Krojs v JMC Residential (Vic) Pty Ltd (ACN 126 736 570)
[2018] VCC 854
•15 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-15-02898
| IGOR DANIEL KROJS | Plaintiff |
| v | |
| JMC RESIDENTIAL (VIC) PTY LTD (ACN 126 736 570) | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8, 12, 13 and 14 June 2018 | |
DATE OF JUDGMENT: | 15 June 2018 | |
CASE MAY BE CITED AS: | Krojs v JMC Residential (Vic) Pty Ltd (ACN 126 736 570) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 854 | |
REASONS FOR JUDGMENT
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Subject: NEGLIGENCE
Catchwords: Breach of statutory duty and occupier’s duty
Legislation Cited: Wrongs Act 1958
Judgment: Proceedings dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Mr J L Batten | Norris Coates |
HIS HONOUR:
1 The plaintiff represented himself in this claim for damages arising out of an incident on 9 July 2012. On that day he alleges he was at a construction site where units were being built in Maidstone. A company he was a director of, Allover Painting and Design Pty Ltd (“Allover”), employed him to perform painting work at the site.
2 The company had tendered for the painting work and entered a contract with the defendant, JMC Residential Vic Pty Ltd (ACN 126 736 570) (“JMC”), which was the head contractor and the occupier of the site. Negligence, breach of OH&S regulations and of the Wrongs Act 1958 duty owed by an occupier are alleged as causing injury to him in the incident while lifting and/or handling two drums of paint. The plaintiff of course must prove his case.
3 Allover was effectively the plaintiff’s vehicle to contract painting work and hence employment as a painter at the time. His role went much further than this. He tendered for the work and signed agreements at each of five stages of the works. These successive stages of tender were followed by signed Subcontractor Agreements that ranged over two years or so from the first one on 15 April 2010 until the last on 19 April 2012.[1] In the first, he signed on behalf of Allover to provide contract painting to the value of $371,000 plus GST and in that fifth one, for $136,000 plus GST. There were others in between these first and last-stage agreements. It was during the currency of this fifth stage of the works, and thus this fifth agreement, that the alleged injury occurred on 9 July 2012.
[1]Exhibits 2 and 3
4 The plaintiff had worked as a painter since 1988 or 1989 and is now fifty-seven years old. He was usually employed by successive companies he set up and ran. After several years each company was eventually wound up, owing considerable debts. He would then set up a new company, and something like ten or so entities have been registered.[2] Various debts were agreed to by the plaintiff in cross-examination, with some being for very large amounts for his different companies over the years.[3] He initially said they were debts to ASIC. But on enquiring further myself in the face of a number of unlikely answers given in the witness box, it seems they were other debts including ones owed to the Australian Taxation Office.[4] After a winding up he would then often set up a new corporate entity and stay engaged in similar work. Shadow Australia Pty Ltd is the current family painting company.
[2]Transcript (“T”) 42-53
[3]T49, 57
[4]T56
5 It was a very considerable advantage to be able to both hear and, just as importantly, to observe the demeanour of the plaintiff as a witness. I found he was a very unsatisfactory and unreliable witness. He was evasive and at times prevaricated. At times when pressed with an awkward question he would say something quite implausible. It would then be shown to be inaccurate. But he obviously thought at the time it would assist him to avoid a difficult question.
6 There were numerous examples of why in the end I found his credit was very seriously impugned. I will only refer to a few. He was very evasive when challenged about him being the real company representative when it came to Allover’s dealings with JMC. While his son Jeremy was listed on ASIC documents, it is clear that the plaintiff himself was not only the “go-between” for Allover in its dealing with JMC, but he was the only person making any decisions for Allover.
7 It was he who was receiving the invitations to tender, dealing with the subcontractor agreements and then executing same on behalf of the company. It was he who was on a day-to-day basis dealing with the supply of paint, equipment and subcontractors at the construction site through the various five stages.[5] Mr Krojs was at all times the working manager and “sole boss” of Allover.[6] In spite of this, time and again, he was evasive and very reluctant to describe his true role in all of these dealings.
[5]T63-75
[6]T74,356
8 Even when faced with written evidence in the form of JMC Minute Meetings of the various trades meeting onsite and discussing site issues, he was evasive. The documents show that he was in attendance and was described as Igor Bilitz or Igor Blitz.[7] It was with reluctance, evident both by way of hesitation in answering as well as demeanour, that he conceded he was the same “Igor” referred to in those meetings. Even though “Painter” was mentioned as one of the trades attending these meetings, he demonstrated a reluctance to admit he was involved. On the probabilities he was the “Painter” who was at each of these meetings.
