Zollo v Telstra Corporation Limited - [2024] SADC 162

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ZOLLO v TELSTRA CORPORATION LIMITED
[2024] SADC 162
Reasons for Decision of his Honour Judge Durrant
18 December 2024
TORTS - NEGLIGENCE - PROCEDURE AND EVIDENCE - EVIDENCE - ADMISSIBILITY
TORTS - NEGLIGENCE - DUTY OF CARE: EXISTENCE - FACTORS DETERMINING EXISTENCE OF DUTY
TORTS - NEGLIGENCE - STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH - CIVIL LIABILITY LEGISLATION - RESPONSE TO RISK AND AVOIDABILITY
Applicant alleged injury in 2016 when he tripped and fell over the protruding lip of the respondent's pit contained in a paved footpath - applicant alleged respondent had negligently installed the pit in the 1960's or 1970's - applicant alleged respondent had negligently maintained the pit - applicant alleged respondent had failed to warn of the danger of protruding lip - loss and damage claimed - applicant represented himself and assistance provided by Court to explain what was required to run his case - objection to expert medical evidence as to causation as opined a different mechanism of injury than subject of evidence at trial - report irrelevant and inadmissible - application for adjournment to obtain another report refused - declined to exercise discretion to admit into evidence documents going to prove past economic loss - consideration of findings of other courts and tribunals about those documents - assessment of applicant as a witness - opinion formed the person by whom or at whose direction documents prepared should have been called - contrary to interests of justice to admit documents into evidence - application to adjourn trial to investigate and obtain further documents going to loss and damage refused - effective and efficient use of courts resources discussed - impact of documents and cross-examination on credit and reliability of applicant - documents recording what the applicant had reported happened when he said he was injured close to or at the time of the incident discussed - obligation on applicant to prove footpath dangerous - pedestrian expected to exercise sufficient care by looking where going and perceiving and avoiding obvious risks - would impose too high a standard to oblige respondent to periodically inspect a large number of pits - no duty to prevent or eliminate all dangers in footpaths - duty to eliminate or reduce hazards a pedestrian like the applicant taking reasonable care for own safety would not see and avoid - no evidence to establish any protrusion of lip of pit constituted a danger or hazard such that any form of warning should have been given - any risk of tripping ought to have been obvious to the applicant - no basis the respondent knew or ought to have known any part of the pit had been protruding established - respondent did not breach any duty of care owed to applicant - applicant failed to establish he had suffered any loss or damage or as to the nature of any such loss - orders dismissing applicants claim and entering judgment for the respondent should be made.
Held:
1. The applicant has not established he tripped and fell over the protruding lip of the respondent's pit contained within a paved footpath.
2. The applicant has not established the respondent negligently installed the pit.
3. The applicant has not established the respondent negligently maintained the pit.
4. The respondent did not breach any duty of care to the applicant.
5. The applicant's claim should be dismissed and orders entering judgment for the respondent made.
6. As to the costs of this action, they will be reserved for further direction and written submission, if not agreed.
Civil Liability Act 1936 (SA) s 36; Return to Work Act 2014 (SA) s 4; Corporations Act 2001 (Cth) s 127; Building Work Contractors Act 1995 (SA); Evidence Act 1929 (SA) ss 52, 53; Competition and Consumer Act 2010 (Cth) s 236, referred to.
