Zaya v Manidis Roberts Pty Ltd v UGL Infrastructure Pty Ltd and Anor (No 2)

Case •

[2019] NSWSC 515

•

08 May 2019

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Zaya v Manidis Roberts Pty Ltd v UGL Infrastructure Pty Ltd and Anor (No 2) [2019] NSWSC 515
Hearing dates: 19, 20, 21, 22, 23 March 2018; 30 April; 2 May 2018
Date of orders: 08 May 2019
Decision date: 08 May 2019
Jurisdiction:Common Law
Before: Campbell J
Decision:

See para [199]

Catchwords:

NEGLIGENCE – Employers liability – content of duty of care – no issue of principle

 

NEGLIGENCE – Duty of care – non-delegable duty – whether principal has duty to independent contractor – whether common law imposes duty of care on principals for benefit of independent contractors – accepted if plaintiff’s case made out it would have been caught by the entrepreneur’s duty arising from the creation of risk – plaintiff’s case not made out.

 

CIVIL LIABILITY – Risk – materialisation of inherent risk – whether risk of injury to plaintiff was an inherent risk as defined in the Act – found that risk of person falling from staircase cannot be avoided by the exercise of reasonable care and skill on the part of person responsible for its construction.

  EVIDENCE – Admissions – hearsay evidence - lack of contemporaneous records in support of plaintiff’s case – evidence of confrontation inconsistent with established facts – plaintiff’s account on factual issues generally unreliable.
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5R, 5S
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Law Reform (Miscellaneous Provisions) Act 1965, s 9
Workers Compensation Act 1987 (NSW), s 151
Work Health and Safety Act 2011 (NSW), s 267
Workplace Injury Management and Workers Compensation Act (NSW) 1998, s 321
Cases Cited: CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 466; [2013] NSWCA 49
Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839
Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177; [1961] HCA 3
Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357
Fox v Percy (2003) 2014 CLR 118; [2003] HCA 22
I&J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35
Morawski v State Rail Authority (1988) 14 NSWLR 374
Murray-Moore (New South Wales) Pty Ltd (1975) 132 CLR 336
O’Connor v Commissioner for Government Transport (1954) 100 CLR 225; [1954] HCA 11
Public Transport Commission of New South Wales v J
RTA v Dederer (2007) 234 CLR 330
Seage v State of New South Wales [2008] NSWCA 328
Southwest Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; (2017) 327 FLR 110
Stannus v Graham (1994) Aust. Torts Reports 81
Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16; [1986] HCA 1
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Wyong Shire Council v Shirt (1980) 146 CLR 40
Category:Principal judgment
Parties: Andrawos Zaya (Plaintiff)
Manidis Roberts Pty Ltd and UGL Infrastructure Pty Ltd t/as Energised Alliance (First Defendant)
Silver Raven Pty Ltd (Second Defendant)
Representation:

Counsel:
BJ Gross QC with V Jurisich (Plaintiff)
D Talintyre (First Defendant)
M Best (Second Defendant)

  Solicitors:
PK Simpson & Co (Plaintiff)
Yeldham Price O’Brien Lusk (First Defendant)
Sparke Helmore Lawyers (Second Defendant)
File Number(s): 2014/187218

Judgment

Introduction and context

  1. Mr Zaya claims damages for personal injury he suffered at work on 4 April 2012 when he fell down a staircase at a construction site at Marrickville. His main ongoing injury is claimed to be a Complex Regional Pain Syndrome (“CRPS”) rendering his dominant right arm effectively useless.

  2. The first defendant is a partnership or joint venture between two corporations trading as “Energised Alliance”. Energised Alliance was the head contractor for the project which involved the construction of a new electricity sub-station. Energised Alliance was the occupier of the site.

  3. The second defendant is Mr Zaya’s employer, Silver Raven Pty Ltd. The employer was contracted by Energised Alliance for the completion of all concreting works. These works included the placement of form work, the fixing of reinforcement steel, the pouring or pumping of the concrete, finishing or screeding the poured concrete and the eventual stripping of the formwork when the concrete was cured.

  4. The employer subcontracted the whole of this work to a company named PNT Formwork and Welding Pty Ltd (“PNT”), which is not a party to these proceedings. PNT’s performance of the subcontract involved further subcontracting, including to concrete pumping contractors.

  5. Mr Zaya was employed by the employer as its civil/construction works supervisor for the site. His main task was to supervise PNT’s employees in the performance of their subcontract. He was required to monitor PNT’s compliance with the plans and specifications supplied by Energised Alliance, and with the works timetable devised by the employer with the approval of Energised Alliance. Occasionally, he performed some of the physical work himself.

  6. Mr Zaya reported to his employer’s project manager, Mr Fahquar (referred to as Peter) Abunucerah who was onsite for a good part of most working days. There were other employees of the employer onsite as part of the employer’s crew, who Mr Zaya also supervised. One of these other employees was a Mr Patrick McElroy mentioned in the evidence but not called as a witness.

  7. Mr Roderik Valletta was Energised Alliance’s site supervisor. He was present onsite for the whole of the shift each day. He reported to a project engineer, who in turn reported to the project manager. These men were frequently on site, as required. Energised Alliance had other employees onsite performing other tasks under Mr Valletta’s supervision. In addition to the employer and PNT, there were other subcontractors working on site. To the extent necessary, Mr Valletta co-ordinated the activities of Energised Alliance employees and all sub-contractors on site. He acknowledged that liaising with contractors and sub-contractors was a big part of his role.

  8. Mr Valletta also had a responsibility for Energised Alliance’s obligations for site safety. He conducted site inductions, including that of Mr Zaya when he started, ran the pre-start meetings on a daily basis and convened and conducted tool-box meetings as required.

  9. All workers on the site on a given day were expected to attend the pre-start meetings. They were required to sign an attendance sheet. The agenda for these meetings set by Mr Valletta included updates on the day to day progress of the project, the work to be performed by various subcontractors that day and the goals to be achieved. Safety issues were also discussed including the occurrence of any accidents, incidents or near misses. All workers were reminded of their obligation in respect of safety onsite and of the necessity to observe the so called “U-take 5” protocol before commencing new tasks. This was essentially a simple risk assessment mechanism that each worker on the site was required to observe (Exhibit 1DG, p115).

  10. Tool-box meetings were a less regular occurrence. Issues concerning the project were able to be addressed in somewhat more detail on these occasions. Presumably to enhance worker interest, Mr Valletta sometimes made them social occasions involving a barbeque during the lunch break. Safety issues were also discussed at these meetings.

  11. Mr Valletta regarded site safety and compliance with safety procedures as a “lead role” of his. He was assisted in this by a safety officer employed by Energised Alliance, Mr Justin Kim. Mr Kim was not based on site. He was not called to give evidence. Mr Abunucerah had observed Mr Valletta speaking to workers on the site about safety issues including the need for workers to don required personal protection equipment appropriate to the task at hand. Any accidents, incidents and even near misses were required to be reported to Mr Valletta who would create the required records in respect of each such matter.