[7]Exhibit 4
9 One of his complaints against JMC as the occupier is the failure to provide mechanical equipment to carry drums of paint. However, these meeting minutes clearly demonstrate that there was OH&S discussion that included forklift manatu (later referred to as manitou) lifts being available onsite to lift heavy construction items. Such equipment had to be booked the day before if it was to be used.[8] The plaintiff was extremely evasive with respect to this recorded reference to manitou lifts. I reject his rather slow response to this document in saying it was not available to painters.[9]
[8]Exhibit 4, 3 July 2012 meeting
[9]T106
10 His evidence was very unsatisfactory in relation to the WorkCover Claim Form that he signed on 23 July 2012.[10] He did not give any plausible explanation as to why, in that document, his wife “Brenda” was described as the OH&S officer for Allover.[11] The probabilities are that that piece of information was totally made up in order to complete a document which he had signed and had to get past an insurer if WorkCover payments were to be accessed. On all the evidence, the likelihood is that his employer, that is his company Allover, had no such OH&S officer by any name let alone his wife’s.
[10]Exhibit 5
[11]T63-64
11 A witness statement from her, filed pursuant to the orders made by the Directions Judge in the Self Represented Litigants List regarding all lay witnesses on both sides, makes no reference to her being the OH&S officer. This was no more than an attempt to deceive if any enquiry an insurer could well make after receiving a WorkCover claim was to eventuate.
12 In fact she did not give oral evidence as the plaintiff asked on the third morning of the trial if she could be excused for health reasons from attending for cross-examination. I granted his request so her undated statement was tendered.[12]
[12]Exhibit F
13 He was also asked about an entry in that document about where he had been injured on 9 July 2012. He had signed off on a version that said something completely different from the allegations before me about an injury at the JMC site in Maidstone. What was recorded for the insurer was “Front of factory of site 1-5 Baretta Rd. Ravenall”.[13] This is a completely different suburb that is some kilometres away from Maidstone. Even if the suburb was wrong, it is clear the JMC site contained no factory premises, it was a residential development.
[13]Exhibit 5
14 When asked why this information would have been conveyed to the insurer, he attempted to get around that difficult question by saying his wife had provided the handwritten information. He had telephoned his wife and somehow he had given her a mistaken location as to where he was injured because he “was so upset and stressed out”.[14] This evidence was improbable. I do not accept it.
[14]T111-113
15 On the same theme he swore an affidavit back in October 2014 when he was represented by solicitors, Nowicki Carbone. This was more than two years after he signed the WorkCover Claim Form on 23 July 2012. The affidavit stated in paragraph 19 that on 9 July 2012, he was injured when “… delivering paint to another contractor at a factory in Ravenhall”.[15] His attempt in the witness box to somehow place the blame for this discrepancy on his legal representatives was unpersuasive to say the least.[16]
[15]Exhibit 6
[16]T114-116
16 He was challenged about other WorkCover claims he put in regarding alleged employment injuries while working for one or other of his various companies.[17] As well, he was cross-examined about just what work he has been engaged in since July 2012 for his family companies. On the question of written documents showing some entity described as “Allover Melbourne Painting”, which had hired equipment and been charged for it, he was also very vague and evasive.[18] These were just some of the topics on which he was less than frank and inconsistencies were obvious.
[17]Exhibit 7
[18]T199-201
17 As well as the inconsistency about the suburb and type of premises he was injured at on 9 July 2012, there were other significant differences in his sworn evidence. He previously swore in his 2014 affidavit at his solicitors that the drums of paint he was carrying at a factory in Ravenhall were being delivered by him to another contractor. These were 15-litre drums.[19] In court he said they were 20 litres and they were there for his own use when he was injured at Maidstone.[20] When asked about this discrepancy he said he told his lawyers they were 20-litre drums but the lawyers just put down 15 litres.[21] I do not accept this evidence. In any event, he still swore the affidavit as true and correct in which more than once he gave the size as 15 litres.
[19]Exhibit 6
[20]T176,191
[21]T190-191
18 It is informative to note that his original WorkCover Claim Form was signed by him on 23 July 2012, only two weeks after the alleged incident. In that form he described the size as 15 litres.[22] The probabilities are that, whatever the real circumstances if anything did happen at Maidstone, they were 15-litre containers he was handling and he has attempted to exaggerate the difficulty of the task by speaking of heavier weights.
