Folaumoeloa v CCS Commercial Construction Specialists Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2022 05186

SEBASTIAN-FAKAUA FOLAUMOELOA	Plaintiff
v
CCS COMMERCIAL CONSTRUCTION SPECIALISTS PTY LTD (ACN 145 874 344) (and others according to the attached Schedule)	Defendants

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATES OF HEARING:	14–18, 21–23 July 2025
DATE OF JUDGMENT:	18 September 2025
CASE MAY BE CITED AS:	Folaumoeloa v CCS Commercial Construction Specialists Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 592

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NEGLIGENCE — Personal injury — Plaintiff suffered partial amputation of finger on construction site while using circular saw — Plaintiff employed by first defendant — Second and third defendants were principal contractors in charge of construction project — Fourth defendant employed co-worker who was working with plaintiff when injury occurred — Plaintiff and co-worker working for second and third defendants pursuant to labour hire arrangements — Whether negligence by the defendants was a cause of the plaintiff’s injury — Whether plaintiff was contributorily negligent — Each defendant breached duty owed to plaintiff — Plaintiff failed to take reasonable care for his own safety when using circular saw — Apportionment — Assessment of damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	S McCredie with B Johnson	Carbone Lawyers
For the First Defendant	D McWilliams SC with L Glass	TG Legal + Technology
For the Second and Third Defendants	J Rush KC with C Sluiter	Barry Nilsson Lawyers
For the Fourth Defendant	P Jens KC with J Hooper	Wotton & Kearney

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Witnesses............................................................................................................................................. 2

Liability........................................................................................................................................... 2
Damages......................................................................................................................................... 2

Background......................................................................................................................................... 3

Folaumoeloa................................................................................................................................... 3
CCS Commercial Construction Specialists Pty Ltd................................................................. 4
West Gate Tunnel Project............................................................................................................. 5
Verification of competency........................................................................................................ 12

The incident...................................................................................................................................... 14

Post-incident investigation........................................................................................................ 22
Roger Lewis................................................................................................................................. 27
Further findings........................................................................................................................... 31

Liability.............................................................................................................................................. 35

Injury.................................................................................................................................................. 38

Folaumoeloa................................................................................................................................. 38
Amelia Tapaatoutai..................................................................................................................... 42
Benjamaporn Penkul.................................................................................................................. 43
Medical evidence......................................................................................................................... 43
Dr Vjay Navani.................................................................................................................. 43
Arun Sharma...................................................................................................................... 44
David McCombe................................................................................................................ 45
Dr Peter Blombery............................................................................................................. 45
Dr Michael King................................................................................................................. 45
Dr Indra Mohan................................................................................................................. 47
Dr Robyn Horsley.............................................................................................................. 49
Dr Joseph Slesenger........................................................................................................... 51
Other medical evidence.................................................................................................... 54

Return to work reports............................................................................................................... 55
Dr Thomas.................................................................................................................................... 55

Damages............................................................................................................................................. 55

Pain and suffering....................................................................................................................... 55
Folaumoeloa....................................................................................................................... 55
Defendants.......................................................................................................................... 56
Analysis............................................................................................................................... 56

Loss of earning capacity............................................................................................................. 59
Folaumoeloa....................................................................................................................... 59
Defendants.......................................................................................................................... 59
Analysis............................................................................................................................... 60

Summary............................................................................................................................................ 65

HIS HONOUR:

Introduction

The plaintiff, Sebastian-Fakaua Folaumoeloa, was employed as a concreter/formworker on the West Gate Tunnel Project (‘WGTP’) from 2018 to 2020. On 28 May 2020, he suffered a partial amputation of his right ring finger when a circular saw he was operating caught in form ply he was cutting and suddenly kicked back towards him (‘incident’). Folaumoeloa claims that negligence and breach of statutory duty under the Occupational Health and Safety Regulations 2017 (Vic) (‘OHS Regulations’) by each defendant was a cause of the incident and his injuries.

The first defendant, CCS Commercial Construction Specialists Pty Ltd (‘CCS’), operated a business that included hiring concreters to work on construction projects. CCS employed Folaumoeloa at the time of the incident. The second and third defendants, CPB Contractors Pty Ltd and John Holland Pty Ltd, were an unincorporated joint venture that was the principal contractor on the WGTP at the site where the incident occurred (‘Joint Venture’). The Joint Venture hired Folaumoeloa’s services from CCS to work on the WGTP. When the incident occurred, Folaumoeloa was assisting carpenter Luke Williams to construct a box using a pallet and sections of form ply found on the worksite. Williams was employed by the fourth defendant, Cycon Civil Pty Ltd (‘Cycon’), and his services had also been hired by the Joint Venture on that day. It was agreed that for the purposes of this proceeding, the Joint Venture should be treated as a single entity.

Each defendant denies that there was any negligence or breach of statutory duty by it that was a cause of the incident and Folaumoeloa’s injury. They each claim that Folaumoeloa’s own negligence was a cause of the incident.

The extent of Folaumoeloa’s ongoing injury and disability and the assessment of his general and pecuniary damages was in dispute at trial.

Contribution claims made by each defendant, and an associated proceeding in which the Victorian WorkCover Authority made a claim in respect of payments of compensation to Folaumoeloa under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) against the Joint Venture and Cycon, resolved at the end of the trial immediately prior to final submissions.

Witnesses
Liability

Folaumoeloa called forensic engineer Roger Lewis. Lewis prepared a principal report dated 24 March 2025, together with two supplementary reports dated 25 March and 7 July 2025 respectively.

CCS called one of its directors, Dominic Stephens. Stephens qualified as a carpenter in 2007 and has been a registered builder for approximately five years. He established CCS with co-director Gerard Maher in 2011.

The Joint Venture called Dan Wilson, who is a bricklayer by trade and has worked in the construction industry for 35 years. Wilson worked as a supervisor on the WGTP site where and when the incident occurred. He is now employed as a superintendent on a different construction project.

Cycon called Williams, who is a qualified and experienced carpenter. Williams was present at the scene of the incident.

Damages

Folaumoeloa called his treating general practitioner Dr Vijay Navani and his treating psychiatrist Dr Indra Mohan. He tendered reports of other treating and medico-legal practitioners.

Folaumoeloa called Dr Robyn Horsley, and CCS called Dr Joseph Slesenger. Horsley and Slesenger are both specialist occupational physicians.

Folaumoeloa also called evidence from his current partner Benjamaporn Penkul and his sister Amelia Tapaatoutai.

Since 2023, Folaumoeloa has been prescribed medicinal cannabis by a ‘Dr Thomas’ for treatment of his injuries. No evidence was called from Thomas. The defendants submitted that adverse inferences should be drawn against Folaumoeloa for his failure to call evidence from Thomas.

Background
Folaumoeloa

Folaumoeloa was born in Sydney in 1995, the third of seven siblings. He is currently 30 years old. He was diagnosed with attention deficit hyperactivity disorder (‘ADHD’) in early primary school and was prescribed medication for a number of years. Folaumoeloa found school difficult and left at 16 years of age. His reading and writing proficiency is limited.

After leaving school, Folaumoeloa began part-time work for his uncle as a concreter/labourer. That work became full time after about a year. He continued working for his uncle until he was 19 years old. Folaumoeloa’s uncle showed him how to use a circular saw, but his work did not require him to use the saw regularly. Folaumoeloa agreed that by about 2014 or 2015, he was confident in using a circular saw. He agreed that he had been taught how to use it properly.

Folaumoeloa obtained a ‘white card’ in 2011, which is a basic requirement to work in the construction industry. Obtaining this certification involved him being taught the basics of safety in construction work. This included the ‘Stop and Take 5’ risk assessment (‘Take 5’), which he agreed involves considering the safety of the task, identifying any safety concerns, and raising these concerns before proceeding. He agreed that Take 5 is one of the most fundamental aspects of working on a construction site.

When he was 19 years old, Folaumoeloa commenced a relationship with a woman who lived in Melbourne. He moved to Melbourne to be with her and worked as a casual or subcontract concreter. He said that the relationship was good and they enjoyed going out on dates and walking together. They lived close to the Maribyrnong River, where Folaumoeloa would often go fishing after work. He played snooker in tournaments that were held about every three months. He enjoyed hiking, which he would do on weekends whenever he got the chance. He had been planning to build a house with his partner before the incident.

CCS Commercial Construction Specialists Pty Ltd

When CCS commenced operating in 2011, its only employees were Stephens and Maher. By 2016, the business had grown substantially and employed around 15 workers. CCS employed carpenters and concreters/formworkers.

Folaumoeloa commenced work with CCS as a casual concreter/formworker in about November 2016. He became full time in 2017. It was heavy physical work. Tasks included formwork; using a wheelbarrow; operating jackhammers, compactors and concrete vibrators, handheld and mechanical trowels, hammer drills and sledgehammers; and placing steel reinforcement mesh. Folaumoeloa used saws regularly to cut form ply. He said this was usually done with a circular saw, but that he sometimes used a drop saw or a reciprocating saw.

Folaumoeloa said he enjoyed the work and that it paid well. He worked six days a week, usually 10 to 12 hours a day if overtime was available.

Folaumoeloa worked for CCS on construction projects across Victoria, including a level crossing removal in Bayswater; the Gowanbrae sound wall near a freeway at Airport West; and wind farms at Acciona near Colac, Salt Creek near Warrnambool and Cherry Tree near Seymour. There was some dispute about the extent of Folaumoeloa’s circular saw use on the wind farm projects.

Stephens worked as a supervisor and formworker/concreter on the Bayswater project. He observed Folaumoeloa working on that project and considered that he was competent in doing the job that was required which involved formwork, placement of reinforcement, use of handheld power tools and concreting. He observed Folaumoeloa using a circular saw and considered that he was competent.

Before work commenced each day on a CCS project, all workers would attend a ‘pre-start meeting’. Generally this involved the project superintendent running through the work to be completed that day, after which workers would break into groups with their supervisor to discuss the day’s activities, receive instructions and raise any relevant safety issues. At the end of the pre-start meeting, each worker would sign a form (‘pre-start card’) acknowledging that they had attended the meeting, that they knew what work they were allocated that day, and the particular hazards that may be associated with that work. Folaumoeloa agreed that the pre-start card included an instruction to ‘contact your supervisor if unsure or need assistance’.

Stephens said that any CCS worker who had a safety concern should follow Take 5 by stopping work immediately and notifying the leading hand or supervisor onsite. He echoed Folaumoeloa’s description of Take 5, and said that it is always part of a project induction.

West Gate Tunnel Project

CCS entered into a Minor Works and Services Contract with the Joint Venture in April 2018 (‘Contract’). Stephens said that CCS began working on the WGTP from the start of the project, having set up all the site compounds. He said that CCS did lump sum contract work on the WGTP under its own direction and supervision, and also provided labour hire services. He said that the CCS employees doing labour hire work were under the direction and supervision of the Joint Venture.

Stephens was asked about a clause in the Contract that required CCS to ensure that only persons who were careful, skilled, experienced, qualified and had received appropriate training would work on the WGTP site. He said that the only training CCS had provided to Folaumoeloa was a ‘Verification of Competency’ (‘VOC’) on 26 June 2019. Stephens said that he did not give Folaumoeloa any training in the safe use of a circular saw because he had observed that Folaumoeloa was competent.

Stephens was asked about a clause of the Contract that required CCS to have a competent representative on site at all times. He said that this clause was relevant to lump sum work only, which the Contract had been drawn up for originally. He said that the Joint Venture did not want to create a second contract so they added the labour hire component to the end of the Contract as an amendment. I accept Stephens’ evidence about this matter.