  12. The evidence demonstrates that the contract between Energised Alliance and the employer provided for inspection by, in practical terms, Mr Abunucerah and Energised Alliance’s Project Engineer to verify adequate completion of each structural stage of the works. The result of this inspection was recorded in a document entitled “Inspection and Test Plan” examples of which are contained in Exhibit 1DG, Energised Alliance’s liability documents. It is relevant to record that a checksheet was to be used as the “verifying document” for stripping formwork. However, Mr Abunucerah said in evidence that those procedures were applicable to stripping formwork from structural components. Mr Valletta had the authority to approve the performance of work, including formwork stripping, not affecting the structure of the building. Mr Abunucerah explained that in relation to staircases only the formwork supporting the underside of the staircase was regarded as structural (417.30-35T). Other formwork erected for the construction of staircases could be removed after the concrete was cured with the approval of Energised Alliance’s site supervisor, Mr Valletta. The stripping of this formwork did not require the completion of an inspection checksheet by engineers for the respective parties. Mr Abunucerah (Exhibit 2DC, [18]-[20]) said he and Mr Zaya had approached Mr Valletta 3 weeks after the stairs were poured for permission to remove the non-structural formwork from Staircase 3 to improve its effiency as a means of access. He states that Mr Valletta refused this permission preferring to wait 28 days. He has told them not to strip any formwork until he gave them further notification. In cross-examination, Mr Abunucerah agreed that he could not say whether according to Energised Alliance systems Mr Valletta would need to obtain approval from the project engineer (427.35-40T).

  13. The Inspection and Test Plan for Staircase 3 is at Exhibit 1DG, tab 10, pp 102-3. The notations “H” and “W” are significant. “H” connotes a hold point requiring approval from Energised Alliance before the employer could take the described step. “W” is a witness point requiring inspection by Energised Alliance before the step is taken (416.15-417.15T). According to Mr Abunucerah the hold point for stripping formwork from staircases applied to the underside only.

The plaintiff’s case

  1. Mr Zaya, who previously worked for the employer as a concreter, commenced, in the supervisor’s position on or about 7 November 2011 (Exhibit 1DH). By then he had had extensive experience in concreting work. As I have already said, he was inducted onto the Marrickville site by Mr Valletta (Exhibit 1DG, p110 ff).

  2. By 4 April 2012 work on the site had progressed to a stage where concrete construction was well advanced in the substation basement. The suspended concrete-slab ground floor of the substation had been constructed over the below-ground basement.

  3. Access to the basement from ground level was provided by 2 staircases referred to in the plans (Exhibit 1DG at Tab 7) as stair 1 and stair 3 respectively. My understanding of the plans is that stair 2 was a lower part of stair 1 and stair 4 was a shorter flight internal to the basement for access to services which were to be installed there. Nothing turns on this. It is common ground between the parties that Mr Zaya (“allegedly” from Energised Alliance’s point of view) fell from Staircase 3. This staircase consisted of a top landing at ground level and two flights descending to the basement floor separated by a landing at about the middle of the descent. This staircase had been poured on or about 27 February 2012 (418.47T). Staircase 1 had been poured somewhat earlier. No completed “Inspection Check Sheet” was tendered for either staircase: cf Exhibit 1DG, pp 104 – 109.

  4. There is a very significant issue of fact about whether, and if so to what extent, the formwork had been stripped from staircase 3 prior to Mr Zaya’s fall. Mr Zaya says, and Energised Alliance strongly disputes, that all but two riser shutters had been removed from the staircase. These two shutters were in the lower of the two flights after the middle landing. Mr Zaya says their presence was not obvious to him as he descended the staircase, ahead of Mr Abunucerah and Mr McElroy to conduct an inspection pertaining to future work. The riser shutters were constructed of a length of plywood sheeting held in place against the concrete face of the riser of a step by two lengths of four by two timber fixed in a horizontal plane at the top and bottom of the plywood. These were fixed in place by attachment to the lateral or longitudinal formwork for the side of the staircase. According to Mr Abunucerah the effect of the shutters was the shortening of the length of the going of the affected steps causing Mr Zaya to “tumble over” and fall down the remaining stairs to the ground below (Exhibit 2DC, [12]-[13]). I took Mr Zaya’s reference to him losing his balance as meaning losing or missing his footing (Exhibit C, [67]).

  5. Mr Zaya says that the staircase had been left in this condition is the fault of Mr Valletta. Mr Zaya’s case is that without reference to or consultation with him as the employer’s site supervisor Mr Valletta had, on 3 April 2012, first directed PNT workers to commence stripping the formwork from the surface of the steps, and secondly directed them to cease before the task was complete, leaving the two riser shutters in place.

  6. Mr Zaya alleges (Amended Statement of Claim, 19 March 2018 [12]):

The presence of timber formwork on only two steps towards the bottom of the stairway created an unreasonable risk of injury through persons descending the stairs, failing to detect in sufficient time the fact that timber formwork was on only two steps, losing their balance on the two steps which still had timber formwork on them and falling.

  1. Mr Valletta’s conduct was said to have created this risk of injury by reference to a number of considerations. First, the failure to strip the formwork from the whole staircase was contrary to standard industry practice which required formwork to be stripped from staircases in a single operation. Secondly, and this being so, absent specific warning, workers using the stairs would assume that the surface was completely clear of formwork and therefore free of unexpected trip hazards; and safe to use. Thirdly, the hazard was the unexpected shortening of the going. Experienced concreters were able to negotiate formwork encased staircases without difficulty because they are aware of the hazard and thereby equipped to exercise due care for their own safety (eg 450.1-20T). Where all shutters are in place the effective length of the going remains standard for the length of the flight.

The issues

  1. Energised Alliance does not admit that the accident happened at all. It also strenuously disputes the necessary integers of Mr Zaya’s case in negligence at the factual level. It denies that Mr Valletta directed either the stripping of the formwork or its cessation prior to its completion. Energised Alliance’s case is that no formwork whatsoever had been stripped from the staircase on or before 4 April 2012. Indeed, its case is that the stripping of the formwork was only scheduled after 4 April 2012.

  2. Energised Alliance also joins issue with Mr Zaya on the scope of the duty of care it owed him as the employee of an independent contractor. It says its duty is strictly limited as discussed by the High Court of Australia in Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 and Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16; [1986] HCA 1. It also pleads contributory negligence on the part of Mr Zaya. It strongly contests the nature and extent of Mr Zaya’s injuries and disabilities. In particular it denies that he suffers CRPS.

  3. The employer admits its undoubted non-delegable duty of care owed to Mr Zaya as its employee but contends that it was not negligent. If it was negligent, the employer also relies upon contributory negligence. It does not dispute the occurrence of the fall but does dispute the nature and extent of Mr Zaya’s injuries and disabilities. I observe, however, there is conclusive evidence under s 321 Workplace Injury Management and Workers Compensation Act 1998 (NSW) against the employer that the degree of whole person impairment resulting from the injuries received in the fall is at least 15%. Indeed the assessment by the approved medical specialist, Dr J B Stephenson, Orthopaedic Surgeon, in respect of Mr Zaya’s condition of CRPS as diagnosed by him was 49% (Exhibit A, p107).

  4. Energised Alliance and the employer cross-claim against each other for statutory contribution to any damages payable under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The employer also seeks indemnity from Energised Alliance for compensation paid to, for and on behalf of Mr Zaya under the Workers Compensation Act 1987 (NSW), under s 151Z(1)(d) of that Act.

Did Mr Zaya fall from staircase 3

  1. I have no difficulty accepting that Mr Zaya fell down the lower flight of stairs on staircase 3 around 3 p.m. on 4 April 2012. His account is corroborated by Mr Mr Abunucerah whose evidence in this regard I also accept. Mr Abunucerah was an eyewitness following Mr Zaya down the stairs to plan further work to be carried out in the basement. I also accept that Mr Abunucerah reported the injury in accordance with Energised Alliance’s requirements to Mr Valletta that afternoon (421.45T; 442.20T; 448.15-40T). I prefer his account to Mr Valletta’s account that the injury was not reported until 5 April 2012.