[22]Exhibit 5
19 In a number of documents and from a number of witnesses a “Jack” was referred to in relation to representing the painters onsite. The probability is this was Mr Jack McCullem. Jack McCullem was a foreman the plaintiff said he appointed on behalf of Allover. Mr McCullem’s wages were paid by Allover. The JMC Safety Committee Inspection meeting minutes clearly recorded that this man was attending amongst a group of trade representatives as the painting representative.[23]
[23]Exhibit 8
20 The plaintiff denied any knowledge of Mr McCullem attending such meetings.[24] This was in spite of him saying he employed Mr McCullem, the plaintiff’s company Allover was the painting company onsite and the plaintiff said he himself was onsite most the time.[25] I found this evidence about really knowing nothing about Mr McCullem attending these meetings completely improbable. It was another attempt to explain away a difficult piece of evidence in a manner that demonstrated unreliability.
[24]T108
[25]T193-198
21 Most startling of all was a very serious allegation that came in at “the eleventh hour” as it were of the plaintiff’s case on the afternoon of the third day of the hearing. Throughout a Statement of Claim signed by senior counsel and a junior in June 2015, an Amended Statement of Claim similarly endorsed in February 2016 and then a Further Amended Statement of Claim also signed by counsel in March 2017, there was not a word of allegation about any JMC OH&S officer supposedly on alcohol or drugs. There was nothing in any of the witness statements served by the plaintiff on the order of the Directions Judge. There was nothing said about such an allegation in his lengthy affidavit sworn at his solicitors in October 2014.
22 Nothing was said by the plaintiff about this new allegation in his time in the witness box which went into a third day. When he called his son, Jeremy, he read into evidence his statement which was silent on the matter.[26] At the very end of examination-in-chief of his son, the plaintiff raised a question about alcohol and drugs at the site. His son nodded in agreement in the witness box and went on to say the OH&S officer was on alcohol and drugs.[27] When questioned further, it was obvious the witness was simply relying on rumours and could give no real evidence about this serious allegation at all.[28]
[26]Exhibit L
[27]T298-299
[28]T299-300
23 The witness then just kept shrugging his shoulders when pressed in cross-examination on this topic and others. He was evasive and not reliable. He appeared to be prepared to say things at times simply on the basis of what his father had said rather than any knowledge himself. His exact role in the painting company and the JMC job was left very vague. Incidentally, he did not say his mother was the company OH&S officer when asked about her involvement in spite of that being recorded in the WorkCover claim submitted to the insurer.[29]
[29]Exhibit 5
24 I gave the plaintiff an opportunity to explain to the Court why such a serious allegation had never been pleaded nor mentioned before and how it now surfaced at such a late stage. His gave no satisfactory explanation. In fact he then seemed to express some reluctance about bringing it to the Court’s attention.[30] I give the evidence about this unsubstantiated allegation no weight.
[30]T312-313
25 In the end I found the plaintiff to be a witness who could not be relied on in terms of his version about the circumstances in which he claimed he was injured on 9 July 2012 while at the JMC Maidstone site. He carried the burden of proof at all times. I am not satisfied that he was injured in the circumstances he described in his two statements or in his oral evidence.[31] It goes without saying that I am not satisfied there was any negligence or breach of any duty statutory or otherwise by JMC as pleaded in this case.
[31]Exhibits A and B
26 I will nevertheless direct a number of comments to other parts of the evidence.
27 No other witness or material corroborated the occurrence of the alleged incident at the JMC site in Maidstone on 9 July 2012. His wife’s statement took the matter no further. As stated already, his son was a witness who was unreliable and had no direct knowledge of the alleged incident.
28 Similarly, a Mr M McKinnon, who was an expert in the painting industry, had no knowledge of the incident. His evidence consisted of general statements about the industry but he had never visited the site. He did not even know what a Manitou lift was when taken to the equipment mentioned in minutes of site meetings with the various trades.[32] More to the point, he had never even seen the relevant contract documents. In particular, he was not aware of condition 11 which dealt with the subcontractor, Allover, contracting to attend to providing all plant and equipment and erecting any necessary scaffolding.[33] His evidence did not advance the plaintiff’s requirement to prove the incident and the circumstances relied on as against JMC.
[32]Exhibit 4
[33]Exhibit 3
29 The plaintiff also called Mr Brendan Sellman who worked on the JMC site. His written statement made no reference to the alleged incident.[34] He was an employee of Allover. His evidence was very vague. He provided some comments about the equipment and the lack of it in terms of lifting materials on site. He said he was working at the Maribyrnong site in Hampstead Road in the four weeks up to 9 July 2012. Apparently he equated Maribyrnong with Maidstone. He then recanted on what he had said about where he was in those four weeks and admitted that he really did not know where he was then.[35]
[34]Exhibit M
[35]T 333-335
30 At some stage at the JMC site, Mr Sellman said an Ally-Mac hoist was paid for by Igor Krojs. Also, Mr Sellman had done a course in order to operate the hoist. No evidence about these matters had been given by the plaintiff nor by his son. Mr Sellman gave no reliable evidence that corroborated the incident relied on. His testimony really amounted to little more than some general statements that were not accompanied by any precise dates. He did not advance the plaintiff’s case in terms of proving the injury in the circumstances alleged to have occurred on 9 July 2012.