Folaumoeloa completed an induction with the Joint Venture before starting work on the WGTP. The induction had online and face-to-face components. The content of the two components was the same and covered matters including a project overview, site rules, first aid, safety, the ‘Damstra’ sign-in system, the Safe Work Method Statement process (‘SWMS’) and some site specific matters. The induction included a direction to workers that if there was a problem with safety, they should stop work and speak up. Each component of the induction took about four hours to complete. CCS had no involvement in the induction other than telling Folaumoeloa that it was a requirement and confirming his booking.

The SWMS process covered high risk construction work tasks and did not extend to tasks such as using circular saws or building boxes. A WGTP SWMS checklist dated 6 March 2020 contains the following comment: ‘Start card to be completed at the commencement of shift to capture any risks not covered in the SWMS’.

Stephens completed the Joint Venture induction himself and agreed that it was thorough and comprehensive. He said that it covered a broad range of hand and power tools, but did not go into depth on how to use each piece of equipment. Stephens was asked:

That's your job, isn't it, to go into depth?---How's that?
You're the employer?---I am, yes.
You have the responsibility to go into depth with your employee about the risks associated with power saws?---He'd already been trained on power saws before he come to us.
Before he came to you ?---What do you mean?
Sorry.When was he trained?---Well, he used the power saws on the job whilst he worked for us too.
No, my question, when was he trained?---When was he trained?
Yes?---He said that he'd been trained by his uncle as well.
…
… what training did you provide to [Folaumoeloa] in relation to the use of the power saw?---That day?
Any time?---We'd — I'd seen him do it and we'd ticked him off on it with the VOC.
So you're saying to His Honour I'd seen him use the power saw, he looked efficient to me, and that's all that's required of me; is that right?---Well, yes, that is right, yes.

Stephens agreed that he did not train Folaumoeloa in Take 5. He said that it was ‘common sense’ for an employee not to engage in dangerous work, and said that ‘[e]veryone has a duty for their own responsibility to safety as well.’

CCS did not have a safety officer in 2020. Stephens said that CCS was ‘running under the [WGTP] safety systems’. He said that the Joint Venture had a safety team on the WGTP to prepare the pre-start documents, lead the safety culture onsite, respond to issues and rectify problems. Stephens agreed that CCS relied on the Joint Venture induction program for the purpose of training their labour hire workers. He did not accept that there was an added onus on CCS to ensure that their labour hire workers were properly trained. He was asked:

Doesn't the fact that your employee is under someone else's supervision mean that you have to ensure before they go under that supervision, they are properly trained to ensure that they don't do anything that the supervisor might tell them to do that is unsafe or that they are arc up when they are asked to do something that's unsafe?---If it was unsafe he shouldn't have done it.
…
You don't see it as your responsibility to ensure that you inform your employee, if you face an unsafe situation just don't do it?---No, I don't, no.

Stephens said that there were days when he worked with Folaumoeloa on the WGTP. He said that as a concreter/formworker, Folaumoeloa would have used a circular saw most days. He observed Folaumoeloa using a circular saw on the WGTP and was satisfied that he was competent in doing so.

Wilson said that the Joint Venture’s approach to ensuring that concreters/formworkers were competent in the safe use of circular saws was based on the worker’s level of experience. When the Joint Venture asked CCS to provide a concreter/formworker, it expected that CCS would send somebody with the required skills. Wilson said that he expected a labour hire concreter/formworker to be able to pour and finish concrete and assist with building formwork. He said that this involved the use of a circular saw. Wilson said that a labour hire company such as CCS is responsible for the competency and training of its workers.

Wilson said that the Joint Venture had a large safety department as part of the WGTP. He said that on the whole, the WGTP was ‘not too bad’ as far as safety was concerned. He said that it was emphasised at the Joint Venture induction and pre-start meetings held each morning that ‘if you did not feel safe doing a task, don’t do it’. He said that the WGTP induction included some information about the safe use of power tools, but that this information was pretty generic because the same induction was completed by every worker who was intending to work on the project. Apart from the induction, the Joint Venture did not provide Folaumoeloa with training, instruction or direction in the use of circular saws.

Wilson agreed that the responsibility of the Joint Venture for labour hire workers was significantly greater than for contract workers because of its obligation to supervise and direct them.

Before the incident, Wilson requested that the Joint Venture provide him with a static crew in order to give him greater control over the work being undertaken on site, but the Joint Venture responded that there was no budget for it. He agreed that care was needed to ensure labour hire workers had the skills necessary to do the work allocated to them. Wilson said that given the scope of the work he was responsible for, it was difficult to ensure each worker was doing things correctly. He agreed that his inability to supervise all the workers under his control as he would have liked was a safety concern that frustrated him.

Folaumoeloa began working on the WGTP in about August 2018. He worked at different sites across the project. He said that he would often get a telephone call or message from Stephens or Maher in the evening telling him where and when he was to work the next day. Folaumoeloa sometimes worked as part of a CCS lump sum contract, and at other times under the labour hire arrangement. Folaumoeloa was not allocated exclusively to the WGTP and continued to work on other CCS projects from time to time. He said that the WGTP was his favourite because the money was good and it was in a very convenient location to where he lived. He said that the wind farm projects were far less convenient and often involved periods working away from home, which he did not like.

Stephens agreed that Folaumoeloa was keen to work on the WGTP because of the attractive site allowance. He said that the allowance had been negotiated with the unions as part of CCS’ enterprise agreement. He agreed that the WGTP was the highest paid job that CCS had available for its employees in 2020. He said that while the base salary rate is the same for each project, the site allowance and overtime availability would vary between projects.

Williams was a qualified and experienced carpenter by the date of the incident. He was employed by Cycon and worked on the WGTP under a labour hire arrangement. He had a permanent role and worked under Wilson’s direction.

Williams said that he was not officially a leading hand on the WGTP site. He agreed that he was Wilson’s ‘right hand man’. He agreed that the classification on his payslip was that he was a leading hand authorised to supervise 11 or more people.

Folaumoeloa said that Williams was a leading hand on the WGTP. On the day of the incident, Williams was wearing a ‘John Holland’ T-shirt which made Folaumoeloa think he was employed by the third defendant (and therefore by the Joint Venture). He said that Williams referred to himself as a leading hand. He said that Wilson told them that ‘Luke’s the leading hand’, and that they had to listen to Williams’ instructions. Folaumoeloa said that he would not take instructions from Williams if they were doing a concreting job, but that he would listen to him if they were doing a carpentry job.

Stephens said that Williams was a leading hand for the crew being supervised by Wilson. He said it was common knowledge onsite that Williams gave work orders to other workers. He said that Folaumoeloa should have obeyed any instruction Williams gave him. He said that it did not trouble him if a Cycon employee was directing his employee, and it was quite common on big projects that the supervisors and leading hands were not employed by the project builder but by other companies.

Wilson said that while Williams was employed as a carpenter, each supervisor would have a person to ‘do the running around and bits and pieces for them in their area’. He agreed that Williams was his right hand man and would take on some of the roles that he was not able to do because he had so many people to supervise. He agreed that in some ways Williams was like a ‘2IC’ (presumed to mean ‘second in command’). However, Wilson said that Williams was not a leading hand.

Folaumoeloa said that the Joint Venture supervisors did not check to see if workers were implementing Take 5 to consider whether a job was safe. He did not see Joint Venture supervisors pulling anyone up for using a power tool unsafely. No one from the Joint Venture checked on his ability to use a circular saw, gave him any instructions or demonstrations on how to use a circular saw, or asked whether he had used a circular saw to cut form ply vertically before. The Joint Venture did not show him the operating manual for the circular saw, or tell him to ensure that the object to be cut was secured to a workbench on the ground. He did not receive any instructions or information from the Joint Venture about the risk of a circular saw kicking back. The Joint Venture did not give him any instructions about working with other trades.

Folaumoeloa agreed that he could raise any safety concerns with the supervisors on the WGTP, or with Stephens or Maher from CCS. He was a member of the Construction, Forestry and Maritime Employees Union, and agreed that he would not ‘be threatened with the sack’ if he raised a safety issue with the shop steward onsite. However, Folaumoeloa maintained that he would be scared of losing his job if he spoke up about his concerns, as people were getting laid off the WGTP at the time. Folaumoeloa said:

It's just known, like, on the job site you don't say anything, if you do they are going to say, 'Yeah, no work for you tomorrow', like, everyone's just - everyone's scared to speak up on the job site.

He accepted that nothing had been said to him by his employers or Wilson about his job being in jeopardy if he raised a safety issue.

Folaumoeloa agreed that one reason he was carrying a mobile phone with him onsite was so that he could call Stephens if there was any work that was putting him at risk. However, he said he was ‘too scared to ask [his] boss for anything’. He agreed that there was no reason for him to be scared and that Stephens seemed like a reasonable person, but said he felt that if he complained he would be ‘off the job’. He said that labour hire workers would change between jobs pretty easily. He thought that if he complained he would be sent back to the wind farm projects, so he kept his mouth shut. Folaumoeloa said that he was scared of Wilson, who had a ‘reputation’. He said that he had seen Wilson go off at people, and that ‘he [would] just sack you straightaway’. His reputation was such that you ‘don’t question what he says, [you just] do the job, do what he says’.

Stephens said that if the Joint Venture did not want Folaumoeloa on the WGTP, CCS would have moved him to a different job. He disagreed that the culture at CCS was such that a worker would ‘get the sack’ if they refused to do an unsafe job, that Folaumoeloa would have been concerned about this, or that Folaumoeloa would be transferred back to the wind farm projects simply because he complained about safety on the WGTP. He agreed that the number of CCS workers on the WGTP varied from time to time. He agreed it could have been the case that around the time of the incident the numbers were reducing, and that Folaumoeloa was anxious that he might be sent back to work on one of the wind farm projects.

Verification of competency

Stephens completed a VOC summary relating to Folaumoeloa’s use of circular saws. Stephens dated the two-page form 26 June 2019. For the most part, the VOC is a ‘tick the box’ form and relevantly features the following:

(a) It is ticked as an ‘initial assessment’, not a ‘reassessment’.

(b) The question ‘Has operator been issued with current relevant safe work method instruction?’ is answered yes.

(c) Stephens handwrote the comment ‘[W]hen observing Sebastian operate saw he looked more than competent’.

(d) Twenty-three ‘observation checks’ under the headings ‘Planning’, ‘Pre-operational Check’, ‘Operational’ and ‘Shutdown’ are ticked as ‘correct’.

(e) A ticked check under ‘Planning’ reads:

• Describes hazards controls identified in risk assessment
○Participates in risk assessments (JHA or Take 5)
○Identifies and acquires correct permits (when required)

(f) A ticked check under Pre-operational Check reads ‘Ensure job is secure to work bench/ground’.

Stephens said that he completed the VOC on the Cherry Tree wind farm project because the builder required CCS to verify that employees were competent to use saws and other tools. He said that the assessment took place at the wind farm and involved him observing Folaumoeloa for a couple of minutes, then ticking the boxes on the form.

Folaumoeloa was not made aware at any time that Stephens had assessed his competency in using circular saws. Stephens did not engage with Folaumoeloa at all in relation to the VOC. Folaumoeloa said that at no time did CCS go through the VOC checklist with him to make sure he was doing things correctly and to check his competence. During the time he was working on the WGTP, he was not given any update by CCS in relation to the use of power tools or safety issues.