  2. Moreover, Mr Zaya attended a GP in the medical practice at IMMEX Green Square, which he usually attended, on 5 April 2012 consulting Dr Abdul Mohammed. He gave a history of slipping and falling down the stairs injuring his lower back and right hand at work on 4 April 2012 (Exhibit F; p. 23). Dr Mohammed provided a WorkCover NSW Medical Certificate bearing date 5 April 2012 and certifying that Mr Zaya suffered from acute lower back pain and soft tissue injury to his right hand. He was prescribed the anti-inflammatory drug Voltaren and referred for physiotherapy. He was to be reviewed on 13 April 2012 (Exhibit F; p. 33). Dr Mohammed certified Mr Zaya as fit for suitable duties from 5 April 2012.

  3. The position of Energised Alliance was carefully framed in written submissions in the following way:

… [Energised Alliance] cannot and does not admit that any fall occurred on 4 April 2012 or at all but was in no position to put to Zaya that it did not occur. (Outline Submissions p. 3 [13]).

This in context should not be taken as a direct traversal, as it were, of the allegation. But I accept that Mr Zaya has thus been put to proof.

  1. The circumstances relied upon as casting “doubt” on “the fact of the fall” are numerous. However, they seem to start with the proposition that nobody employed by Energised Alliance witnessed any fall. I interpolate that no one employed by Energised Alliance was said to have been present in the basement when the fall occurred by anybody. There is no reason why anyone employed by Energised Alliance should have been present in the basement then. And there is an issue between Mr Valletta and Mr Abunucerah as to when the fall was first reported to Mr Valletta on behalf of Energised Alliance. It must be said that in evidence, Mr Valletta made no bones about his suspicion that no fall occurred (365.20-40T), and his adamance that the fall was not reported until the following day (360.25-40T; 369.1-10T) which he seemed to regard as sufficient justification for his suspicion.

  2. Other, perhaps more objective circumstances relied on by Energised Alliance include the failure of Mr Zaya to call Mr McElroy to corroborate his and Mr Abunucerah’s evidence. It was submitted that a Jones v Dunkel inference should be drawn in that regard. Having accepted the evidence of Mr Zaya and Mr Abunucerah in this respect in preference to Mr Valletta’s suspicions no possible Jones v Dunkel inference arises for consideration. I accept the direct testimony of Mr Zaya and Mr Abunucerah. My satisfaction on the balance of probabilities with their account does not depend in any way upon any inferential reasoning process.

  1. It is said, however, that Mr Abunucerah and Mr McElroy apparently attended the pre-start meeting on 5 April, but must have failed to mention any injury because it is not recorded (Exhibit 1DG; p. 124). This inference depends upon the answers recorded at questions 2 and 5. Question 2 is: “Was it a safe shift yesterday?” And question 5 is: “Have we got any crew members that are recovering from injuries/restricted”. The answer to question 2 was, “Yes – U-Take 5’s done” (sic); and to question 5, “No”. The difficulty however with acceptance of Energised Alliance’s submission about this is that Mr Valletta made clear in evidence that he refused to record the report of Mr Zaya’s injuries when reported to him by Mr Abunucerah because he did not believe the injury had occurred. This doubt was based upon his knowledge that Mr Zaya had suffered a previous back injury in July 2011, and what he regarded as the late report on 5 April. The former reason is somewhat illogical: a worker may suffer a second injury; and the latter, inconsistent with my preference for Mr Abunucerah’s evidence about when he first reported Mr Zaya’s fall to Mr Valletta. The probabilities are that had it been mentioned at the pre-start meeting he would have declined to record it on his notes of the meeting (365.20-40T; 366.10-15).

  2. It was also put that there is “doubt as to whether Mr Zaya was at work” on 4 April 2012. His name and signature do not appear on the pre-start meeting notes (Exhibit 1DG p. 124). Although his name appears on the Attendance Registrar (Exhibit 1DG p. 142), the entry is unsigned and the column for insertion of his employer’s name is left blank. However, he is shown as having arrived at 7 am, and as leaving at 4 pm. It’s also obvious that in the first column each worker prints his or her own name. Some emphasis was placed upon the consideration that in cross-examination (150.10 – 151.6T), Mr Zaya was unable to say why the “signature” and “company” columns had not been filled in and he was not “a hundred percent sure” that the handwriting of the completed details was his. But I am satisfied that on balance the handwriting is his. The handwriting at line 5 for his attendance on 2 April 2012 looks very similar to that on 4 April as does line 7 on 3 April 2012. He was clearly absent on 5 April 2012 when he saw Dr Mohammed and his name does not appear on the attendance register at all.

  3. Finally it’s said that there is some doubt about whether Mr McElroy was a witness because he is not nominated as such on the incident report completed by Mr Abunucerah (Exhibit 1DG, p. 144). Only Mr Abunucerah’s name is listed as a witness and in the narrative of the incident (Exhibit 1DG, p. 145). Mr Abunucerah refers to only Mr Zaya “and myself” accessing the basement. However, in his statement, (Exhibit 2DC), Mr Abunucerah referred to Mr Zaya, Mr McElroy and himself “going downstairs to inspect the section in the basement” ([12]). It was expressly put in cross-examination on behalf of Energised Alliance that Mr McElroy was with Mr Abunucerah when he and Mr Zaya were walking down the stairs (439.25T). Whatever doubt legitimately arises out of the incident report form, I am satisfied on the balance of probabilities that Mr McElroy was present.

  4. For these reasons I find that Mr Zaya injured himself when he fell from staircase 3 at around 3 p.m. on 4 April 2012 in the course of his employment with the employer.

The state of the formwork on 4 April 2012

  1. A central question of fact going to the liability of each of the defendants is what was the state of the formwork on staircase 3 on the afternoon of 4 April 2012. Unless I am actually satisfied on the balance of probabilities that the riser shutters had been stripped from all but the two steps complained of by Mr Zaya on the lower flight of the staircase, it is difficult to see how any question of negligence of either defendant arises. That is not to say that either or both would necessarily be negligent were I satisfied that Mr Zaya had established these facts. Rather, I am of the view that this is what might be referred to as an indispensable primary fact for Mr Zaya’s case on negligence. I say this because it is common ground that experienced concrete-workers are able to safely negotiate fully formed-up staircases by exercising due care for their own safety, and commonly do so. I infer that due care essentially consists of keeping a proper lookout as is necessary for anyone descending any stairs. As I have said already the proffered explanation for Mr Zaya’s fall is not that he failed to keep a proper lookout, or that he descended the staircase, as he did, without availing himself of the temporary handrail affixed on the open side of the staircase. Rather, the explanation is said to be the unexpected presence of the protruding riser shutters on the face of two steps on the lower flight. These riser shutters (it may be put in various ways) broke Mr Zaya’s gait causing him to lose balance, or lose his footing, or slip and fall down the stairs. It is unnecessary to attempt to be too precise about the mechanism of Mr Zaya’s fall. Falls by their nature tend to be sudden, unexpected and due to the interaction of competing laws of physics. The person who has fallen is generally unable to give a clear and comprehensive account of what happened beyond simply saying they slipped, tripped or stumbled: Morawski v State Rail Authority (1988) 14 NSWLR 374 at 386B-C. As I have said, these simple statements explain part only of something more complex in a bio-mechanical sense.