31 The plaintiff also called Mr Steve Saykoroski, who provided a written statement dated 3 April 2018.[36] It contained a reference to Igor driving him to a Ballarat Road site on 11 July 2012 and some observations on that date. He also described the tins of paint at the JMC site being 15 litres in size. His statement said “things changed after 2012” at the site, but there was nothing provided in the statement or his oral testimony about what that comment meant.
[36]Exhibit N
32 He said he recalled an occasion on 11 July 2012 when the plaintiff was in pain but as to the subject incident on 9 July 2012, he had nothing specific to say. He also worked at the Ravenhall site for Allover and that was when he recalled the plaintiff being in pain. He was first asked to remember these events some six years later and that was in April 2018. His evidence was very non-specific.
33 It was obvious he had no real reason for recollecting events on 11 July 2012 but nevertheless he had signed off on that in this statement. I enquired how it was he could now remember that had been moved to a Ballarat Road site “three days prior to his injury” as set out in his statement but really he just could not say. Then he eventually agreed that the plaintiff had told him this.[37] His evidence was vague and unpersuasive. In the end he had no knowledge of the incident that is before the Court and did not advance the matter.
[37]T346-347
34 The plaintiff closed his case although two witnesses for the defence had already been interposed due to delays between the plaintiff’s witnesses. The first was Ms Michelle Foenander but her evidence basically only consisted of the five contractual agreements between JMC and Allover.
35 The second was the JMC foreman on site, Mr John De Battista.[38] He was generally concerned with the quality of the various trades’ work. When he was involved with painters or painting he dealt with “Jack” who was essentially the foreman for the subcontract painters.[39] His experience was that on such sites the movement of paint was entirely a matter for the subcontract painters.[40] He said nothing about the alleged incident or injury on 9 July 2012.
[38]Exhibit 13
[39]T318
[40]T319
36 After the plaintiff’s case closed on the fourth hearing day, several witnesses were then called for JMC. Mr Gerard Higgins gave evidence and he is the managing director of a painting company that employs some 1200 people across Australia working on about 350 projects per month. His evidence was contained in two emails.[41] In essence, he stated for a three-storey building such as shown in the exhibit E photographs the plaintiff tendered, the painters manually carried the tins of paint up to the job. He was an impressive, informed witness who made several concessions about matters he had no personal knowledge of. Nevertheless I found him both accurate and reliable but he had no personal knowledge of the JMC job in Maidstone.
[41]Exhibit 15
37 Mr Dale Barton has been a project manager for some 25 years and was employed at the JMC site in Maidstone in that role which also included site management and foreman tasks. His evidence was given in a comprehensive statement dated 10 May 2018.[42] In the industry the painters are responsible to devise their own system to move their materials. He said the site involved buildings between three and five storeys high and there was an external goods lift (an Ali-Mac) for heavy materials for the five-storey buildings. There was also a telehandler (Manitou) operated by a forklift available on site that could service three storeys.[43]
[42]Exhibit 16
[43]T384
38 He finished up in 2014 at the site and he had no knowledge of any accident or injury to the plaintiff or complaint from him. He gave his evidence in a very straightforward manner and was a witness who appeared to be honest and reliable in regard to what he could remember. As with other witnesses, he threw no light at all on the occurrence of the alleged incident the plaintiff relies on.
39 Mr Abdul Darwish provided a statement dated 10 May 2018.[44] After starting at the JMC site, he was eventually promoted to a site manager role. His recollection was that painters attended to supply and delivery of paint to the painters. He did not have any dealings with Igor or his son. He recalled a painter called “Jack” seemed to be in charge of the painters and had a supervisory role regarding Igor’s painters. On the probabilities this is the same Jack McCullem employed by Allover and mentioned in minutes of Safety Committee Inspection meetings.[45]
[44]Exhibit 17
[45]Exhibit 8
40 Mr Darwish said nothing about any alleged incident or injury to the plaintiff at the site. He confirmed in an email dated 19 October 2012 to Igor Krojs that JMC were going to employ another contractor to complete the painting as Igor had informed JMC he was unable to fulfil the contracted works.