Dasreef Pty Ltd v Hawchar [2011] 243 CLR 588; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; Zollo v Return to Work SA (Built It Pty Ltd) [2016] SAET 92; Zollo v Return to Work SA [2017] SAET 111; Commissioner for Consumer Affairs v Built It Pty Ltd and Zollo [2019] SADC 66; Polley & Anor v Zollo & Ors [2019] SADC 76; Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo (No.2) [2019] SADC 191; Commissioner for Consumer Affairs v Zollo (No.2) [2019] SADC 191; Zollo v Return to Work Act [2017] SAET 64; Zollo v Commissioner for Consumer Affairs [2020] SASCFC 118; Smith's Newspaper v Becher [1932] HCA 39; Aon Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175; Richardson v Armistead [2000] VSC 551; Morrissey v Clements [1885] Vic Law Report 4; Beckett v Ramsdale (1885) 31 ChD 177; June v Brolly [1891] Vic Law Report 100; Plunkett v Bull [1915] HCA 14; Thwaites v Ryan [1984] Vic Law Report 7; Fox v Percy [2003] HCA 22; Ghantous v Hawksbury City Council [2001] HCA 29; Littler v Liverpool Corporation [1968] 2 All ER 343; Boroondara City Council v Cattanach [2004] VSCA 139 ; Rickards v Australian Telecommunications Commission (1983) 3 NSWLR 155 ; Battunga Country Lions Club v Paues [2021] SASCA 72, considered.

ZOLLO v TELSTRA CORPORATION LIMITED
[2024] SADC 162
Contents
Introduction and Summary
Relevant pre-trial steps and chronology
Assistance to self- represented parties
Case management by Judge Deuter

Rulings on the evidence and applications for adjournment
Objection to the expert evidence of Mr Kossmann at trial
Ruling on objection to Kossmann report
Application to adjourn trial – Kossmann report
Application to admit into evidence purported business records
Findings of this court and SAET tribunal about proposed tender documents
Ruling on objection to tender
Ruling on second application for adjournment of the trial

Was Mr Zollo injured as he said he was in his evidence?
What did his pleadings say?
What did Mr Zollo say happened?
Approach to assessment of Mr Zollo as a witness
Assessment of Mr Zollo as a witness
Use made of documents created closer to 30 March 2016
The notes of Dr Ling
The Sportsmed declaration
Mr Kossmann attendance
The Telstra Personal Injury Accident Form
Three versions of events given by Mr Zollo
Evidence about other documents signed by Mr Zollo
Finding about evidence of Mr Zollo about what had happened

Did Telstra owe a duty of care to Mr Zollo?
Did Mr Zollo suffer any loss from the alleged injury and what was the nature and degree of any such loss?
Conclusion
Introduction and Summary

The applicant Alesandro Zollo gave evidence that he injured his right knee at Greenacres, on 30 March 2016, at 8.30pm, when he tripped on and fell over the protruding lip of a Telstra pit contained within a paved footpath.
Mr Zollo pleaded the negligent installation and maintenance of the pit by the respondent Telstra Corporation Limited, and its failure to warn of the danger of the protruding lip, had caused his fall and injury.[1]
[1] Claim (Revision 4) (FDN 52).
Mr Zollo claimed total loss and damage of between $785,930.00 and $1,408,480.95, plus interest and costs.[2]
[2] Mr Zollo filed a document entitled ‘Economic Losses – Revision 1’ in which he claimed a total sum of $1,408,480.95, being $1,349,576.00 as the ‘Total Balance of All Losses’ plus $58,904.95 described as ‘Total General Expenses’; (FDN 72), see also his Closing Submissions of the Applicant (FDN 87) at page 15; Claim- Revision 6 pleaded damages of $785,930.00 (FDN 58) at page 11.
Telstra admitted it had been the owner of the pit but denied any incident as described by Mr Zollo had occurred. Telstra denied it had owed Mr Zollo any relevant duty of care and pleaded any risk presented by the lip had been obvious.[3] Telstra further denied Mr Zollo had suffered any loss or damage.
[3] Civil Liability Act 1936 (SA) s 36.
Following a trial, in which Mr Zollo represented himself, for the reasons elaborated below, I will make orders dismissing his claim and as to the costs of this action.
Relevant pre-trial steps and chronology
Assistance to self- represented parties
It is well understood litigants in person suffer disadvantage.
This Court therefore took steps both before and during the trial to address the ‘central dilemma facing a court’ and provided assistance to Mr Zollo, ‘without losing the perception of impartiality so important to the discharge of the judicial function’.[4]
[4] Australian experience with self- represented litigants, (2003) The Australian Law Journal, [820]-[826].