Mr Zaya’s evidence

  1. In his second evidentiary statement (Exhibit C, 14 March 2018) ([51] – [87]), Mr Zaya said that Mr Abunucerah came to him when he was in the lunch room and asked him to accompany Mr Abunucerah to the basement to discuss further work. Walking towards the access stairs they came across Mr McElroy who was also directed to join them. Mr Zaya said as they approached the stairs it looked as though “all the formwork on the stairs had already been removed, as usually happens”. I interpolate he was of the view that by the date of his accident, the concrete would have acquired its “desired strength”. It was usual practice to remove all of the formwork at the one time. On this staircase that work would take no more than two hours, according to Mr Zaya and Mr Valletta agreed.

  2. Mr Zaya did say (Exhibit C [55]) that the temporary timber handrail was still in place. As it appeared all of the formwork had been removed it was unnecessary to use it. From the appearance of the upper flight of the staircase he “thought that all of the timber formwork had already been removed so it was easy to go down the stairs”. As he crossed the mid-landing and approached the second flight of stairs he “could not see any timber on the stairs”. He was not expecting there would be timber on the stairs because all of the formwork “is removed at the one time, with nothing being left on the stairs” (Exhibit C [66]). He then said (Exhibit C [67]):

I began to walk from the landing down the second stage of the stairs. My foot landed on timber which was across the stairs just below the half-way landing. I lost my balance and I fell.

When I fell I ended up landing on the basement floor. I went the whole of the rest of the distance down the stairs.

When I got up from the basement floor I was in pain. [Mr Abunucerah] and [Mr McElroy] were holding me in order to assist me.

When he looked up the stairs, he noticed two riser-shutters “on each of the first two stairs after you step off the half-way landing”. He said that Mr Abunucerah remarked “how come they stripped and just left two?” And “what a stupid thing to do” (Exhibit C [71]). Mr Zaya said that Mr Abunucerah and Mr McElroy assisted him up the stairs and then returned to remove the remaining timber from the two steps.

  1. Mr Zaya also said that he had not seen any of the PNT form workers on site that day. This is an additional factor which made him assume that the stairs must have been stripped. Given that he was the employer’s site supervisor responsible, among other things, for supervising the employer’s sub-contractor, PNT, when on site, it is surprising that he would have been unaware of whether, had they commenced to strip the formwork, they had completed the task before finishing up on 3 April 2012, or, for that matter 4 April 2012. Exhibit 1DG, p. 141 shows that there were eight PNT workers on site on 3 April 2012 including the “owner” of the business, Phillip (151.15-30T). Five of those workers had signed out of the site at 3 00 pm. Of the three remaining, one had signed off at 3 15 pm and two others had signed out at 3:30 pm. Mr Zaya had not signed out until 4:30 and Mr Abunucerah at the same time. Again it seems odd that Mr Zaya would not have known what task the sub-contractors he was required to supervise had been performing prior to finishing up for the day. Contrary to his evidence, there were four PNT workers on site on 4 April 2012, including Phillip, all of whom worked between 7 a.m. and 3:30 pm.

  2. In cross-examination, Mr Zaya agreed, contrary to his statement that when they approached the top of the staircase to enter the basement the vertical formwork on the open right hand side of the stairs was in place (187.5T) and that this formwork ran “all the way down” (187.30T). He did not agree that the riser shutters were invariably removed first (188.15T). He did agree, however, that because the side formwork was in place “you couldn’t know whether there were riser shutters still in place or not” (189.15T). In these circumstances, it was necessary to keep a lookout for the riser shutters as one descended. Any riser shutters still in place could be negotiated carefully (189.30T). As he commenced his descent he could see the formwork on the right-hand side and its timber braces (at 190.20T). I interpolate that the temporary handrail was also affixed to the formwork. But he did not know “whether there were riser shutters in the face of the stairs or not” (190.25T).

Mr Abunucerah’s evidence

  1. As I have said, Mr Abunucerah’s evidence is partly contained in Exhibit 2DC, a statement signed by him on 7 March 2016. He said that Mr Zaya, who was in front of him descending the stairs, “probably tumbled over”. He and Mr McElroy picked Mr Zaya up and walked him out of the basement using the same stairs. Mr Abunucerah said (at [13]), “As we walked up the stairs the claimant was slightly limping and Patrick and I had to assist him. On our way out of the basement … I noticed the formwork was still in place on the stairs”. It is difficult to understand why he would not have noticed this on the descent.

  2. I interpolate that Mr Abunucerah says that he, Mr Zaya, and Mr McElroy reported the accident to Mr Valletta straightaway after exiting the basement, on the same day (para. [14]). Mr Valletta was belligerent about their report when it was made. Mr Abunucerah also said (at [20]) that Mr Zaya “[was] fully aware that formwork was in place at the time of injury”. Mr Abunucerah also said in his statement that “at the time of injury there was a temporary handrail down the side of the steps that was secured to the stairs formwork” (at [21], iii (p 5)).

  3. (At [21], xii (p 8)) Mr Abunucerah said:

“I … have no recollection of the removal of the formwork having been interrupted by Energise Alliance. The claimant would therefore have been fully aware at the time of the incident that the formwork was still in place”.

From this, there is nothing to suggest that only two riser shutters were in place when Mr Zaya fell.

  1. As I have said, if there were only two of them, it is a little strange that Mr Abunucerah did not notice the riser shutters on the steps until his ascent out of the basement. After all, he and Mr McElroy must have walked over them to go to Mr Zaya’s assistance. Annexure B to his statement (MFI 8) is a “plan” and “elevation” sketch depicting riser shutters on stairs. The elevation shows a riser shutter on two steps. This suggest, taken alone that only 2 riser shutters were in place as Mr Zaya had said. But when cross-examined Mr ASbunucerah that what he had drawn on MFI 8 “was as a sample”, I understood only (448.5-10T). From this one would be reluctant to infer that he was attempting to depict what he noticed about the number of riser shutters in place on the staircase on 4 April 2012. In any event, the “plan” drawing depicts one riser shutter only, also said to be a “sample”.

  2. Mr Abunucerah gave evidence of a conversation with Mr Valletta in late March 2012 where he requested permission to strip the formwork because it was a trip hazard. At this stage, staircase 1 was not available for use because the suspended slab on the ground floor could not be used as a means of passage to access that staircase as it was in the curing phase (212.20–45T, Mr Zaya; 285.10-35, Mr Valletta). Mr Abunucerah said Mr Valletta (who denies this conversation occurred) refused permission because he remained concerned about the quality of the formwork (419.10-25T). As at the day of that conversation the whole of the formwork remained in position (420.5T). Mr Zaya had no recollection of being involved in this conversation, although he did not deny it (220.15-221.15T).

  3. When asked about his observations of the riser shutters recorded in Exhibit 2DC in further evidence in chief, Mr Abunucerah explained that there were two steps out of the lower flight of stairs on staircase 3 that still had riser shutters in position (421.15T). He said, “There was no formwork in position when walking down the stairs normally” (422.25T).

  4. When asked what Mr Zaya had said to him about how he came to fall, Mr Abunucerah said (423.30T):

That it was stripped but the formwork was still in position. Two of the formworks were still in position. Then I said something along the lines, “that’s pretty silly how come they’re still there”. Like if you strip the formwork you’re meant to strip the whole thing, not strip it partially yes.