41 The final witness was the JMC managing director, Mr Martin Wagg. He provided two comprehensive and detailed witness statements dated 10 April 2018 and 4 May 2018.[46] He was the principal project manager on site. He pointed out how JMC had contracted with Allover who was to supply all labour, materials and equipment for the painting work. JMC also contracted with Allover for it to provide plant and equipment to carry out and complete the work.
[46]Exhibit 18
42 Some of these matters more particularly concern third-party legal issues between the defendant, JMC and Allover as third party than the plaintiff personally as an employee of Allover. Although, as the plaintiff himself said several times, he was “the sole boss of Allover”.[47] However, Mr Wagg’s evidence did bear on many factual issues in this proceeding including what the plaintiff had sworn to regarding who was responsible onsite for delivery of paint, the system of work, hiring and use of lifting and other equipment, as well as other matters relevant to the allegations on liability.
[47]T356
43 Mr Wagg said that the delivery of paint tins was at all times under the control and responsibility of Allover as subcontract painter. Mr Wagg was unaware of any alleged incident or injury to the plaintiff at the site.
44 In the plaintiff’s witness statement he alleged he was at 15 Eucalyptus Drive when the incident and injury took place.[48] Although, as already referred to, his WorkCover claim as well as his 2014 affidavit stated it was at a different site altogether, being a factory in Ravenhall.[49] Also the plaintiff tendered exhibit B which was photographs of 48 Eucalyptus Drive. Mr Wagg said 15 Eucalyptus Drive involved buildings with a ground floor, first and second floors. But 48 Eucalyptus Drive he said in fact had five levels, being ground and four others. His recollection was clear enough to be able to say that the photographs did not depict the top level at 48 due to the angle it was taken on. He stated that at 48 Eucalyptus Drive, an Ali-Mac lift was provided.
[48]Exhibit A
[49]Exhibit 5 and 6
45 Throughout his evidence Mr Wagg demonstrated a very detailed and comprehensive knowledge of all that was going on at the site by way of the various buildings, the trades involved, systems of work and the equipment provided.
46 Where his evidence was inconsistent with that of the plaintiff regarding the height of the buildings, the site meetings and minutes thereof, the various systems of delivery of materials and access equipment used including hoists and lifts, I prefer the evidence of Mr Wagg. To take but two examples: Firstly, I prefer the evidence of Mr Wagg to the plaintiff’s in relation to the 3 July 2012 site meeting where the availability of a Manitou lift that could be booked for use by trades was referred to.[50] Secondly, he also gave evidence that a boom had been backcharged to Allover for its use after Allover had apparently requested one. These matters were at odds with what the plaintiff had said on these topics.
[50]Exhibit 4
47 Both in his two witness statements and oral testimony, other than the plaintiff, Mr Wagg was by far the most lengthy witness called by either side. Mr Wagg’s knowledge of the construction site and the relevant day-to-day happenings there exceeded that of any other witness. The plaintiff cross-examined him at length. I found Mr Wagg’s evidence accurate and consistent. He was reliable and informed. He had no knowledge of any incident occurring at the site in which the plaintiff had allegedly suffered injury.
48 The plaintiff cross-examined all of the defendant’s witnesses but no mention was made of or questions directed to the suggestion about alcohol or drugs at the site.
49 By consent a brief written witness statement of Mr Claude Santilli was tendered and read into the transcript.[51] He was the manitou driver on site for the purpose of handling heavy items. If asked by painters to move paint he would have done so. He said nothing about the alleged incident.
[51]Exhibit 19
50 Only a few brief comments need to be directed to other pieces of evidence. Mr Mark Andrew from Dorhmann Consulting was the engineer who interviewed the plaintiff at his solicitor’s office on 24 May 2016. On that occasion the plaintiff “gave clear and considered answers” that included being injured in an incident at a contractor’s factory in Ravenhall.[52] As with the medical evidence, the report of Mr Andrew provides no corroboration of the facts said to have taken place at Maidstone on 9 July 2012 entirely dependent as they are on the history given by a witness who I do not accept.
[52]Exhibit J
51 There is an absence of any other corroborative, credible evidence about this alleged incident which I am not satisfied has been proved to have occurred. If I am wrong on that, then it needs to be said that I am not satisfied that any such alleged incident was caused by the negligence, breach of statutory regulations or of the Wrongs Act duty owed by the defendant.
52 After considering all the material and rereading the entirety of the transcript and almost forty exhibits, I am not satisfied the plaintiff has proved his case. Just so there is no doubt about it in this case of a self-represented litigant, I make it clear I do not accept the plaintiff’s evidence as accurate or reliable. In particular I do not accept his evidence that he was injured at the JMC site on 9 July 2012 in the circumstances pleaded and relied on.
53 Accordingly, the claim is dismissed.
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