Folaumoeloa agreed that important steps in the VOC checklist included a risk assessment or job safety analysis to identify hazards, which he said was similar to Take 5; making sure that the saw was in proper working order and was guarded, tagged and serviced; ensuring that the power cord was in good condition and the blade was properly aligned and sharp; maintaining a firm grip on both handles of the saw during use; and keeping your hands clear of the blade at all times. He agreed that in a situation where you could only hold the saw with one hand, it would be important to consider different ways of making the cut which would allow you to keep both hands on the saw. Folaumoeloa agreed that as at the date of the incident, he was competent in respect of all steps on the VOC and knew that he had to adhere to those steps when using a circular saw.

Folaumoeloa said that when he was in hospital after the incident, Stephens telephoned him and ‘told [Folaumoeloa] he was going to back-date the VOC for the saw’ and that Folaumoeloa didn’t ‘need to paint a bigger picture than it really is.‘ Folaumoeloa agreed that he was in pain and had taken strong painkillers at the time, and that he was not in the clearest frame of mind when he spoke to Stephens. Folaumoeloa was asked the following questions by counsel for CCS:

Now, [Stephens] called you, didn't he, because he asked how you were?---No.
He will say that he called you to check in on you because he couldn't come and visit you in hospital, you don't accept that?---Yeah, he called me up and -
And he called up to check in to see how you were doing?---Yeah.
And at no stage did he ever say to you that he was backdating a VOC for using the circular saw?---Yes, he did.
It's the reality, isn't it, Mr Folaumoeloa, that because of the fact that you're in pain and on painkillers and not in the clearest frame of mind that you're mistaken about that, about any suggestion that he was going to back-date?---Not at all, I remember exactly what [Stephens] said.

Stephens gave evidence that was inconsistent with the questions put to Folaumoeloa in cross-examination. He said that while he telephoned to check on Folaumoeloa when he was in hospital after the incident, Folaumoeloa did not pick up the phone. Stephens denied that they spoke at the time. He said that there was no need for him to backdate a VOC because he had already completed one on the Cherry Tree wind farm project.

Folaumoeloa said that he did not use a circular saw on the Cherry Tree wind farm project, as only the carpenters did. Stephens disagreed, and said that the concreters were required to assist the carpenters to prepare formwork between concrete pours.

Stephens said that VOC assessments were only required by builders on some projects. Stephens said that the Joint Venture did not require a VOC for Folaumoeloa in relation to the use of a circular saw on the WGTP. He said if the Joint Venture had required a VOC, ‘[CCS] would[’ve] had to provide it [for contract work, but for] labour [hire] works, it would be up to [the Joint Venture] to verify competency’.

The incident

The incident occurred at the Kororoit Creek Bridge on 28 May 2020. Folaumoeloa had previously worked at this site on the WGTP.

On the day of the incident, Wilson was supervising around 30 workers.

Folaumoeloa reported to the Grieve Parade worksite at 7am that day for a pre‑start meeting. At the pre‑start meeting, Wilson instructed Folaumoeloa and co-worker Darren Browne to patch concrete under the Kororoit Creek bridge. This involved using a bucket, trowel and bonding liquid to fix defects and holes. Folaumoeloa and Browne accessed the work area from the deck of the bridge and worked on a platform suspended beneath the bridge.

The pre-start sign-on sheet was not completed by Wilson that day. Williams completed a pre-start card that he, Folaumoeloa and Browne signed, indicating that they were members of a team for the day. Williams agreed he was the senior worker in that group. Wilson also signed the pre-start card. The pre-start card refers to concrete patching work and ‘general carpentry’. The control measure relevant to carpentry is ‘correct use of power tools’. The card does not refer to building a box. No instructions were given by Wilson to Williams or Folaumoeloa at the pre-start meeting about building a box.

About 40 minutes before the lunch break, Wilson directed Williams to build a box which could be used to store materials or clean up waste. The box was to be made with a pallet base, so that it could be easily picked up and moved using a forklift, and with sides made using form ply sheets. Wilson said that building such a box was pretty straightforward and commonplace on building sites, and that he expected it to take Williams about 30 to 45 minutes. Wilson said that he left the method of making the box up to Williams. He said that on building sites, there are often ‘10 ways to do the same task’, and that you would rely on the skill and experience of the person directed to do the task.

Shortly before the lunch break, Folaumoeloa left Browne to finish off the patching work because what was left to do was only enough work for one person. Folaumoeloa said that if Wilson caught two of them doing a one-person job he would ‘go off’ at them. Folaumoeloa said that ‘they were sacking everyone’ on the WGTP at the time, and that he and Browne were the last CCS workers there. He did not want to lose his job. He went to see Wilson to ask what he should do next.

Folaumoeloa said that he found Wilson on the deck of the bridge. He said that Wilson told him to ‘[g]o and help [Williams] build a box’. At the time, Folaumoeloa could see Williams about 50 metres away on the bridge. There is a dispute about this evidence. Wilson said that he could not recall being approached by Folaumoeloa or directing him to help Williams. He said there was nothing about this conversation in the statements he made as part of the incident investigation, and that he would have included it had he given Folaumoeloa this direction. Wilson agreed that if a worker had finished what he had instructed them to do, they would be expected to come to him for further directions. Wilson agreed that he would be surprised if Folaumoeloa had gone to assist Williams on his own initiative without asking him first, and that he would have included that in his statement as part of the incident investigation had it occurred. Wilson agreed that if he had sent Folaumoeloa to assist Williams without directing that Williams should be the one doing any necessary cutting of timber, he would not have been doing his job effectively as a supervisor or coordinator.

Williams had partially completed the box when he was approached by Folaumoeloa, as shown as in the photograph below:

The dark vertical line on the outside of the form ply is a chalk line that Williams made to show where it was to be cut. The partially completed box is resting on U-shaped steel reinforcement protruding from the bridge deck. As a result, the bottom edge of the form ply is suspended above the concrete deck. Williams used screws to attach the form ply to the pallet.

Folaumoeloa said that he asked Williams: ‘What do you want me to do?’, and that Williams responded: ‘Grab the saw and cut that line’. Folaumoeloa said that he asked Williams: ‘Why the fuck didn’t you cut it to size before screwing it off?’, or words to that effect. He said that Williams replied: ‘I don’t know man, just cut it’.

Folaumoeloa said that he questioned Williams because he was concerned about having to cut the form ply vertically. He said that Williams should have laid the form ply flat on two saw horses and cut it to size with a circular saw before attaching it to the pallet. He said that it is safer and easier to cut ply this way because you are standing up rather than bending over, the form ply is stable on the saw horses, and is at table level. Folaumoeloa had never previously cut form ply when it was in a vertical position using a circular saw.

Williams disagreed with Folaumoeloa’s evidence about the conversation that took place between them immediately before the incident. He said that the only conversation that occurred was that Folaumoeloa asked what he was doing, and he responded that he was ‘building a box’. He said that there was no discussion about Folaumoeloa doing any cutting of the form ply, and that he had no idea this was about to happen. He said that Folaumoeloa began cutting the form ply immediately after their brief exchange.

The model of circular saw that was available for Folaumoeloa to use is shown in the following photograph:

The saw is battery powered. It has two black handles. The main rear handle has a trigger to operate the saw. Both handles and the body of the device are to the left of the saw blade. The saw has a base plate designed to sit flush on the wooden item being cut. The saw blade is fully guarded above the base plate. A retractable guard covers the saw blade where it protrudes beneath the base plate. The cutting depth of the saw blade is adjustable. A notch on the base plate directly in front of the saw blade is used to guide the saw, for instance to cut accurately along a chalk line.

Kickback is a common hazard associated with use of circular saws. A kickback can occur when the saw blade becomes jammed in the kerf (cut) in the timber. A kickback may result from the saw blade not being directly aligned with the kerf. At full cutting speed, the saw blade rotates at about 5,500 revolutions per minute. A kickback that is not fully controlled may result in the saw kicking back towards the operator suddenly and at a fast speed.

Folaumoeloa said that after being directed by Williams to cut the form ply, he picked up the circular saw and started cutting down along the chalk line so that the edge would be flush with the end of the pallet. Folaumoeloa stood inside the box at the end of the pallet, facing in the direction of the camera in the photograph at [63] above. He bent forward and held the saw with his right hand on the main trigger handle and his left hand on the front guiding handle, with the saw on the outside of the form ply cutting down vertically from the top.

As Folaumoeloa was making the cut, the saw blade jammed. Folaumoeloa thought this was because the form ply was waterlogged from being left out in the weather, and/or because the saw blade was blunt. It is now agreed that Folaumoeloa was mistaken about both matters. Post-incident investigations showed that the saw was in good condition and the blade was not blunt. Williams said that form ply is impervious to water and would not have become waterlogged. After conducting a relevant experiment, Lewis came to the same conclusion. The likely cause of the saw becoming jammed was that Folaumoeloa was not able to keep the saw blade aligned with the kerf in the form ply because of the awkward posture he had adopted to make the cut.

After the saw jammed, Folaumoeloa had to remove pieces of form ply to free the saw blade so that he could resume cutting. The top of the form ply was about level with Folaumoeloa’s waist. He had cut almost halfway down the sheet when the saw jammed. He said that in that position, it was awkward for him to keep both hands on the saw handles. Folaumoeloa moved his left hand onto the trigger handle and used his right thumb to move the guard handle forward to expose the cutting blade. When he resumed cutting, the saw immediately kicked back towards him, severing the top of his right ring finger.

Williams said that he was measuring timber on two saw horses about five metres from the box when Folaumoeloa approached him. Williams said that the box was to his right and a fraction behind him. He said that Folaumoeloa ‘picked up a power saw and started cutting, it was very quick’. Williams said that it was a matter of seconds from the time Folaumoeloa started to use the saw and when he cut his finger, and that Folaumoeloa had already cut himself by the time Williams looked. Williams thought he had seen Folaumoeloa in his peripheral vision, leaning down towards the box from the outside using the same cutting method that Williams had intended to use. He said that he was surprised to hear and see Folaumoeloa using the saw.

Williams said that it was his preference to do the cutting because he was the qualified carpenter and it was important for the edges of the form ply to align so that the box would be stronger. However, he said that he could not and did not stop Folaumoeloa because it happened so quickly.

Williams agreed that as the qualified carpenter, he would make any decision about the carpentry work. He agreed that with Wilson supervising about 30 workers, it was important to have a senior person in the crew such as himself. He agreed that this was the job of the leading hand. Williams said that if he had been told he had an assistant to help build the box, he would have done the carpentry work himself, including sawing the form ply.

Folaumoeloa said that he would have used a reciprocating saw to cut the form ply because it was the safest tool to complete the task, but that no such saw was available. Folaumoeloa accepted that a reciprocating saw does not cut as straight as a circular saw, but said that there would have been no problem using one for the box because the edge did not have to be completely straight. He said that if he had to cut form ply vertically, he would always use a reciprocating saw and not a circular saw.

Wilson agreed that a reciprocating saw could be used to make a satisfactory cut for the box.

Williams said he would not use a reciprocating saw to cut the form ply because he was trying to build a perfectly square box. He said that you cannot get a straight cut with a reciprocating saw because the blades are quite ‘bendy’ and hard to control.

It was put to Folaumoeloa that he could have cut the form ply by standing in front of it, holding the saw to the side of his body and cutting from the top down. Folaumoeloa said that he would be off balance cutting this way, and it would be more difficult to follow the chalk line with a saw. He agreed, however, that this would have been a safer way to make the cut.

Lewis agreed that the form ply could have been cut vertically with the operator standing on the same side as the saw, holding the saw to one side of their body. He agreed that this would be safer than the method adopted by Folaumoeloa because the operator could keep their body away from the blade and both hands on the saw. However, he said that this was not the preferable method and he would not cut form ply that way.