When cross-examined about the content of the incident report completed by him (Exhibit 1DG, Tab 18) Mr Abunucerah agreed that he had said nothing about the stripping of the formwork being incomplete (444.45T). But he would not agree that the reason for that was “there was no formwork missing from the stairs” (445.5T). When cross-examined about his statements to the effect Mr Zaya was fully aware the formwork was in place at the time of the injury, Mr Abunucerah denied intending to convey that all of the formwork was still in place. He accepted the statement did not clearly state that “some only of the formwork was there” (451.35 - .40T).

  1. Mr Abunucerah accepted that his statement appeared to say that all the formwork was still in place, but that was because he was working on the assumption that he staircase had only been poured 21 days before the accident. Now he appreciated that the stairway had been poured 35 days prior to the accident he was of the view that the formwork should have been stripped (453.5-30T). He denied that at the time of the fall “all the formwork was still in place on those stairs” (454.5T). Like Mr Zaya, he did not accept that the side formwork was always stripped before the riser shutters (455.10T).

  2. When the cross-examination reached this stage it was necessary to adjourn the case for reasons that need not be rehearsed, and the cross-examination of Mr Abunucerah did not resume until 30 April 2018, some five weeks later. On the resumption of the cross-examination, Mr Abunucerah was asked about the necessary corrective action, presumably to obviate the hazard that materialised, he had described in the incident report form (Exhibit 1DG p. 145) in terms of “removal of formwork to staircase 3” by “11/04/12”. He was unable to explain why he “would include a corrective action of removing formwork if all the formwork had been removed already”. He said it could have been a reference to “the underside, maybe” (471.5T). And he could not recall having removed the riser shutters himself on 4 April 2012 (471.15 - .25T).

  3. He agreed that it was “fair to say” that he did not now remember what formwork was on the staircase on 4 April 2012. He speculated that two riser shutters could have been left on the staircase “if there is any other formwork to an adjoining structure that they’re using that kind of formwork as a support or as a bracket or adjoining; can happen”. But he could not remember any such necessity in April 2012 (474.15-20T). His recollection of staircase 3 was “vague” (474.30T). But he had no recollection of why only two riser shutters should be left in place on staircase 3 (475.20T).

  4. At the completion of cross-examination I asked this question (477.45T):

If it was the case that the stairs had been stripped of formwork other than two riser shutters in the lower portion of the stairs, is there any reason why you or the men who work for you couldn’t have stripped those two shutters yourself? That is to say, is there any reason why, if that that was all that was left in place, you’d have to call the form-workers back to do it?

Mr Abunucerah answered:

If, if it was like a, a bit like a trip hazard I would have taken it off myself, yes definitely. I don’t have to call the form-workers to come back and remove it. No.

Mr Valletta’s evidence

  1. Mr Valletta’s evidence in chief relating to the circumstances surrounding Mr Zaya’s injury consisted of the incorporation of an unsigned statement that had been taken from him in about 2013, but which he had only read in late 2017 when a copy was forwarded to him by the solicitors for Energised Alliance. Subject to some minor changes, Mr Valletta said that the statement was true and correct to the best of his recollection (270.25-40T; 271.40-45T). As I have already pointed out, Mr Valletta was not an eye-witness to Mr Zaya’s fall (which I have found occurred) and did not believe it had happened.

  2. The unsigned statement was admitted into evidence as Exhibit 1DG, Tab 21, p. 153ff. On Mr Valletta’s account, contrary to the evidence of Mr Abunucerah and Mr Zaya, the injury was not reported until 5 April 2012. Initially in cross-examination Mr Valletta appeared to accept that Mr Abunucerah might have reported the incident on 4 April 2012, but he could not recall it (297.5T). But later he became adamant that no such report had been made (360.25-40T; 364.25T; 369.5T). I prefer Mr Abunucerah’s evidence that he went with Mr Zaya and Mr McElroy straight to Mr Valletta’s office to report the accident on 4 April, more or less immediately after it occurred.

  3. Mr Valletta’s account recorded in his unsigned statement (Exhibit 1DG, Tab 21 [23] – [24], [27]) does not identify the staircase he said he inspected with Mr Abunucerah in terms of staircase 1 or staircase 3. Rather he refers to the north-western stairs. Some of this uncertainty was cleared up in cross-examination. It was established that the north-western staircase was the staircase upon which it is asserted that Mr Zaya fell (281.20T) and that that staircase was known as staircase no. 3 (282.50 – 283.1T). The general location of the staircase is depicted on the plan reproduced at Exhibit 1DG, Tab 14, p. 112 just below the upper most arrow depicted on that page viewed in landscape orientation. Some aspects of the construction of the staircase are depicted in photographs shown in Exhibit 2DB, 7 to 11 (283.20T).

  4. From his description of his subsequent inspection recorded in the unsigned statement one could be forgiven for thinking that he must have been speaking of staircase 1 because he mentions no formwork, not even the side formwork which Mr Zaya and Mr Abunucerah say was in place. ( At paragraph [24]) Mr Valletta states:

When I looked at the steps with [Mr Abunucerah], which was on the day, there was no objects in the way, no water ponding on the steps, nothing that could have caused [Mr Zaya’s] fall (sic).

(At Exhibit 1DG, p. 161 [27]) he also said:

[Mr Abunucerah] pointed down, I think it was after the second landing, going down. He just said he slipped. I can only go on what [Mr Abunucerah] said, if [Mr Abunucerah] told me he was behind him, then obviously he would have seen him fall.

  1. As I have said, from this I have formed the impression that Mr Valletta was inspecting a staircase which had already been stripped of all formwork given that he appeared to be looking for foreign objects, or puddles, that could have caused Mr Zaya to lose traction and fall. This is inconsistent with the other evidence that there was formwork on staircase 3 yet to be stripped involving the underside and side formwork, and a disputed number of riser shutters. It is important to bear in mind that I have pointed out already that staircase 1 was not able to be used to access the basement on 4 April 2018 because it was not permissible to cross the suspended ground floor slab which was in the curing phase.

  2. Mr Valletta could not remember the conversation with Mr Abunucerah about stripping the formwork from staircase 3 in March 2012. He acknowledged that staircase 3 had to be stripped at some stage, obviously. He agreed he would have had to have had a conversation with either Mr Abunucerah or Mr Zaya about that (294.35 - .40T), but he could not recall “the exact conversation” (295.4T). Mr Abunucerah’s account from what became Exhibit 2DC of the conversation about stripping the formwork from staircase 3 was put in detail to Mr Valletta who did not deny the conversation but could not recall it (295.10 – 296.5T). He could not recall that the formwork “surrounding staircase no. 3” remained in place (296.5-15T). He did say if there had been a complaint that the formwork was a safety hazard “there would have had to have been a hell of a reason for me not to strip it” (296.24T). He agreed that he could not recall when the formwork was stripped. I understand this to imply, and whether it was stripped before or after 4 April 2012.

  3. Mr Valletta said that it was permissible for people to walk on a staircase within “a couple of days after it had been poured and while the formwork was still in place” (322.10-15T).

Was there an admission by silence?

  1. In an earlier Judgment on 20 March 2018 (see [2018] NSWSC 388), I ruled that the evidence set out in paragraphs [73] to [77] of Exhibit C was admissible. The basis of its admissibility was that I was satisfied it would be open to me to find, if I accepted the evidence, that the material was an admission by conduct. When admitting the material, I said (at [26] – [28]):

It seems to me that this more flexible test is applicable in these civil proceedings. I understand that the basis of the rule, according to the work of text‑writers, to be that it is part of human experience that persons who are conscious of their liability for some civil wrong will often, on being accused of the wrong, remain silent or answer evasively, or act in other ways, which may, according to human experience, Lord Esher’s ordinary practice of mankind, and depending on all the circumstances, be treated as an admission, or where it is required, as corroboration. Silence may, in this context, imply assent to, or acquiescence in, what has been said, and the inference available to the tribunal of fact is that a denial would be expected by the party if the statement was false. It may be that silence is a sign of consciousness of civil liability.