This action was judge managed before trial. During the trial, Mr Zollo was provided assistance to appreciate what was required of him to run his case.[5]
[5] See for example, T2-T4.
Notwithstanding that assistance, Mr Zollo had not adequately prepared for trial. When that lack of preparation detrimentally impacted his case, he applied to adjourn the trial.[6] To explain why I refused to do so, it is necessary to set out some of the procedural history of this action.
Case management by Judge Deuter
[6] Somewhat presciently, Deuter DCJ had anticipated that might happen. Her Honour, on 10 October 2023, when she refused an application by Telstra to adjourn this trial because it considered Mr Zollo was not ready, remarked Mr Zollo had been given the opportunity to present his case and if he did not present his evidence at trial, that would a matter for the trial judge.
The solicitors for Mr Zollo filed his claim on 29 March 2019. They pleaded their client had suffered a personal injury on 30 March 2016.[7]
[7] Claim, (FDN 1).
On 10 November 2020, those solicitors filed a revised claim.[8]
[8] Claim - Revision 1, (FDN 24).
On 15 April 2021, those solicitors by notice ceased to act for Mr Zollo.[9]
[9] Notice of Cessation of Acting, (FDN 28).
On 21 June 2021, Mr Zollo filed a Notice of Acting in person.[10]
[10] Notice of Acting, (FDN 30).
On 16 May 2022, he filed a second revised claim.[11]
[11] Claim - Revision 2, (FDN 37).
On 26 July 2022, a four-day trial was listed to start on 5 December 2022.[12]
[12] Record of Outcome, (FDN 42).
On 12 August 2022, Mr Zollo filed a third revised claim.[13]
[13] Amended Claim – Revision 3, (FDN 41).
On 10 November 2022, the trial date was vacated, on the application of Mr Zollo, to allow him to obtain medical treatment.[14]
[14] Record of Outcome, (FDN 51).
In December 2022, Mr Zollo filed fourth and fifth revised claims.[15]
[15] Amended Claim – Revision 4 (FDN 52); Amended Claim – Revision 5 (FDN 53).
On 5 April 2023, Deuter DCJ ordered that: Mr Zollo had leave to file and serve a sixth revision of his claim by 28 April 2023; Telstra had to file a defence to that sixth revision by 19 May 2023; Mr Zollo had to serve any further medical evidence by 11 August 2023; Telstra had to serve further medical evidence by 6 October 2023; and a trial of 5 days would commence on 20 November 2023.[16]
[16] Record of Outcome (FDN 56).
On 8 May 2023, Mr Zollo filed his sixth and final revised claim.[17]
[17] Amended Claim – Revision 6 (FDN 58).
At a hearing for directions on 12 July 2023, Deuter DCJ explained to Mr Zollo that he had to call at trial any medical witnesses required to prove his case and if necessary, he should issue subpoenas for their attendance.[18]
[18] Record of Outcome (FDN 60).
At a further hearing for directions on 24 August 2023, Mr Zollo told Deuter DCJ he had not arranged any medical witnesses, as he could not afford to pay their fees to attend for trial.[19] Her Honour told Mr Zollo he could subpoena any required witnesses and should do so if he needed.[20]
[19] Record of Outcome (FDN 63).
[20] Ibid.
At a further hearing for directions on 11 September 2023, Deuter DCJ recorded: Mr Zollo planned to call Dr Menz and Mr Kossmann to give evidence at trial; Dr Menz had not provided a report but was reviewing his notes in order to do so; Mr Zollo intended to call Dr Wallace but no report had been obtained from him; and Mr Zollo had not arranged for an expert economic loss report but planned to obtain one.[21] Her Honour ordered any supplementary reports from Mr Kossmann, Dr Menz or Dr Wallace be served by 6 October 2023.[22]
[21] Record of Outcome (FDN 65).