Williams intended to cut the form ply by first adjusting the saw depth to 22 mm, because the ply is 19 mm; kneel with the box in front of him, with his right hand holding the trigger handle of the saw and his left hand on the front guiding handle; then cut from the top along the chalk line. Williams said that this method puts you in a stable position on the ground and allows you to brace if the saw kicks back, with your body being out of the firing line. He said that he had used this method in the past without difficulty. Williams said that for a person who is not a qualified carpenter, ‘cutting [horizontally] on a set of saw horses … is safer than a vertical cut, definitely.’ When Williams first attached the form ply to the pallet, he did not think anyone would be assisting him to build the box.

The alternative ‘cross-body’ method put to Folaumoeloa and Lewis in cross-examination was not put to Williams or any other witness. The method that Williams said he intended to adopt was not put to Folaumoeloa, Lewis or any other witness.

The following further matters are important. First, Folaumoeloa had never previously made a vertical cut with a circular saw. Second, Folaumoeloa had received no training or direction to assist him to determine what method he should use to cut the form ply. Third, the substance of Williams’ evidence was that the method he intended to adopt was appropriate for a skilled carpenter but not for a concreter/formworker who is less skilled in using a circular saw.

Folaumoeloa was asked:

Now, before you even started doing the cut on this particular board on the date, you had concerns about it, didn't you?---Yes, I did.
You didn't stop and take five and do anything about those concerns, did you?---I stopped and told [Williams], 'Why did you just screw it off?'.
So you stopped, you discussed it with Mr Williams?---Yes, I did.
And it was his direction that, 'Look, I don't know, man, just cut it'?---Yes.
That's what prompted you then to go about cutting the - ?---Yes.
So Mr Williams hasn't stopped and taken five either, has he?---No.
This conversation with Mr Williams which then led you to do the cut, happened pretty quickly, didn't it?---Yes.
A matter of seconds almost?---Yes.
After that discussion with Mr Williams you didn't escalate to matter to Mr Wilson?---No.
You didn't escalate the matter to either [Maher or Stephens], did you?---No.

Folaumoeloa said that his concern about keeping his job extended to being respectful to his supervisors and doing what he was directed to do without making a fuss. He agreed that when he spoke to Williams, he was being impolite and critical of Williams’ ‘stupidity’ in not pre-cutting the form ply before attaching it to the pallet. He said that he felt comfortable speaking to Williams in this way because they were around the same age and he felt that Williams would be able to take that language.

Post-incident investigation

As part of an investigation following the incident, Wilson completed an interview record on 28 May 2020 and provided answers to clarification questions on 3 June 2020.

In the interview record Wilson wrote: ‘When discussing the box making task with [Williams], [Folaumoeloa] was still patching underneath the bridge.’ The interview record includes the following questions and Wilson’s answers:

[Q]: Did anyone influence the incident (actions, emergency response, etc), if so how?
[A]: Not to my knowledge.
[Q]: How do you think the incident could have been prevented?
[A]: I am now aware [Folaumoeloa] is left handed which could have affected how he was holding the circular saw?

Wilson did not write anything in the ‘Additional comments/observations’ section of the form.

The clarification document includes the following questions and Wilson’s answers (where ‘IP’ refers to Folaumoeloa):

[Q]: Was the IP directed by yourself to build / cut the box? If not, what was the IP directed to do by yourself on the day?
[A]: No. Patching of girders. I had asked [Williams] approx. 20 mins before the incident that I wanted a box made & wanted it done before lunch.
…
[Q]: Did you check training of the IP on Damstra before assigning him tasks?
[A]: No. I don’t know how to use Damstra.
…
[Q]: Why was the IP not signed onto the Pre-Start Form for the day?
[A]: It is requested of everyone everyday to sign onto prestart / start cards however I did not check that each individual had signed onto the prestart at the conclusion of prestart.
…
[Q]: With numerous compliance gaps involved e.g. SWMS, Pre-Start etc, are there any recommendations you can make to ensure these don’t occur again?
[A]: Having a static crew which had been discussed with the Engineering team who control the budget. Requesting a worker for a short period of time, you are relying on the person allocating the worker to ensure they are competent & willing to abide by the project rules & procedures.
…
[Q]: What would you say would be the best practice method to conduct this task in the future?
[A]: Static work crew where, over time, you fully understand each individual’s abilities & willingness to follow project guidelines.
[Q]: Additional comments/observations:
[A]: Given the size/scope of the of works I am responsible for, along with access issues eg. 4 abutments with a creek in the middle, it can be difficult to get around to ensure that each subcontractor and/or worker is doing things in the correct way. As the project has subcontracted out the additional bridge structures & bridge strengthening the project doesn’t seem to realise the amount of work that still needs to be done by our own people and therefore being told there is no budget allocated to do these works so I am unable to have a static work crew.

Folaumoeloa provided answers to clarification questions with the assistance of his then partner in a form dated 4 July 2020, which included the following:

[Q]: Have you cut ply in this way before (vertically)?
– If yes, were there any issues previously?

[A]: Yes and there were no previous issues.
[Q]: Was there a reason why the ply was attached and cut vertically rather than on the saw horses (horizontally) in the area?
[A]: When I arrived the ply was already fixed to the pallet and I was directed to cut off the excess.
[Q]: Is there any additional information that may assist in preventing this type of incident from occurring?
[A]: If ply was pre-cut to the right size prior to being fixed to the pallet.
[Q]: Additional comments/observations:
[A]: I think the incident could have been avoided if I wasn’t directed to cut something that wasn’t set up right or necessary.

Folaumoeloa said that he answered the first question above in that way because he had previously used a reciprocating saw to make vertical cuts in form ply. He did not agree that his answer reflected any prior experience cutting vertically with a circular saw. I accept his evidence on this matter.

Williams completed an interview record on 28 May 2020 and answered clarification questions in a form that he signed but did not date. The interview record includes the following questions and answers:

[Q]: Please provide a detailed description of the incident and the events leading up to the incident.
[A]: Gathering material to form up a box. I started building the box. I went to get – another piece of the box and when I stepped away, I saw [Folaumoeloa] start to cut the ply. [Folaumoeloa] cut about halfway through and out of my peripheral vision I saw then heard the saw kick. [Folaumoeloa] dropped the saw and held his finger. I asked what happened, he said he’d cut his finger off. I could see blood and went over to him and saw his finger on the ground.
[Q]: Note anything unusual you observed prior to or during the incident (sights, sounds, smells, etc):
[A]: No.
[Q]: What was your role in the incident sequence?
[A]: I was working with [Folaumoeloa] and first one to notice he was injured. Provided initial care.
[Q]: What conditions influenced the incident (weather, time of day, equipment malfunctions, etc)?
[A]: Nothing.
[Q]: Did anyone influence the incident (actions, emergency response, etc), if so how?
[A]: Before incident – I don’t think so. After incident – first aid response – positive way.
[Q]: How do you think the incident could have been prevented?
[A]: If you’re not confident or if you’re not happy doing something, assess what you are doing at the time. Take 5.
[Q]: Additional comments/observations:
[A]: No.

The clarification document includes the following questions and Williams’ answers (where ‘IP’ refers to Folaumoeloa):

[Q] - How did the IP become involved in the task? Did you ask him to assist with the task?
[A]: I told him we’ll make the box.
[Q] – At what stage of the task (building the box) did the IP become involved?
[A]: From assembly. I had already cut a few pieces.
[Q] – Why did the formply sides get put on first rather than measure and cut on a horizontal plane (e.g. saw horses) before fixing to pallet?
[A]: Just the way I wanted to do it. I’ve done it heaps of times that way before. If you are positioned well, set up correctly (work area), you can cut vertically. It is part of chippy work.
[Q] – Do you need to flick up the safety guard to cut the ply used to make the box?
[A]: No. No reason to touch it to use the saw.
[Q] – Was a circular saw the best tool for the task?
[A]: It is the best tool for the task.
[Q] – What would you say would be the best practice method to conduct this task in the future?
[A]: I am comfortable cutting that way as a qualified chippy. And the use of saw horses when ripping timber when possible.

The outcome of the Joint Venture investigation is contained in three documents: an ‘Incident Investigation Report’ signed off by the Joint Venture safety and project managers on 18 June 2020 (‘investigation report’); a ‘Lessons Learnt’ document bearing the same date; and a document entitled ‘Toolbox Talk’ that is undated.

The investigation report determined that the root cause of the incident was ‘poor equipment handling’. The report contains the following additional explanation:

[Folaumoeloa] was deemed competent in the use of the circular saw involved in the incident via an in internal verification of competency (VOC) and was selected to the project by CCS Labour Hire on the basis of specialised labour suitable for patching / formwork of which suitable competence and experience in the use of a circular saw is required.

A timeline chart attached to the report provided the following additional detail:
[Folaumoeloa] was previously observed and deemed competent in circular saw use.

The responding action plan details recorded in the report are:
Action Required: Flash Report/Toolbox – Notification to all zones on reinforcing hazards of circular saw usage.
…
Action Required: Develop Lessons Learned — Include best practice guidelines for use of power tools.
…
Action required: Review of Labour Hire Verification of Competency Criteria – Labour Hire Provider to conduct review of requirements / criteria for provision of Power Tool Internal VOC’s against Incident Lessons Learnt.

A second contributing factor identified in the investigation report was the decision to attach the form ply to the pallet and trim in situ, rather than measure and cut the ply first. The ‘Lessons Learnt’ document recorded the following in relation to that factor:

An opportunity for a lower risk approach was available through measuring the ply wood first and cutting on a horizontal plane with purpose-built saw horses rather than fixing into position and trimming vertically in-situ.

The ‘Lessons Learnt’ document also recorded the following:

The risk of kick-back can increase depending on equipment handling and work method. If there is an incident, the severity of an injury can be impacted depending on how the operator holds the tool, where they stand and how the materials are secured and oriented.
Minimizing the risk of kickbacks
To reduce the risk of kick-back occurring the operator should ensure that:
…
·The item to be cut is securely clamped, and whenever possible on a stable horizontal mounting device such as a bench or sawhorse
…
·The operator has stable footing and that is cutting operation is done in a safe manner

When using a saw, the operator should:
·Stand to the side, to avoid the saw if it kicks back;
·Use two hands to operate the saw – one hand on the trigger switch and the other on the handle;
·Not remove hands from position until the saw blade has stopped rotating;
·Allow the saw to reach full power before starting to cut, and allow it to cut steadily; and
·Not twist the saw, change the direction or alignment of the saw blade.

Who needs to know?
The learnings identified are considered relevant to the following groups or personnel:
·Any one using circular saw or powered tools[.]

Similar information is contained in the ‘Toolbox Talk’ document.

On 26 June 2020, Stephens wrote to the Joint Venture to confirm that CCS had distributed the ‘Lessons Learnt’ document to its employees and that it would conduct ‘toolbox talks’ in relation to the use of circular saws and power tools. The letter said:

CCS has reviewed its VOC against Incident Lessons Learnt and made changes to include Risk of Kick-back.

Stephens said that CCS did this because the Joint Venture requested it, and because CCS did not want another incident to happen.

The CCS ‘Risk of Kick-back’ document bears a large stamp that reads ‘Safety Moment’. It contains the same information as the ‘Lessons Learnt’ document. Stephens agreed that the ‘Risk of Kick-back’ document he prepared contained directions that CCS employees were expected to follow. He agreed that it was very important that employees used circular saws correctly because incorrect use was potentially dangerous.