It is manifest that evidence of this type will more easily pass through the gateway of admissibility in a civil rather than a criminal case. And although admissibility says nothing about reliability or, for that matter, acceptance or acceptability, I am of the view that the passage in para 73 to 77 is admissible as a potential admission, from which an inference could (not necessarily would) be drawn, in the plaintiff's case, assisting him in making good his case on liability against the first defendant.

It seems to me that if the evidence is true, then it is the very type of matter where one would have expected Mr Valletta to strongly deny the charge, given what may be taken to be the robustness which generally attends human relations on building sites.

I directed, however, that the evidence should be given orally rather than in the written form in which it appeared in Exhibit C. I made that decision for the reasons I gave at [29] – [33] of my earlier judgment which need not be recited here.

  1. In his evidence in chief on this topic (96.10 – 98.35T) Mr Zaya said that while Mr Abunucerah and Mr McElroy were removing the offending riser shutters immediately after his fall, he made his own way out of the basement and telephoned the PNT formworkers. It is to be remembered that on his account no PNT workers were on site that day. Having telephoned the number he had, the person who answered, who Mr Zaya did not identify, “gave me the person who was stripping the stairs, and I asked him, ‘Well, you don’t usually do that. Why did you leave the two stairs? Because I just fall down on them’”. In response he was told that while they were stripping the formwork, Mr Valletta came and asked them to stop the stripping work, block the area and leave for the day. The implication is that this occurred on 3 April 2012.

  2. Mr Zaya said he then went to Mr Valletta’s office. He gave this evidence (at 97.35T):

…. When I went in he saw me there, and he asked me, "What's wrong with you?" I told him I just fell down the stairs. He was reaction, excuse me, your Honour, he say, "Bullshit." After that I say, "I just talked to the formworkers. While yesterday they stripping the formwork, you came and stopped them from doing that and asked them to stop that, leave the area, [b]lock it, and just leave for the day." I ask him, "Did you ask the formworkers to do that?" He didn't answer whatsoever. He was sitting in one of these chairs, I remember the one twisted. (sic)

The chair that twisted was a swivel chair. Mr Zaya continued (97.50T):

When he didn’t answer, I told them, "Rod, because of those steps, I just fall down. That's what happened." I say, "Has that happened?" He didn't say nothing at all. He looked at me once again, but he again looked away, …

  1. Mr Zaya said that he went on to describe his accident to Mr Valletta and complained that he fell because of the presence of the two riser shutters which he could not see. He said Mr Valletta made no answer at all. Mr Zaya said that Mr Valletta could not look at him and turned his chair away. He said this was unusual behaviour (98.15T):

Usually if I tell him something and he's right, or he wants to say something, because he's in charge that's naturally he will say something and answer back, or order to do something, and that's normal.

He thought there may have been another male person in the room.

  1. In cross-examination about this topic (192.5 – 193.15T), Mr Zaya agreed that his accident happened at 3 pm and that he “would have” made the phone call to PNT “at least by ten past three” and that after the phone call he went and spoke to Mr Valletta on his own. Mr Abunucerah was not with him. He was “clear on that … 100%, yes” (192.30T). He agreed that his conversation with Mr Valletta took place before 3:30 pm.

  2. When challenged about PNT employees being on the site until 3:30 on 4 April 2012, Mr Zaya responded, “I can’t remember at all”. It was put that he had no reason to ring PNT because could have spoken to them on site. He said “I couldn’t see no-one there at all”. He rejected the suggestions that he did not speak to Mr Valletta and that the incident was not reported until 5 April 2012.

  3. He agreed that if PNT had left the site without completing the stripping work he would have expected the stairs to be blocked off or a warning sign to be erected (193.15T).

  4. Mr Valletta denied that any of this happened. He denied telling PNT formworkers to stop stripping the steps, block the area and leave. He denied ever telling formworkers on the Marrickville site to stop stripping stairs once they had commenced. He agreed ordinary practice was “once the stripping of formwork begins” it is completed and that “this was for safety reasons” (352.15 – 30T). When challenged about this topic in cross-examination (352.45 – 353.1T) he was firm in adhering to his evidence in chief.

Assessment of the evidence on the formwork issue

  1. There are two related important factual issues concerning this state of the formwork on 4 April 2012, as I have already indicated. I have found that Mr Zaya suffered injury when he fell from staircase 3 at about 3 p.m. on 4 April 2012. The first remaining issue is what was the state of the formwork when Mr Zaya fell. In particular, had all of the riser shutters, bar two on the flight of stairs below the mid-landing been removed. The second issue is if staircase 3 was in the condition contended for by Mr Zaya, was it left in that condition because of the intervention, and direction, of Mr Valletta that the PNT formworkers stop work, block the staircase and leave the site. I observe that the only evidence supporting a finding favourable to Mr Zaya on that second issue is his own oral testimony which is only capable of establishing the fact if I accept that Mr Valletta made an admission by conduct. Otherwise Mr Zaya’s evidence about the second issue is inadmissible hearsay.

  2. The resolution of these issues depends, in part, upon my assessment of the reliability of the testimony of Mr Zaya, Mr Abunucerah , and Mr Valletta. All of these lay witnesses were asked, as is not uncommon, to give evidence of events which occurred some 6 years before the trial, and to give that evidence in quite some detail. The recollection of all was obviously affected by the lapse of time. I have therefore attempted to be guided by objectively determinable facts, contemporaneous documents (where available) and the apparent logic of events where the facts reliably supported by those considerations appeared to conflict with the unaided recall of the lay witnesses.

  3. Energised Alliance argued that Mr Zaya’s account of the condition of the formwork on staircase 3 should not be accepted. It did not mount a frontal assault upon Mr Zaya’s credibility. Rather, Energised Alliance argued that Mr Zaya’s evidence was, in the end: not supported by Mr Abunucerah; contradicted by Mr Valletta; shown to be internally inconsistent; shown to be inconsistent with other evidence including such contemporaneous evidence as was available; and inconsistent with the apparent logic of events. Energised Alliance contends that the preferable finding according with the evidence is that no formwork had been stripped from the stairs prior to 3 p.m. on 4 April 2012.

  4. With respect, the plaintiff was not an easy witness to follow. He gave his evidence in English, which is not his first language, and his syntax and accent made his evidence, at times, a little hard to follow. However there was nothing about his demeanour which suggested in any way any overt dishonesty, and I emphasise he was not cross-examined on the basis that he was a dishonest witness. Nonetheless there were aspects of his evidence, including his evidence relevant to the putative admission by conduct which caused me to question the reliability of his account on these important factual issues.

  5. Turning to written material prepared for the case, I have set out, or summarised the relevant parts of Exhibit C above. Of course that statement was signed on 14 March 2018, only 5 days before the commencement of the trial. A full account is contained in it, of course. But its late composition in the shadow of the trial deprives it of self-evident weight. Paragraph 6 of Mr Zaya’s earlier Evidential Statement of 5 March 2018 (Exhibit 1 DJ), also prepared late in the day, says no more than:

I was accessing the staircase 3 to enter a basement when I slipped down concrete stairs.

There was no mention whatsoever of the unexpected presence of two remaining riser shutters as the cause of the fall; and nothing about the “admission”.