[22] Ibid.
At a hearing for directions on 10 October 2023, Deuter DCJ recorded no further or updated medical reports had been served, Mr Zollo would not be getting an updated report from Mr Kossmann and was awaiting reports from Dr Menz and Mr Wallace.[23]
[23] Record of Outcome (FDN 69).
At a hearing for directions on 23 October 2023, Deuter DCJ recorded that Mr Zollo had advised he had received a medical report from Dr Wallace, would not be calling and had no report from Dr Menz and that Mr Kossmann would be called to give evidence relating to his expert report dated 10 October 2018.[24]
[24] Record of Outcome (FDN 71).
Rulings on the evidence and applications for adjournment
Objection to the expert evidence of Mr Kossmann at trial
At the commencement of the trial, Mr Zollo confirmed his pre- trial position and announced he would call orthopaedic surgeon Mr Kossmann.[25] Mr Kossmann had provided an expert report on 18 October 2018, which opined the mechanism of injury detailed therein had caused Mr Zollo’s injuries.[26]
[25] T4-8, Specifically T5.7-11; In his written closing address, Mr Zollo said he had intended to call Mr Menz at trial (see Closing Submission of the Applicant FDN 87 at page 2). That contradicts what was recorded by Deuter DCJ at the directions hearing held on 23 October 2023, that Mr Zollo advised he would not be calling Dr Menz to give evidence and had no report from him (Record of Outcome FDN 69 and Record of Outcome FDN 71); See further at T14.3-T15.7, where no mention is made by Mr Zollo of Dr Menz being called.
[26] Record of Outcome (FDN 71).
Mr Zollo said also he would call his treating specialist Dr Wallace.[27]
[27] T7.37-T8.3.
Mr Zollo said he expected Telstra would call orthopaedic surgeon Mr Jackson. Telstra had confirmed before trial they would not be calling him.[28]
[28] T9.7-T12.28.
As it eventuated, Mr Zollo was the only witness. He called no experts nor did he tender any expert reports.
Dr Wallace, whom Mr Zollo said was his treating specialist, was not called because Mr Zollo had not made the necessary arrangements.[29]
[29] T238.35-T240.19; T500.10-T502.38; T646.34-T647.1.
As for Mr Kossmann, Mr Zollo had been on notice from before trial that Telstra objected to his report and expert evidence.
While Mr Zollo expressed surprise about that, the Notice of Objection filed on 14 November 2023,[30] clearly noted Telstra considered the factual basis for the Kossmann opinion was not supported by evidence.
[30] Uniform Civil Rules, rule 154.5; Notice of Objection (FDN 75); see also Record of Outcome dated 11 September 2023 (FDN 65).
Counsel for Telstra submitted the report was irrelevant because the mechanism of injury opined was materially different from that pleaded and from that described by Mr Zollo in his evidence at trial.[31]
[31] T153.9-T155.26.
Mr Zollo, in addressing that objection, took an approach he repeated through the trial. Confronted with something which might reflect negatively on, or which might be damaging to his case, he deflected and denied his responsibility.
While mindful of the difficulties of self- representation, that repeated attitude and behaviour was instructive. Particularly, it reflected his approach to trial preparation and it informed his later applications to adjourn the trial.
Mr Zollo accepted his solicitor had instructed Mr Kossmann that he had tripped on a protruding lip. He sought to explain why Mr Kossmann had then assumed different facts in his opinion, in several ways.
He vehemently denied in his evidence and in submissions he had provided that different version of events. He speculated the typist who had engrossed the report had got it ‘wrong’ and Mr Kossmann had never read the draft. Alternatively, he said Mr Kossmann, for some unexplained reason, had got the report ‘very wrong’.[32]
[32] T171.1-3.
Neither Mr Kossmann nor anyone else was called to explain why Mr Kossmann had reported Mr Zollo had told him he had been injured when he had tripped on a tilted Telstra lid.
Mr Zollo further tried to explain why a report assuming the correct facts had not since been obtained and why he had not earlier addressed that error.