Roger Lewis

Lewis is a qualified engineer who has worked in the automotive industry for 27 years. He regularly performed task risk assessments and has developed company safety manuals over that period. Lewis has lectured at a university level on hazard identification, risk assessment and control, and on the legislative framework relating to workplace safety. He has engaged in volunteer and extracurricular activities including with Steamrail Victoria, BlazeAid and in theatre set design and construction. He regularly used power tools in each of these pursuits. Since 2019, Lewis has practiced as an engineer, safety adviser and ergonomist specialising in risk management in a variety of settings. I accept that Lewis’ training and experience qualifies him to express opinions about matters including design, construction, the safe use of mechanical equipment and the risk assessment process.

Lewis demonstrated in his reports the way in which Folaumoeloa attempted to cut the form ply. He said that the posture was subjectively very uncomfortable and that it was difficult to hold the circular saw stable and vertical, which made it very likely the blade would twist in the kerf and kick back. He said that kickbacks were difficult to control when adopting this posture, especially with the circular saw held in one outstretched arm. Lewis summarised in his primary report:

For these reasons, I consider that cutting the plywood in this manner would almost inevitably result in one or more kickback events, because of posture and reach (lack of control), one-handed operation (lack of resistance to kickback), …
Mr Folaumoeloa’s right hand was in the danger zone at the time of the incident, meaning he was in the path of the blade should a kickback propel the saw out of the cut.
…

From the rear of the blade to the rear of the baseplate was 46 mm, and the saw, if cutting at its full speed of 5500 rpm, could have covered that distance in five thousandths of a second. If he had been further back (134 mm), it would have covered the distance in around 16 thousands of a second.

Lewis said that regardless of the skill or qualifications of the operator, it was never appropriate to attempt to cut the form ply as Folaumoeloa did because both the likelihood and consequences of injury were high.

Lewis said that his preference is to cut form ply horizontally by clamping it to the workbench or saw horse, then cutting the overhang while standing to the side rather than behind the saw so there is no hazard if kickback occurs. Lewis said:

Cutting horizontally is always better and the reasons are firstly, that both hands can be kept on the tool so there is much better control of the tool. Second, is that the body can always be kept out of the line of fire should there be a kick back event, and the third one is, speaking from personal experience, it's much easier to operate a power tool standing up than bending over.

Lewis said that his preference was to use a reciprocating saw to make vertical cuts. This would allow him to watch the cut line, have both hands on the tool controlling it, and limit the risk of cutting himself as the blade is on the other side of the item. He said that he had never had a problem with craftsmanship using a reciprocating saw to cut vertically.

Lewis identified missed opportunities to devise and implement a safe system of work to eliminate or control the risk of injury that include the following:

(a) Conducting a risk assessment of the box construction task prior to commencement. The task of constructing the box was not discussed at that morning’s pre-start meeting. Had a risk assessment been performed, it would have been concluded that using the circular saw to cut the form ply vertically was not appropriate and that alternative methods should be considered.

(b) Cutting the form ply to size before attaching it to the pallet. If nearby saw horses were used, the form ply could have been cut horizontally with the operator standing mostly upright propelling the saw with both hands on the handles so as to limit exposure to the blade. Lewis said:

This opinion is based on 30 years of selecting and operating corded and cordless circular saws, including in theatre set production where large sheets of plywood and chipboard had to be cut to size for staging, sets, backdrops etc. In my experience, circular saw cuts were always best performed horizontally, and vertical cuts in sheet materials were generally performed with a sabre [reciprocating] saw.

(c) The wrong tool was selected for the task. A suitable alternative was to use a reciprocating saw to cut the form ply vertically.

(d) CCS deployed Folaumoeloa to work for the Joint Venture on the basis that he was experienced in using a circular saw. CCS failed to adequately train Folaumoeloa or to take steps to ensure he only performed tasks that he was competent to perform.

(e) The Joint Venture had no procedures in place regarding the safe use of circular saws for specific types of cuts, and took no steps to supervise the safe use of circular saws. The Joint Venture had no documented procedures in place for cutting form ply, including using a reciprocating saw if cutting vertically. Lewis said that he would have expected either a SWMS or a standard operating procedure to govern circular saw use. He said that these processes could be put in place by anyone who was expecting that type of work to be performed. He said there should have been a document that instructed workers not to cut form ply vertically.

(f) The Joint Venture should have identified that Folaumoeloa was not a skilled carpenter and should have limited the tasks assigned to him. Lewis said he would have expected that a qualified carpenter who saw Folaumoeloa attempting to make the vertical cut with a circular saw would have immediately stopped him because it was unsafe. He agreed that such supervision is imperative on a construction site.

Lewis said that it is imperative that an employer verify competency before a worker uses a circular saw. He would expect an employer to go through the VOC checklist item by item with the worker. Lewis was taken to Stephens’ note in the VOC that ‘when observing [Folaumoeloa] operate saw, he looked more than competent’. Lewis said that this is not the way to certify competency, adding:

… there are many ways to operate a circular saw, whether it's cutting things on a vice horizontally or whether it's [making] complicated cuts, plunge cuts; I would want to see evidence that there is competency in all of those or limit the certificate to what he is actually competent in. And cutting structural timber, the 90 by 45 that you might use for stabilising formwork is one thing because it's a short cut, it's done horizontally and it's easy to control because it's a short cut. Cutting sheet is, in my view, a different environment and it requires an assessment all of its own and it should be documented as an assessment particularly because of kick back.

Lewis added:
[Any] vertical cut requires additional skill over making a horizontal cut. In my opinion you can safely make a vertical upward cut but you need to know how to plunge and there are some other techniques involved in doing that which mean it's not really a preferable method. But if it's necessary then that should be taught and assessed. And I would expect that if that’s an anticipated method of cutting, that that verification of competency would include that type of task. If the only cutting that's done is structural sections or horizontal sections I would expect to see those assessed. Unless the person is training to be a fully qualified and experienced carpenter then the types of cuts to be performed would be very limited and the VOC should contain itself to the types of cuts being performed.

Lewis said that kickbacks are a recognised potential consequence of using a circular saw, and it is the responsibility of an employer to train an employee to ensure they are competent in dealing with them.

Lewis said that the ‘normalisation of deviance’, whereby safety breaches become psychologically acceptable when done routinely, is common. He said that this makes it essential for employers to provide regular updates and training about safety.

Lewis said that when assigning tasks in his volunteer work, he asks other members of the group what they are good at. If a task is hazardous, he asks whether they have done that type of task before, and to demonstrate that they are competent. He said that he does not assign tools or tasks to anybody who cannot prove they are able to do their own risk assessment and operate the tools safely. He said that before assigning Folaumoeloa to the task of making the box, Wilson should have asked whether he was familiar with using a circular saw to cut form ply and whether he had worked with Williams previously. Likewise, Williams should have asked Folaumoeloa whether he had cut form ply vertically with a circular saw before.

Lewis gave clear, sensible and logical evidence, which I accept.

Further findings

CCS did not give Folaumoeloa any instruction, direction or training in the use of circular saws at any time throughout his employment. Even if it is accepted that Stephens completed the VOC in 2019, it involved no more than him watching Folaumoeloa use a circular saw for a few minutes. Stephens did not engage with Folaumoeloa to go through each operation relevant to using a circular saw to check his competence. Even considered together with other casual observations made by Stephens during Folaumoeloa’s work with CCS, the VOC was not a sufficient basis to properly assess Folaumoeloa’s ability to use a circular saw safely or to determine that all circular saw tasks could be safely assigned to him.

Stephens wrote in the VOC that Folaumoeloa had been issued with a current relevant Safe Work Method Instruction. There is no evidence that any such instruction was issued to Folaumoeloa.

The Joint Venture did not give Folaumoeloa any instruction, direction or training in the use of circular saws beyond the limited generic information contained in the induction. The Joint Venture relied on CCS supplying concreters/formworkers with relevant training and skills. It did not have any separate process to assess the skills and competency of workers, including in the safe use of circular saws.

Neither CCS nor the Joint Venture provided Folaumoeloa any information, instruction, direction, warning or training before the incident about the risk of kickbacks associated with using a circular saw, whether (and if so how) to make vertical cuts when using a circular saw, or the circumstances in which alternative power tools should be used. No assessment was made of Folaumoeloa’s capacity to respond to those issues by CCS or the Joint Venture.

Neither CCS nor the Joint Venture took any meaningful steps to check Folaumoeloa’s competence in using a circular saw or to ensure that he was not assigned work tasks on the WGTP outside his assessed competence. CCS simply relied on Stephens’ casual observations of Folaumoeloa working. The Joint Venture relied entirely on CCS providing workers who were competent in all tasks that they may be called upon to perform.

While assisting Williams to complete the box was within the scope of work duties that Folaumoeloa could be called on to perform when working under the labour hire arrangement between CCS and the Joint Venture, neither defendant any instruction, direction or training to Folaumoeloa about the division of duties when assisting a skilled tradesperson such as a carpenter.

Williams was working permanently on the WGTP as part of teams supervised by Wilson. He was at the time a qualified and experienced carpenter, worked on the WGTP as Wilson’s right-hand man, was being paid as a leading hand, and was a senior worker in the Kororoit Bridge team. For these reasons, I accept that at least on some occasions Williams supervised other workers. I accept it was common knowledge on the WGTP worksite that Williams was a leading hand. I conclude that Williams was in the position of a leading hand, able to supervise Folaumoeloa and give him instructions in relation to building the box.

The case for the defendants is that Folaumoeloa did not approach Wilson seeking further work directions, and that the only conversation about building the box was the very brief interaction that Williams described. In that event, Folaumoeloa would have been acting completely without direction, virtually on a frolic of his own by taking it upon himself to cut the form ply. There is nothing in the statements made by Wilson or Williams, or elsewhere in the Joint Venture investigation documents, to suggest that this is what occurred. Wilson makes no criticism of Folaumoeloa in either statement on the basis that he did something he had not been asked to do, was acting contrary to instructions, or was on a frolic of his own. As Wilson agreed, that is the kind of thing he would have included in his investigation statement.

The incident occurred very shortly before the lunch break. It is understandable that if Wilson had been approached at that time, he would have directed Folaumoeloa to help with a simple task that he wanted completed before the break. The breadth of Wilson’s supervisory role increases the likelihood of him failing to recall a brief conversation in which he directed Folaumoeloa to assist Williams.

In his first investigation statement, Williams said that he was working with Folaumoeloa and saw him start to cut the form ply. In answer to a clarification question about how Folaumoeloa became involved in the task, Williams answered: ‘I told him we’ll make the box’. Williams’ investigation statements convey that Folaumoeloa was working with him to make the box, that he gave some instructions to Folaumoeloa in relation to the task, and that he saw Folaumoeloa begin to cut the form ply. Williams does not say in the statements that Folaumoeloa interfered with him building the box by attempting to cut the form ply unbidden or without notice to him. This is inconsistent with Williams’ oral evidence.

I accept that Williams was doing his best in oral evidence to give an accurate account of events. However, I conclude that his evidence involved a reconstruction of the events surrounding the incident and is unreliable for that reason. I conclude that Williams told Folaumoeloa to cut the form ply using the circular saw, and saw him start to make the cut. I conclude that there was an opportunity for Williams to intervene, either by cutting the form ply himself and instructing Folaumoeloa to do a different task; or by telling Folaumoeloa to stop when it was obvious that the method he was using to make the vertical cut was unsafe.