  1. In fairness the particulars of negligence at the foot of paragraph 6 of the original Statement of Claim filed on 24 June 2014 included the following:

(vi)   required and/or allowed the plaintiff to proceed down the concrete stairs with formwork still intact;

(vii)   failed to remove or strip the said formwork on the said stairs prior to requesting the plaintiff to proceed down the stairs;

(viii)   failed to remove timber formwork from the said stairs;

…

(xi)    failed to advise the plaintiff the said stairs had not been stripped of all formwork;

…

(xiv)   failed to provide stairs with adequate width for a safe foothold;

Leaving aside the consideration that it is not the function of particulars to aver material facts, particulars (xi) and (xiv) are capable of accommodating the case now advanced. In a letter dated 14 August 2013 (Exhibit 1DG, Tab 2, p. 6), before the commencement of proceedings, the plaintiff’s solicitors in answer to a question requesting particulars of how Mr Zaya’s injuries were caused by the negligence of the first defendant contained this statement:

We are instructed that the step on which our client slipped on was not properly stripped of its formwork (sic). It is alleged that the defendant failed to warn our client that the stairs were unsafe to walk on, failed to put up signs informing the unsafe nature of the stairs, failed to ensure the workplace was properly lit and failed to maintain a safe workplace.

Lack of appropriate lighting is no longer pressed as a particular of negligence. The phrase “not properly stripped” may be taken as broadly consistent with Mr Zaya’s key allegation about the riser shutters. But none of this material explicitly spells out Mr Zaya’s case about falling because of two remaining and unexpected riser shutters. It was not until the amended statement of claim filed in court on 19 March 2018 that Mr Zaya’s case is articulated in the form in which it was finally presented for determination.

  1. I have also reviewed the medical histories that Mr Zaya provided to the various doctors. I acknowledge of course that the purpose of a medical practitioner recording a history is different from the forensic task confronting a court. That the treating doctors in this case have, by and large, simply recorded that Mr Zaya fell on the steps says nothing about whether he fell because of the unexpected presence of two remaining riser shutters on the lower flight of staircase 3. On the other hand, when he saw Dr James Bodel for a medico-legal assessment on 24 March 2014 (Exhibit A, p. 66). Dr. Bodel recorded a history which may be taken to be broadly consistent with Mr Zaya’s case as finally articulated. Dr Bodel recorded that Mr Zaya stood on some timber he did not see. And Dr Schutz (Exhibit 1DA, p. 3) on 17 February 2015 recorded a history very like the account contained in Exhibit C. However giving full credence to these matters, it remains that there is no contemporaneous account provided by Mr Zaya that he fell because of the unexpected presence of two riser shutters. The earliest account broadly consistent, as I have said, is the letter providing particulars in August 2013, some sixteen months after the accident, and at a time when legal proceedings were clearly contemplated.

  2. I formed a generally favourable impression of Mr Abunucerah as a witness. He seemed to be trying his best to give an accurate account of relevant matters so far as his recollection would permit. However it is relevant when assessing Mr Abunucerah’s evidence that, apart from the initial incident report form (Exhibit 1DG, tab 18), the earliest written account made by Mr Abunucerah was Exhibit 2DC which was signed by him on 7 March 2016, nearly 4 years after the event. Moreover, during his evidence in chief he was given every opportunity to consider each paragraph of the statement separately and to detail any changes he wished to make. This process included providing him with access to 21 photographs Mr Abunucerah had taken during the project. He also made clear that he had had access to Exhibit C, Mr Zaya’s Evidentiary Statement of 14 March 2018, in preparation for giving evidence. I do not criticise counsel, but the process of eliciting his evidence in chief (see eg 406.22-35T) was that Mr Abunucerah was shown the photographs, referred to his statement and asked whether, having considered that material, “there are some matters that appear in your statement … that are not correct”. I think there is some force in the submission that the answer at 421.15T that there were two steps (only) that had plywood and formwork still in position may have been influenced by the contents of Mr Zaya’s Evidentiary Statement prepared nearly six years after the event.

  3. That Mr Abunucerah had recently read Exhibit C before giving evidence on 23 March 2018 may explain the apparent shift in his evidence between then and 30 April 2018 from being apparently definite that there were only two steps still fitted with riser shutters to being unsure about the condition of the formwork on 4 April 2012. As I have said there is no mention of the presence of only two unexpected riser shutters as a cause of Mr Zaya’s fall in the incident report completed by Mr Abunucerah after the fall (Exhibit 1DG, Tab 18, p. 145). The narrative in the incident report states that Mr Zaya “slipped from the stairs and fell” without ascribing a cause to that occurrence. That narrative was completed and signed by Mr Abunucerah and Mr Zaya on 4 April 2012, inferentially in the immediate aftermath of the fall.

  4. As I have indicated, Mr Abunucerah described proposed corrective action to obviate the risk of injury materialising again is in these terms:

“Removal of formwork at staircase 3.”

That work was to be done by 11 April 2012, within one week of the incident, and under the supervision of Mr Zaya. There is no mention of the need to remove two offending riser shutters only. The strong impression I have formed from the whole of the evidence is what was proposed was the removal of all of the formwork on the staircase.

  1. The acceptability of Mr Valletta’s evidence was not assisted by the consideration that he had not seen the statement taken from him in 2013 until it was sent to him by Energised Alliance’s current solicitors toward the end of 2017. Nor was the account recorded in it one apparently worthy of the weight that might otherwise be due to its relative contemporaneity by the consideration that it was unsigned. Mr Valletta’s acceptance of it as accurate in the witness box during the trial really did not advance matters. His description of the staircase which he said he inspected with Mr Abunucerah on 5 April 2012, as I commented above, suggests a staircase that was entirely stripped of formwork. He does not mention any formwork and his comment to the effect that there was no foreign matter or pooling of water on the staircase interfering with its efficiency as a means of access to the basement is overall inconsistent with Mr Abunucerah’s evidence and to some extent with Mr Zaya’s evidence. I have made it clear that I do not accept Mr Valletta’s evidence that Mr Zaya’s injury was not reported to him until 5 April 2012. In this respect, I have accepted as preferable the evidence of Mr Abunucerah. Mr Valletta frankly admitted a lack of recall of matters Mr Abunucerah seemed quite sure about. And both Mr Abunucerah and Mr Zaya gave evidence that the formwork had not been completely stripped from staircase 3. Both accepted that formwork remained in place on the open right side of the staircase as one descended. This was braced by wooden braces affixed externally. Mr Abunucerah’s evidence strongly suggests that the underside, structural formwork also was still in place. On one view, it perhaps could be said that Mr Valletta’s evidence was consistent with an inspection by him after Mr Abunucerah and Mr McElroy had removed the remaining two shutters. However, the differences between him and Mr Abunucerah, in particular, persuade me that in most respects, other than in relation to matters where his evidence accords with known facts or with the testimony of Mr Abunucerah, it should be put to one side. There is an important exception to this discussed below (at [98]).

