a bad back massage after 13 September 2015 and before 5 October 2016. [777] I would also not allow fees for an MRI on 25 October 2016 by Dr Dimmick nor the fees for Dr Schlaphoff of 10 January 2016 for similar reasons.
777. Exhibit J at p54
I would allow the fees for Drs Wong, Luckey and De Costa and Karunaratne and Duckney.
I would make an allowance for the fees of Dr Bishay for 10 May 2014 and some of the fees of Dr Al Shelth, accepting that only part of these were reasonable and necessary in the circumstances.
In all, I would have allowed a figure of $2000 from the Medicare schedule
I would have allowed all up $27,234 (rounded up) for past of pocket expenses
The allowance I have made for past expenses is what I would regard as exhaustive for the purposes of treatment.
The claim made for psychiatric consultations was based on Dr Bertucen’s evidence which I do not accept. Four years has past. I accept the evidence of Dr Vickery that the treatment has been reinforcing the Plaintiff’s behaviour.
I do not accept the claim for a multi-disciplinary pain management programme as I am not satisfied on the evidence that it is reasonable or necessary. The Plaintiff gave no evidence in any event that he would undertake such consultation.
The claim of visits to the general practitioner in the future and medications cannot be supported on the evidence.

Non-economic Loss

The Plaintiff argued that an award of based on 37% of a most extreme case was appropriate pursuant to s 16 of the 2002 Act.
The Defendant argued that the case fell below the threshold for an award pursuant to s 16 (1) of the 2002 Act.
As these reasons have outlined I have cannot accept much of the Plaintiff’s evidence and that of Ms Adams as to the underlying history presented to this Court and the medical practitioners who have examined the Plaintiff.
Having regard to the nature of the injury as found me, and the pre-existing health issues I consider the true impact of his pain and suffering and loss of amenities of life is of limited duration not as extensive as presented. There is no suggestion of loss of expectation of life or disfigurement.
Having regard to definition in section 3 and terms of s 16 of the 2002 Act I would find the Plaintiff’s case as bearing 17% of a most extreme case being an amount of $12,500.
Accordingly had the Plaintiff succeeded, I would have awarded $89,734

CONCLUSION AND ORDERS

In the circumstances I order as follows:

Verdict for the Defendant;

Subject to any application to my Associate within 14 days to relist the matter for any further or other order as to costs the Plaintiff is to pay the Defendant’s costs;

Exhibits are to be retained for 28 days.

**********

Dated: 14 June 2018

I Certify that this and the preceding pages are a true copy of the reasons for judgment of His Honour Judge Hatzistergos

Associate: Jason Lu

Endnotes

Decision last updated: 18 June 2018

Medium Neutral Citation:	El-Kheir v Pinnacle Construction Group Pty Ltd [2018] NSWDC 155
Hearing dates:	21 August 2017 – 24 August 2017 and 4 December 2017 – 7 December 2017Plaintiff’s written submissions: 2 December 2017Defendant’s written submissions: 7 December 2017
Date of orders:	14 June 2018
Decision date:	14 June 2018
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	1. Verdict for the Defendant; 2. Subject to any application to my Associate within 14 days to relist the matter for any further or other order as to costs the Plaintiff is to pay the Defendant’s costs; 3. Exhibits are to be retained for 28 days.
Catchwords:	TORTS – NEGLIGENCE – workplace injury – liability of host employer – duty of care – duty to take precautions against risk of harm – factual investigation TORTS – DAMAGES – out of pocket expenses – economic loss – non-economic loss – domestic assistance – whether costs incurred were reasonable and necessary – factual investigation – whether plaintiff is malingering or exhibiting somatoform chronic pain disorder
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 97 Civil Liability Act 2002 (NSW) ss 5B(1), 16
Cases Cited:	Chen v Zhang and Ors [2009] NSWCA 202 Sangha v Baxter (2009) 52 MVR 492 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 New South Wales v Fuller-Lyons [2014] NSWCA 424 Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 Fuller-Lyons v New South Wales [2015] HCA 31 Henderson v Queensland [2014] HCA 52 Macks v Viscariello [2017] SASCFC 172 at [601] Jones v Dunkel [1959] HCA 8; (1959)101 CLR 298 Leighton Contractors Pty ltd v Fox; Calliden Insurance Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 Caruana v Darouti [2014] NSWCA 85 Lee v Wickham Freight Lines Pty Ltd [2016] NSWCA 209 Uniting Church in Australia Property trust (NSW) v Miller (2015) 91 NSWLR 752 Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 320 ALR 235 New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Moravatjou v Moradkhami [2013] NSWCCA 157 Kuligowski v Metrobus (2004) 220 CLR 363 at 385 [60] Lamb v Winston (No 1) [1962] QWN 18
Category:	Principal judgment
Parties:	Ali Kadour El-Kheir (Plaintiff) Pinnacle Construction Group Pty Ltd (Defendant)
Representation:	Counsel: Mr H Marshall SC and Mr J Masur for the Plaintiff Mr R Cavanagh SC and Mr D Macfarlane for the Defendant Solicitors: AJB Stevens for the Plaintiff RGSLaw for the Defendant
File Number(s):	2015/322585
Publication restriction:	N/A

Dated: 14 June 2018
I Certify that this and the preceding pages are a true copy of the reasons for judgment of His Honour Judge Hatzistergos	Associate: Jason Lu