I accept Folaumoeloa’s evidence about the conversations he had with Wilson and Williams shortly before the incident occurred. I conclude that Folaumoeloa was directed by Wilson to help Williams build the box. No information about building the box was discussed at the pre-start meeting or recorded on the pre-start card. Wilson did not give Folaumoeloa any more specific direction about what he was to do or how the work was to be divided between him and Williams.

I accept the evidence of Folaumoeloa, Wilson and Lewis that the form ply could have been cut using a reciprocating saw had one been available.

I conclude that a concreter/formworker making a vertical cut in form ply using a circular saw without training or instruction, including as to the risk of kickbacks, is exposed to a risk of harm. This risk arises, in part, from the stance that might be adopted by the worker resulting in reduced stability, lack of full control over the saw, difficulty keeping the saw blade aligned with the kerf, and increased likelihood of kickbacks occurring and of injury. Safe methods to cut the form ply included cutting it to size on the available saw horses before fixing it to the pallet or using a reciprocating saw to make any necessary vertical cuts.

Liability

CCS breached the non-delegable duty of care it owed to Folaumoeloa by:

(a) failing to give Folaumoeloa any training, instruction or direction in relation to the use of power saws. Reasonable training and instruction should have included that, wherever possible, items should be horizontal and securely clamped before attempting to cut with a circular saw; the need to keep the saw blade aligned with the kerf; the risk of kickbacks; avoiding making vertical cuts; and the need to maintain both hands on the handles when operating the saw; and

(b) failing to properly assess Folaumoeloa’s competencies, communicate the result of that assessment to the Joint Venture or direct that Folaumoeloa not engage in tasks outside his assessed competencies.

The Joint Venture controlled the WGTP site where Folaumoeloa was working, engaged labour hire workers to perform contract work, supervised those workers and directed what work they were to perform. It owed a duty to Folaumoeloa to provide a safe system and reasonable supervision for conducting that work.[1] The Joint Venture breached its duty to Folaumoeloa by:
[1]Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.

(a) failing to have documented procedures for the safe use of circular saws, minimising the risk of kickback, cutting form ply and using a reciprocating saw to make vertical cuts;

(b) failing to provide a safe system for making the box by not making any assessment of that task; and

(c) failing to supervise and instruct Folaumoeloa to ensure that tasks requiring the specialised skill of a carpenter were performed by Williams.

In closing submissions, Cycon referred to Leighton Contractors Pty Ltd v Fox[2] in relation to the question of whether it owed any duty to Folaumoeloa. The appellant in that case, Leighton Contractors, was the principal contractor on a major building site. The respondent, Fox, was injured in the course of a concrete pumping operation in which Leighton Contractors had no direct role. Leighton Contractors did not engage any of the subcontractors who undertook the concrete pumping operation, and was not directly involved in the incident that resulted in injury to Fox. The High Court determined that Leighton Contractors did not owe a duty to Fox beyond a duty as occupier of the construction site, which was not engaged in the circumstances of the case.
[2](2009) 240 CLR 1.

This proceeding is distinguishable on its facts. The Joint Venture engaged labour hire workers from CCS and Cycon; directed what work they were to perform and how that work was to be done; controlled safety issues on site relevant to that work; and supervised the work. Cycon provided Williams’ services to the Joint Venture as an experienced carpenter and leading hand who worked permanently on site as Wilson’s right hand man. Williams had control over building the box. He chose to attach the form ply to the pallet before cutting it to size and what tools to use. He directed what work Folaumoeloa was to perform.

The risk of harm to a worker who is not an experienced carpenter using a circular saw to make a vertical cut in form ply was foreseeable to both the Joint Venture and Cycon. Both had the means to alleviate that risk.[3]
[3]Sydney Water Corporation v Abramovic [2007] NSWCA 248, [98] (Basten JA, Mason P agreeing).

I conclude that Cycon owed a duty to take reasonable care for the safety of workers who were supervised and directed by Williams to assist with tasks under his control. Further, Williams owed a duty to Folaumoeloa that arose from his position as leading hand, his control of building the box, and the directions he gave Folaumoeloa as to what task to perform. Cycon is vicariously liable for Williams’ negligence.

I conclude that Cycon and Williams breached the duty owed to Folaumoeloa by:

(a) failing to have a safe system for making the box; and

(b) failing to properly supervise Folaumoeloa by directing him to cut the form ply in the vertical plane, and to use the circular saw in circumstances where doing so was unsafe and/or required the skill and expertise of an experienced carpenter.

I conclude that each defendant’s negligence was a cause of the incident and Folaumoeloa’s injury.

The defendants submitted that there should be a finding of contributory negligence against Folaumoeloa. In response, Folaumoeloa submitted that the duty to provide a safe system of work was borne by one or more of the defendants. He submitted that in the absence of a safe system to cut the form ply, no responsibility could attach to him for adopting the method he used to make the cut.[4] Folaumoeloa’s submission does not fully address the contributory negligence case advanced by the defendants.
[4]Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 [57]–[58], [61] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ).

In his January 2024 report, Mohan said that Folaumoeloa would benefit from a pain management program. He said that at that time, Folaumoeloa did not have capacity to perform suitable employment. He described the consequences of the psychological injury as follows:

Mr Folaumoeloa is isolated. He has lost his relationship with his long-term partner and that is attributed to his injury and changes in his mood and persistent anxiety. He is isolated and he generally keeps to himself and needs support of his own family. He is restricted in his social, domestic and/or recreational activities and is likely to continue for foreseeable future.

In his February 2025 report, Mohan confirmed his diagnosis of chronic adjustment disorder with depressed mood and anxiety. He said that Folaumoeloa presented with a mixture of depressive symptoms and anxiety. He recorded Folaumoeloa’s current symptoms as follows:

[Folaumoeloa] has reported persistent anxiety. He struggles to eat. His sleep is poor and disrupted. He's tired and at times has had dreams of him hurting himself at work, and then he ruminates about the accident. His mood continues to be up and down. Energy levels remain low. Motivation to do things remains low.
He requires ongoing psychological therapy, regular psychiatric reviews that involve assessment of mental state and risks and review of his medications.

Mohan repeated his view that Folaumoeloa did not have capacity for suitable employment. He described the consequences of the psychological injuries as follows:
[Folaumoeloa] has a partner. He is living with his mother and brothers. He spends time with his nephews and nieces when they visit. He does not do household work. His mother does most of the household work. He has advised me that he only puts his dirty clothes in the washing machine. He didnt report anything that he enjoys doing except he likes going for walks and sometimes listens to music. Some days he doesnt do anything and stays in his room. He doesnt have friends and doesnt go out to have fun. Pre injury, he noted he went out, socialised and met people and hung out with his mates and went fishing and he doesnt do any of that now.

Mohan said that this was the totality of the history that Folaumoeloa gave in February 2025 about his activities. He was not aware that Folaumoeloa has been going to the gym regularly for the last 12 months and has been attending three times a week this year. He said that this was a significant matter which he would have included in his report had he been told about it.

In a brief report prepared in May 2025, Mohan said:

I believe Mr Folaumoeloa is unable to return to pre-existing work due to his ongoing psychiatric symptoms that he has reported to me in our tele-consults. Considering his age, and with the support from the family and psychological interventions, he may be able to work in long term if there is an improvement in his mental health but the prognosis is guarded.

Mohan said that he understood Folaumoeloa was now living close to his family with his partner and young child. He agreed that Folaumoeloa’s ability to form a romantic relationship, move out of home, cohabit and care for a child were all good signs. He said that Folaumoeloa had not talked to him about returning to work. He agreed that if Folaumoeloa was expressing the desire to go back to work, that was also a positive sign. He agreed that being around a supportive family and having a partner is good for Folaumoeloa.

Mohan agreed that litigation has been a great stressor for Folaumoeloa. He said that while it is difficult to speculate and there are no guarantees, he would expect that Folaumoeloa’s mental state might improve once the litigation resolves.

Mohan said that while he had seen improvement in Folaumoeloa’s social fabric over the last few years, he had not seen any improvement in his mental state. He said that Folaumoeloa continued to report being anxious, that his moods were up and down, that he was not sleeping and that he had chronic pain.

Mohan said that while face-to-face consultations are ideal, telephone consults are also robust clinical assessments. He agreed that objective signs of a patient’s state of mental health are based on observations of the person and the history obtained. He agreed that you cannot see a patient’s demeanour or the state of their personal care in telephone consultations. He said, however, that you can still understand what the patient is going through and what they are struggling with.

Dr Robyn Horsley

Folaumoeloa attended Horsley for medico-legal assessments in March 2024 and April 2025.

At the first assessment, Horsley obtained a history that Folaumoeloa experienced persistent chronic pain over the distal phalanx of the right index finger, the fifth finger and radiating up the ulnar side of the forearm that he rated at seven or eight out of 10. On clinical examination, Horsley noted hypersensitivity on palpation of the interphalangeal joint of the right fourth finger. On a test of grip strength using a Jamar device, she found that Folaumoeloa had 20 kg of force in the right hand and 40 kg on the left. Using a pincer gauge between the index finger and thumb, she measured that Folaumoeloa had only 6 kg force on the right and 8 kg on the left. She found the circumference of his forearms and upper arms to be equal.

There was little change in the history Horsley obtained at the second assessment in relation to Folaumoeloa’s activity and function. She recorded:

In terms of his new baby, he stated that he is able to change the baby’s nappy and change the baby’s clothes. He does little else. …
He stated that he is not job seeking because ‘his mental health and pain is not stable.’ He continues to walk daily; he finds that this helps manage his anxiety. He walks by himself, for 30-40 minutes per day.

Folaumoeloa reported chronic pain of similar severity to the first assessment.

On clinical examination in April 2025, Horsley found Folaumoeloa straightforward and less emotional compared to her first assessment. She found some hypersensitivity on palpation of the distal interphalangeal joint of the right fourth finger. She noted that Folaumoeloa’s weight had dropped to 85 kg. On this occasion, she made the following assessment of hand strength:

Using the Jamar, there was no fear avoidance behaviour exhibited. Over three trials on the right, he had 30kgs force, 28kgs force and 25kgs force and on the left, he had 44kgs force, 40kgs force and 45kgs force. Using the pincher gauge between the index finger and thumb, he had 20kgs force bilaterally consecutively over three trials, again confirming that there was no fear avoidance behaviour exhibited.

Horsley said that Folaumoeloa’s primary issue was chronic pain and that his prognosis was directly related to his psychiatric status. She considered that there had been an improvement in his mental health since her first assessment. Horsley repeated in oral evidence that Folaumoeloa’s psychiatric condition is the overwhelming predominant feature of his injury. She said that if Folaumoeloa’s mental state improves, his ability to cope with the pain he experiences will also improve.

Horsley said that with support of his treaters and appropriate vocational coaching, Folaumoeloa would develop a capacity to transition to suitable employment in an open labour market subject to some functional restrictions. She added:

When one considers Mr Folaumoeloa’s overall presentation today, and upon taking into account his physical disability, his educational background to Year 9, his literacy issues, his very basic computer skills, his history of ADHD, and the requirement to work in a structured environment, the recommended physical restrictions and the requirement for a literacy assessment, his opportunities for redeployment will be limited. His ability to retrain is dependent upon the outcome of the literacy assessment and his ability to upgrade his computer-based skills, and clearly that depends upon an improvement in his mental health, concentration and attention span and the ability to gain and retain new knowledge.

Horsley considered that Folaumoeloa would benefit from a referral to a pain specialist, education on using his right hand from a hand therapist, and a literary assessment and upgrading of skills depending on the result.

In her oral evidence, Horsley said that she always asks about gym, swimming, walking and home exercises when obtaining a history from patients. Horsley did not obtain a history that Folaumoeloa was regularly attending the gym. She said that the fact he is able to go to the gym is very positive.