Contingent Assessment of Civil Liability Act damages against Energised Alliance

Non-economic loss - s 16 CLA

  1. As I have said, Mr Zaya was 40 at the date of his injury and is now 47 years of age. On the findings I have made, he has suffered a very painful and disabling consequence in the form of his CRPS of his right arm, the prognosis for which is at best guarded. He has a life expectancy according to the medium life tables of nearly 37 years. In addition, he has suffered psychiatric consequences, although I have borne in mind my findings in relation to embellishment and exaggeration. His ordinary activities of daily life have been interfered with. I am satisfied, having regard to the pain and suffering he has suffered and will suffer, his loss of amenity, and loss of enjoyment, of life viewed objectively non-economic loss should be assessed, as claimed, at 50 percent of a most extreme case:   $317,500.00

Past economic loss

  1. I am satisfied that but for his injury, Mr Zaya would have continued in the concreting industry and probably in the capacity of a supervisor. Mr Valletta’s evidence indicated that he regarded him highly as a supervisor. There is evidence that his employer had no suitable duties for him after about October 2012 and may have gone through a period of financial uncertainty. However, economic conditions in New South Wales have been buoyant, especially in the infrastructure and construction industries. I am satisfied that but for his injury he would have been able to continue in full time work.

  2. In calculating damages for past economic loss, I have relied upon the amended net wages schedule in Exhibit D; tab 2 which calculated Mr Zaya’s loss up until 19 March 2018 on a net basis in the sum of $464,494. I am satisfied that by reason of the CRPS he has been totally incapacitated for work, that is to say he has had no residual earning capacity. The wages schedule utilises Mr Zaya’s actual net wages up until 4 October 2012, and thereafter updates the actual figure of $1,482 pw by reference to movements in wages according to the information published by the Australian Bureau of Statistics. I am satisfied that this is an appropriate methodology. For the purpose of updating the schedule, I have continued to adopt the figure of $1,720 per week, given sluggish wage movements over recent years. I calculate an additional period of 59.2 weeks since the schedule was prepared. My subtotal is $101,824.00. The total then for past economic loss is:   $566,318.00

Interest on past economic loss – s 18

  1. The amount claimed and calculated in the Amended Schedule of Damages (MFI 12) net of weekly payments of workers compensation at a rate of 2.76 percent, calculated in accordance with s 18, was $6,781. This seems manifestly erroneous. Given my findings on liability and the absence of up-to-date information about workers compensation payments, it seems futile to attempt to calculate interest. I will content myself by noting it as claimed.   $6,781.00

Future economic loss – s 13

  1. I am satisfied that Mr Zaya remains totally incapacitated by reason of his CRPS and that the prognosis remains guarded. His most likely future circumstances, but for the injury are that he would continue to work in a supervisory capacity in the concreting industry until he attained the age of 67. I have adopted the figure of $1,720 per week as his present rate of net earnings, but for his injuries. It seems to me on the evidence that the prospect of improvement is slight, whether or not he undertakes a further pain management course of treatment. But given that there is some, not remote, prospect of improvement, which may lead to the re-emergence of a useful earning capacity, I have formed the view that it is appropriate to adopt a somewhat higher than conventional discount rate for the vicissitudes of life of 22 percent. The period until retirement is 20 years and the 5 percent multiplier is 666.4, producing a subtotal of $1,146,208. After the application of the 22 percent discount for the vicissitudes, the amount that I would have allowed is:  $894,042.00

Past loss of employer’s compulsory superannuation contributions

  1. I have adopted the rule of thumb approach sanctioned by Najdovski v Crnojlovic [2008] NSWCA 175 of 11 percent on net earnings for the past. The figure produced is: $62,294.00

Future loss of compulsory superannuation contributions

  1. Adopting the same approach over a period of 20 years, the percentage is 13.9 and the figure produced is:   $124,271.00

Fox v Wood component

  1. As at 2 May 2018, the last date of hearing, the amount of income tax deducted from weekly payments of workers compensation was:  $32,400.00

Out of pocket expenses

  1. As at 2 May 2018 these were agreed in the sum of:  $98,507.59

Future out of pocket expenses

  1. The amount claimed is a relatively modest $27,297 which I will allow, however, this allows a very modest amount only for the possibility that Mr Zaya might re-enter an intensive multidisciplinary pain management course in the future:  $27,297.00

Past Griffiths v Kerkemeyer damages

  1. This claim was not pressed in closing addresses. Putting to one side the evidence concerning the assessments of the occupational therapists in the joint report, it was clear that the applicant’s sister with whom he resides had been in the custom of performing all domestic household duties necessary in their home before and after the plaintiff’s accident.

Future Griffiths v Kerkemeyer damages

  1. Given questions about whether the intensity threshold under s 15(3)(a) has been met, it is clear that the plaintiff has no entitlement to damages for the provision of gratuitous attendant care services. Moreover, as I have said because of the pattern of Mr Zaya’s previous domestic life, it’s doubtful that it could be said that the services his sister is providing would not be provided to him but for the injury: s 15(2)(c). However, one must allow for the contingency that his domestic circumstances may change in which event it may be necessary for him to enlist commercial care services to meet this need. It seems to me that it’s appropriate to approach this issue by allowing a buffer which is not substantially different from the Malec v JC Hutton calculation proffered on Mr Zaya’s behalf. I propose to allow the figure of $50,000 to meet this contingency.   $50,000.00

Section 151Z(2) Reduction

  1. Had Mr Zaya succeeded in establishing legal liability in the case, the conditions expressed in pars. (a) and (b) of s 151Z(2) would have been meant and the damages recoverable by him from Energised Alliance are required to be reduced by the amount by which the contribution which Energised Alliance would be, but for Part 5 WCA, entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable by dint of s 151Z(2)(d). Effectively on the findings I have made, the amount of the reduction is the difference between 20 percent of damages assessed under the CLA and 20 percent of the work injury damages assessed under WCA.

  2. Naturally, it is also necessary to reduce the damages Mr Zaya would have recovered by reason of his own contributory negligence which I have assessed at 10 percent.

Work injury damages

  1. Work injury damages are calculated having regard to the common law of damages as modified by the provisions of Division 3 of Part 5 WCA. In particular, under s 151G WCA, the only damages that may be awarded are damages for past economic loss due to loss of earnings and damages for future economic loss due to the deprivation or impairment of earning capacity. The other modifications, leaving aside the question of pre-trial interest, are materially identical to the damages recoverable under the CLA. Accordingly, the work injury damages that Mr Zaya would have recovered are calculated by reference to the amounts I have allowed above for past economic loss, future economic loss, past loss of superannuation contributions, future loss of superannuation contributions and the Fox v Wood component. From damages so assessed it would be necessary to deduct the amount of weekly payments of compensation Mr Zaya has recovered during the periods of incapacity resulting from the injury of 4 April 2012. It is unnecessary to re-calculate the work injury damages for the purpose of these contingent findings as to quantum.

  2. The total amount to, for or on behalf of Mr Zaya pursuant to WCA as at 27 April 2018 was agreed at $476,994.44 (MFI 10) of which $251,193.26 had been paid by way of weekly payments.

Orders

  1. My orders are:

  1. Judgment in favour of the first defendant;

  2. The plaintiff to pay the first defendant’s costs;

  3. Judgment in favour of the second defendant;

  4. The plaintiff to pay the second defendant’s costs to the extent of the second defendant’s entitlement under the Workers Compensation Acts and the Regulations made thereunder;

  5. Dismiss each of the cross-claims brought by the first defendant and the second defendant respectively with no order as to costs;

  6. In the event that any party wishes to make an application for a special costs order a written submission setting out the order sought, the reasons why it should be made, and accompanied by any necessary supporting evidence may be lodged with my chambers within 7 days.

**********

Decision last updated: 08 May 2019

Actions
Download as PDF Download as Word Document
Cases Cited

21

Statutory Material Cited

6

Leighton Contractors Pty Ltd v Fox [2009] HCA 35
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1
Leighton Contractors Pty Ltd v Fox [2009] HCA 35