Horsley agreed that Folaumoeloa appears to be using his right hand and arm. She said that she assessed his hands but did not mention the presence of any callouses in her report. She agreed that callouses are an indication that someone is using their hands for some form of physical activity. Horsley accepted that the photographs taken by Slesenger at his recent assessment of Folaumoeloa showed a bit of thickening of the skin at the base of the middle finger that one could call a ‘callosity’, but that this was likely to be longstanding and related to Folaumoeloa’s work as a concreter.

Horsley agreed that the improved Jamar measurements on the right side in April 2025 were a good prognosticator for Folaumoeloa’s return to work. She said that if Folaumoeloa had told her he was hopeful about getting back to full-time work in six months, she would regard that as a very positive outcome.

Horsley took a detailed history of Folaumoeloa’s treatment and prescription medications at both assessments. She did not obtain a history of the prescription of medicinal cannabis on either occasion.

Dr Joseph Slesenger

Slesenger assessed Folaumoeloa by videoconference in February 2024 and reassessed him at a face-to-face consultation in April 2025.

At his first assessment, Slesenger took a history that Folaumoeloa may walk for about a kilometre but was not engaging in any other daily activities. Slesenger gave the following opinion:

There appeared to be evidence of callosities on both hands which do not appear to be consistent with the level of activity described at evaluation. There also appeared to be an absence of wasting in the right hand despite the reported weakness and the restricted range of movements demonstrated. This may be indicative of a functional element to his presentation although this should be confirmed at a face-to-face evaluation.

Slesenger said that Folaumoeloa could not return to work as a concreter. He said:
However, taking into account the history of the examination, the documentation as well as limited evidence of bimanual tasks currently being performed, I am of the opinion that he could return to work, performing duties with restrictions, namely:
·No push, pull, carry or lift over 5 kg on a repetitive basis and 10 kg on a repetitive basis.
·Avoid firm gripping, pushing and pulling.
·Avoid forceful torque movements.
·Gloves/hand protection to be wore [sic] when required.

He said that with these restrictions, Folaumoeloa could return to work as a packer (light items), seated product assembler (light items), car park attendant, meter reader or light delivery driver. He said that a return to work should commence with part-time hours increasing to full-time over six to eight weeks.

At the face-to-face assessment in April this year, Slesenger obtained the following history of symptoms and function:

Mr Folaumoeloa advised that his right hand symptoms persisted with ongoing pain in the right ring finger, particularly at the distal end of the finger. The pain is constant and severe at a level of 7/10. The pain is stabbing, throbbing and burning in character.
The pain is aggravated by activity, cold weather and is most noticeable on waking. He has a restricted range of movements. He is unable to make a full fist on the right side.
He also has pain in the right little finger, although this is less intense when compared to the ring finger. He has a well-preserved range of movements in the little finger.
…
Mr Folaumoeloa advised that he continues to have weakness in the right hand, difficulty with torque movements and difficulty with repetitive tasks, but he is able to perform fine dextrous tasks, write, type with his phone although he types with his left hand when using a computer. He can do up buttons and zips.

Slesenger recorded the following history of daily activities:

Mr Folaumoeloa wakes around midday and during the day, he walks and spend time with the family, but he is avoidant of most other activities.
His family continues to perform domestic duties. He advised that he could perform light laundry tasks, otherwise, he is not engaging in any domestic activity.

Folaumoeloa told Slesenger that he was considering returning to work in a lighter role, but was uncertain what work he could do.

Slesenger found an even distribution of callosities on both of Folaumoeloa’s hands, and no tenderness on palpation of the right fourth finger. Using a Jamar, he recorded grip strength as 18 kg, 10 kg and 5 kg on the right; and 46 kg, 44 kg and 40 kg on the left.

Slesenger gave the following opinion in relation to diagnosis:

In the interval since the last evaluation, there has been no reported change in Mr Folaumoeloa’s symptoms or function, however, the clinical examination demonstrates a number of inconsistencies, including:
·Absence of wasting despite the weakness and restricted range of movements.
·Even distribution of callosities on both hands.

In relation to prognosis, he said:
I am of the opinion that the incident-related impairment has in the most part resolved. Whilst Mr Folaumoeloa complains of ongoing severe pain in the right hand, there is evidence that he is engaging in repetitive manual tasks and there is no evidence of avoidance to the right side.

In oral evidence, Slesenger said that the callouses he observed on Folaumoeloa’s hands were consistent with use, including carrying weights and engaging in forceful activities. He said that the callouses were inconsistent with the history that Folaumoeloa could not make a full fist. He said that combined with the lack of any muscle wasting, the findings on clinical assessment were inconsistent with the functional restriction and lack of use of the right hand that Folaumoeloa described.

Slesenger said that callouses associated with Folaumoeloa’s work as a concreter would have disappeared within months of him ceasing work. He said that he ‘would not expect to have seen callouses, particularly as prominent as this on a man who has not been working’.

In his April 2025 report, Slesenger said that Folaumoeloa had capacity for work with the following restrictions:

·No push, pull, carry or lift over on a 10 kg repetitive basis and 15 kg on an occasional basis.
·Avoid prolonged gripping and torque movements.

In oral evidence, Slesenger added in relation to work capacity:

… [Folaumoeloa] would benefit from support from a return to work coordinator. He has manual function, I would anticipate that a return to work plan would look at a pick packing role, a role where perhaps you could be re-trained to operate earth moving equipment. So yes, he would need to be re-trained but I anticipate that — I don't see a barrier to him being re-trained given his physical limitations.

Slesenger said that the grip strength measurements taken by Horsley were consistent with some loss of function on the right, but that any measurement above 25 kg is generally accepted as indicating reasonably good function. He said that the ring finger is probably the most irrelevant in terms of manual gripping strength. He said that the index finger and little finger provide the most strength, and that Folaumoeloa’s hand will function normally in terms of pinch grip and key grip which are most useful for torque movements. Slesenger said that the results Horsley obtained on clinical examination reassured him that Folaumoeloa could return to work in the roles he identified.

Other medical evidence

Folaumoeloa tendered the medico-legal report of Dr Andrew Muir, pain management consultant, prepared following a telephone consultation on 7 July 2022. Muir records that no examination of Folaumoeloa was possible. His opinion adds nothing to the assessment of Folaumoeloa’s injuries.

The Joint Venture tendered a letter from Dr Clayton Thomas to Navani about a pain management program that Folaumoeloa was not able to undertake because of his relocation to Sydney.

Return to work reports

The Joint Venture tendered reports of Nabenet Integrated Workplace Health Services about attempts to engage Folaumoeloa in a return to work in 2020 that did not progress or succeed.

CCS tendered a vocational assessment and labour market analysis by Anne-Marie Quinn of CoWork Pty Ltd dated 2 May 2024 (‘CoWork report’) which addressed suitable job options. Slesenger relied on this report in his assessment of Folaumoeloa’s capacity for employment.

Dr Thomas

Folaumoeloa has consulted with Thomas for two or three years. There is evidence that the treatment provided by Thomas has resulted in significant improvement. Very little information about that treatment was available to the other medical witnesses. No excuse was given for not calling Thomas to give evidence. The degree of Folaumoeloa’s improvement is a central issue in the assessment of damages. It is appropriate to infer that Thomas’ evidence would not have assisted Folaumoeloa, and to take the failure to call him into account in assessing the evidence of improvement.[5]
[5]Jones v Dunkel (1959) 101 CLR 298.

Damages
Pain and suffering
Folaumoeloa

Particularly relevant to the assessment of pain and suffering are the shocking nature of the injury, the three surgical procedures Folaumoeloa has had to endure, and the intense ongoing pain he has experienced. This has included development of a now-resolved complex regional pain syndrome and sensitivity in the ring finger. Folaumoeloa has lost the enjoyment of work, recreational and social activities. He has been left with a permanent physical impairment of his right hand and a significant psychological reaction. Folaumoeloa requires daily assistance to deal with his pain and life-saving medication for his mental state.

Given Folaumoeloa’s young age at the date of injury and excellent prior health, an award of damages of at least $500,000 ought to be made.

Defendants

There has been significant improvement in Folaumoeloa’s condition over the past 12 to 24 months, which is a positive prognostic indicator for the future. Folaumoeloa has had no prescriptions of pain medication since his last attendance with Navani in April of this year. Use of medicinal cannabis has improved his pain and allows him to function better.

Folaumoeloa’s treatment has largely been by telehealth consultations. These provide limited opportunity for clinical examination and assessment. As a result, the opinions of Navani, King and Mohan are based on Folaumoeloa’s subjective reporting with limited opportunity for objective clinical assessment. This is relevant because there is an inconsistency between the reported severity of symptoms and the objective clinical findings, and because the treating doctors do not have an accurate picture of Folaumoeloa’s improved functionality. There is no reason why improvement should not continue into the future.

The defendants submitted that pain and suffering damages should be assessed in the range of $250,000 to $400,000.

Analysis

Folaumoeloa was able to enjoy a full and productive life prior to the incident. He worked long hours engaging in hard physical work. He had a positive relationship with his then long-term partner and enjoyed recreational pursuits, including fishing, snooker and hiking. Folaumoeloa was an active member of his large and close-knit family.

The injuries sustained by Folaumoeloa are summarised as follows:

(a) traumatic amputation of the distal joint of the right ring finger, requiring surgical reattachment and resulting in ankylosis of the distal interphalangeal joint;

(b) development of complex regional pain syndrome which has since resolved;

(c) hypersensitivity in the area of the distal interphalangeal joint which has since largely resolved; and

(d) chronic adjustment disorder with depressed mood and anxiety.

I have reservations about relying on the opinions of the treating practitioners. My analysis of King’s evidence is set out in paragraphs [177]-[180] above. There is substance in the defendants’ criticism of assessments that are based almost entirely on telehealth consultations. The telehealth assessments do not allow for the usual physical or mental state examinations to occur. There is a lack of clinical observations recorded by Mohan and Navani. I accept that their opinions are largely based on the history obtained from Folaumoeloa. Neither Navani nor King has any history of Folaumoeloa’s use of medicinal cannabis, and Mohan’s history in that regard is very limited and dated. No treating practitioner obtained a history of the improvements Folaumoeloa has experienced in his physical and social functioning over the past 12–18 months.

There are more similarities than differences between the opinions of Horsley and Slesenger. There is little difference between the functional restrictions that Horsley and Slesenger say result from the physical injury. Like the treating practitioners, Horsley and Slesenger did not obtain a history of the prescription of medicinal cannabis and the resulting ameliorating effect on Folaumoeloa’s symptoms, or of the gym attendance and recent improvements in Folaumoeloa’s functioning.

Slesenger recorded his examination of Folaumoeloa’s hands and the finding of callouses. Folaumoeloa agreed that he had callouses on both his hands when he was seen by Slesenger. On this issue I prefer Slesenger’s evidence to that given by Horsley.

In combination, Folaumoeloa’s improved Jamar scores, the lack of functional signs recorded by Horsley, and the absence of any significant muscle wasting and the signs of use observed by Slesenger, support the conclusion that Folaumoeloa now has reasonable function in his right hand. I conclude that there is some inconsistency between that improved function and the history of complaints and restrictions recorded by the treating practitioners, Horsley and Slesenger.

Folaumoeloa lives in a very supportive family environment. There are signs that he is making positive progress with support and encouragement from Penkul and his family. Folaumoeloa is increasingly able to assist with domestic tasks at home and enjoy activities such as family gatherings, going out to eat, walks along the beach, and attending the gym regularly. It is likely that with continued support, a more positive outlook and removal of the acknowledged significant stress associated with this proceeding, there will be further improvement in Folaumoeloa’s condition.

I largely accept the evidence given by Penkul, who I regard as a supportive but pragmatic witness. Tapaatoutai was a genuine witness whose obvious concern for the welfare of her younger brother coloured her perception of the effect of the injuries on him. The evidence she gave is not consistent with the improvements in Folaumoeloa’s condition or his current level of activity and function.

Folaumoeloa has a physical capacity to engage in suitable employment. I accept that there are barriers to his employment including his limited literacy, his long period out of the workforce, his inability to return to pre-injury employment for which he has the skills, the functional restrictions recommended by Horsley and Slesenger, and his continuing adjustment disorder. Folaumoeloa may require assessment and support to successfully re-enter the workforce. It is not possible to be precise about the form this support will take or when a return to work will occur.

The assessment of pain and suffering damages submitted on Folaumoeloa’s behalf is not open on the evidence.

I conclude that a reasonable award of damages for pain and suffering, including loss of enjoyment of life and loss of amenity, is $300,000.

Loss of earning capacity
Folaumoeloa

Folaumoeloa has been totally incapacitated for work since the incident. His loss of net wages and superannuation to date should be assessed at $656,016.

Folaumoeloa has a continuing loss of capacity that should be assessed at $2,753 per week, inclusive of superannuation. Using the 6% multiplier to age 67 of 791.8, this represents a future loss of $2,179,825.

It is likely that Folaumoeloa will remain totally and permanently incapacitated for work. However, there should be some allowance for the modest prospect of his returning to work in some capacity. This should take account of the difficulties Folaumoeloa is likely to experience in obtaining and maintaining employment. It would be reasonable to increase the vicissitudes factor from the usual 15% to something in the range of 25% to 30% to take account of the chance of his return to employment.

Defendants

The occupational physicians are essentially agreed that Folaumoeloa has a physical capacity to return to work in employment for which he could earn in the region of $1,083 to $1,268 gross per week. The calculation of loss for the past 12 months and into the future should take account of his retained earning capacity.

Folaumoeloa’s employment on the WGTP and the high earnings he was enjoying were somewhat precarious. A high vicissitudes factor should be applied to any assessment of future loss of earning capacity because of Folaumoeloa’s young age, the heavy nature of his pre-injury employment, and the fact that he was earning at such a relatively high level at the time of the incident.

Past loss should be assessed at $341,550. Future loss, taking into account Folaumoeloa’s retained earning capacity, should reasonably be assessed in the range $286,000 to $500,000.

Analysis

There was considerable disagreement between the parties about the rate at which Folaumoeloa’s uninjured earning capacity should be assessed. Folaumoeloa relied on his average earnings in the years prior to the incident, or alternatively on the amount he earned in the period of about 10 months before the incident. He submitted that this figure should be increased by annual increments provided for by the CCS enterprise agreements. The defendants relied on the last payslip pre-incident as representing Folaumoeloa’s earning capacity. They submitted that there was no proper evidentiary basis for any increase in that earning capacity over the period since the incident.

Folaumoeloa’s gross earnings for the 2017/18 and 2018/19 financial years, including overtime and site allowances, were $172,000 and $144,000 respectively. His payslips for the period from 1 July 2019 to 8 March 2020 reflect an annual gross earnings rate of $157,000.

It is evident from the payslips that Folaumoeloa’s earnings were significantly impacted by COVID-19 restrictions between 8 March 2020 and the date of the incident. The impact of COVID-19 on earnings should not be ignored. However, a number of witnesses said that construction workers such as Folaumoeloa were protected from ongoing adverse impacts of COVID-19 restrictions because they were considered ‘essential workers’. In the circumstances, an assessment of Folaumoeloa’s earning capacity should not be based on reduced earnings resulting from the short-term impact of COVID-19 restrictions.

The Joint Venture and Cycon accepted that past loss should be assessed on the basis of total incapacity to the date of trial. CCS was alone in submitting that some allowance should be made for capacity to work over the past one to two years to reflect sustained improvement in Folaumoeloa’s condition over time, in part in response to prescription of medicinal cannabis, Slesenger’s opinion as to residual capacity, and the alternative employment options outlined in the CoWork report.

I have accepted that there has been gradual sustained improvement in Folaumoeloa’s physical and psychological health relevant to the injury over the past two years. However, it is not in doubt that there are continuing barriers to his employment as outlined in [230] above. I conclude that while residual capacity to earn is very relevant to the assessment of future loss, Folaumoeloa’s past loss should be assessed on the basis of total incapacity.

The significant variability in Folaumoeloa’s earnings over the three years prior to the incident, and from one payslip to the next, reflects the hours of overtime he worked and the worksite/living away from home allowances he was paid. There is evidence to suggest that this variability was likely to continue and even increase over time. Folaumoeloa said that before the incident, the number of CCS workers on the WGTP had reduced and that only he and Browne were still working at the Grieve Parade worksite. Wilson and Stephens both gave evidence about fluctuation in the demand for workers. CCS pointed to a media article published in 2020 which reported that a large number of workers had been or were at risk of being laid off the WGTP. The media report related to a different WGTP worksite and the impact, if any, that the matter reported would have had on Folaumoeloa’s job security is uncertain. Stephens also gave evidence about fluctuations in the number of workers employed by CCS. He said that CCS had up to 20 workers on the WGTP in around 2020; that the CCS workforce fluctuated from about 15 workers in 2016 to a maximum of about 70, although Stephens could not recall when this was; and that it currently has a workforce of around 35.

The WGTP is a ‘tier 1’ construction project. Stephens and Wilson said that the base pay rate for workers like Folaumoeloa does not vary between projects, but that the worksite allowance is highest for tier 1 projects.

Stephens said that CCS only finished working on the WGTP about four months ago.

Wilson said that while the demand for concreters/formworkers in the construction industry tends to fluctuate, the level of demand in Victoria in recent times has been strong as a result of government ‘Big Build’ projects.

According to the CCS enterprise agreements, the base hourly rate of pay for workers increased by 3% per annum for each year from 2020 to 2024. The weekly superannuation contribution increased from $250, which was the rate when Folaumoeloa was injured, to $280 in 2024.

According to his tax returns and payslips, Folaumoeloa’s net earnings in the 2017/18 financial year were $114,132 annually, and $2,194 weekly; in 2018/19, $100,323 annually and $1,929 weekly; and for the period to 8 March 2020, $109,668 and $2,109 weekly.

There were no real positive vicissitudes for Folaumoeloa for the period from the date of the incident to the date of judgment. The best he could hope to achieve was continued capacity to earn at a rate reflected by past earnings, subject to annual increments. On that basis, Folaumoeloa’s injured earning capacity in mid‑2020 was about $2,350 net per week including superannuation, increasing to a current figure of around $2,650 per week. The past period from the date of the incident to the date of judgment is 276 weeks.

Negative vicissitudes include the possibility of reduced work hours on something other than a tier 1 construction project, as a result of fluctuations in the CCS workforce and the demand for workers on the WGTP. I conclude that those fluctuations were likely to overwhelm annual hourly rate and superannuation increments as they had in the past. I conclude that a reasonable starting point to take account of those matters is the uninjured earnings rate that applied at the date of Folaumoeloa’s injury. This results in a figure for past loss of $648,600. I conclude that a further modest discount is warranted to take account of the identified vicissitudes. I assess Folaumoeloa’s past loss of earnings at $600,000.

The assessment of future loss of earning capacity must take account of the following negative vicissitudes:

(a) the heavy nature of work as a concreter/formworker, and the possible impact this would have on the longevity of Folaumoeloa’s employment in the trade and his ability to work long hours of overtime;

(b) the possibility that the demand for concreters/formworkers will not be sustained at the current high level; and

(c) the associated possibility that but for injury, Folaumoeloa may not always have enjoyed the highest paid employment on tier 1 construction projects.

These vicissitudes must be assessed on the basis that Folaumoeloa is only 30 years old and has over 35 years of work life ahead.

The matters that support Folaumoeloa having a residual capacity to earn are:

(a) the significant and sustained improvement in Folaumoeloa’s physical and psychological health over the past two years;

(b) the likelihood of his further improvement in future;

(c) Folaumoeloa’s positive evidence about the possibility of his return to work;

(d) physical conditioning associated with regular gym attendance that will likely assist a return to work;

(e) that Folaumoeloa is young and otherwise enjoys good health; and

(f) the support provided by Folaumoeloa’s partner and close family.

The evidence does not support a conclusion that Folaumoeloa is permanently unable to engage in the process of returning to work. At least in the first instance, it will be a matter for Folaumoeloa to choose the treatment and services he wishes to access to assist with that process. That may include pain management, a literacy assessment as recommended by Horsley, or other return-to-work assistance and support as discussed by Horsley and in the CoWork report. The form and timing of any attempted return to the workforce is currently uncertain. As against that uncertainty, I accept the likelihood that having regard to his physical injury, functional restrictions and psychological health, Folaumoeloa has a current capacity to engage in employment.

I accept that the job options identified in the CoWork report generally represent the capacity that Folaumoeloa has to return to the workforce. Those job options are only representative of, and do not dictate with any precision, the limits of Folaumoeloa’s future capacity. Further opportunities may be revealed after his re-entry to the workforce. Remuneration for the job options outlined in the CoWork report is calculated on a 38-hour week.

An assessment of future loss at $2,650 net per week to age 67, with the resulting multiplier of 791.8, calculates at $2,100,000.

I have already noted that there are significant vicissitudes which should be taken into account in an assessment of Folaumoeloa’s uninjured earning capacity as a concreter/formworker. Reducing the assessment of uninjured earning capacity by 25% results in a figure of $1,575,000.

I include the following calculation for comparison purposes only. A return to work as a road traffic controller or salesperson, two of the positions identified in the CoWork report, on a standard 38-hour week may result in net earnings including superannuation of around $1,200 per week. A calculation of future earnings to age 67 with a discount to allow some time to return to the workforce results in a valuation of residual capacity of around $900,000. There should be some reduction of the assessment of injured earning capacity for vicissitudes. However, there are also reasons why this calculation might represent an under-assessment of Folaumoeloa’s injured earning capacity. As he develops skills after a return to work, Folaumoeloa’s employment options may improve. As with the assessment of uninjured earning capacity, some account should be taken of Folaumoeloa’s willingness to work overtime hours. On that basis, an assessment of injured earnings would be at about $850,000.

Taking all matters into account, I conclude that a reasonable assessment of Folaumoeloa’s future loss of earning capacity is $725,000.

Summary

I assess Folaumoeloa’s damages as follows:

(a) Pain and suffering at $300,000.

(b) Past loss of earnings at $600,000.

(c) Future loss of earning capacity at $725,000.

(d) Total at $1,625,000.

That assessment is reduced by 10% for contributory negligence.

I will award Folaumoeloa damages of $1,462,500.

I will hear from the parties as to any consequential orders.

SCHEDULE OF PARTIES

S ECI 2022 05186
BETWEEN:
SEBASTIAN-FAKAUA FOLAUMOELOA	Plaintiff
- v -
CCS COMMERCIAL CONSTRUCTION SPECIALISTS PTY LTD (ACN 145 874 344)	First Defendant
CPB CONTRACTORS PTY LTD (ACN 000 893 667)	Second Defendant
JOHN HOLLAND PTY LTD (ACN 004 282 268)	Third Defendant
CYCON CIVIL PTY LTD (ACN 144 647 558)	Fourth Defendant

[2025] VSC 592

18 September 2025