Mr Zollo said he had never seen the letter of instruction sent by his solicitor in August 2018. He said that he had not ever read the report. He criticised the solicitors for Telstra for not raising the issue with his solicitors.[33] He said he did not know about it because his lawyer had not told him. Mr Zollo criticised counsel for not warning him of the objection before trial.[34]
[33] T203.1-3.
[34] Mr Zollo did not address the Notice of Objection (FDN 75).
Mr Zollo did not explain, if he had never read that report, why he told Deuter DCJ he would rely on it. He did not explain why, without reading it, he had included it in his proposed tender book, and had sought to tender it at trial.
Nonetheless, I understood Mr Zollo did accept the report was irrelevant as it did not address the cause of his injuries.[35] Accordingly, he said he wished to get a report from Mr Kossmann assuming the correct mechanism of injury. I explained to Mr Zollo a letter of instruction conforming with the rules as to expert evidence would be required, that he would likely have to attend on Mr Kossmann for examination, and that Mr Kossmann would have to provide a complying report.[36]
[35] T219.15-18.
[36] T552.33-T553.11; see also T888.8-19; T897.5-11; T978.20-24.
With those tasks in mind, I asked Mr Zollo to contact Mr Kossmann and report back when he would be able to see him, when Mr Kossmann might be able to provide a report and when Mr Kossmann might be able to give evidence.[37]
[37] T241.20-26; T873.2-35 T886.3-T888.30; T241.23-26.
While I asked for updates about that several times during the balance of the trial, I was not assisted by the answers given.[38] Mr Zollo told me he had called Mr Kossmann and sent an email. He could not provide me a copy of that email, he said, because the person who provided him with administrative assistance was in hospital and he was unable to access her computer. Nor did Mr Zollo produce to me a draft letter of instruction to Mr Kossmann, as I had asked him to do.
Ruling on objection to Kossmann report
[38] T304.1-38; T549.26-28; T870.32-T871.5; T894.28-T897.12; Notice of Objection (FDN 75).
I refused tender of the Kossmann report as irrelevant and inadmissible for several reasons.[39]
[39] Dasreef Pty Ltd v Hawchar [2011] 243 CLR 588 at [89]- [91]: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [85]; Contrary to what Mr Zollo accepted during the trial about the Kossmann Report, in his Closing Submissions of the Applicant (FDN 87) he said it was ‘rejected’ at [14]; see to the contrary Mr Zollo at T492.7-8.
First, the opinion was not backed by primary evidence. It was premised on Mr Zollo stepping on a Telstra pit while its lid had been tilted and having fallen due to that. Mr Zollo said of course he had tripped and fallen over the lip of the pit protruding above the footpath by 30-35mm.
Second, why Mr Kossmann had recorded the account of the injury he did, was not adequately explained. In his report, he said Mr Zollo had told him that and he had complied with the rules.[40] Mr Zollo said he had not said that.[41]
[40] Mr Kossmann had been provided with copies of Division 2 of the Supreme Court Supplementary Rules 2014, and R160 and had said he had read that and had understood it.
[41] T172.24-26; T211.24-36.
Further, Mr Zollo had put the report in his tender book and sought to tender it, while saying his solicitors had not given it to him, and he had never read it.[42]
[42] T898.24-T899.34.

Telstra objected in advance to Mr Kossmann giving oral evidence without a report, as it would have been unfair to allow Mr Zollo to put facts and obtain an opinion for the first time in the witness box. While no application was made to call Mr Kossmann without a report, it would have been unfair to Telstra ‘to find out about the expert's thinking for the first time in cross-examination’.[43]
Application to adjourn trial – Kossmann report
[43] Dasreef supra per Heydon J at [91].
Following the acceptance by Mr Zollo the Kossmann report was irrelevant, he applied to adjourn the trial to get another report.[44] I did not rule on that application immediately and discussed with Mr Zollo that he should first update me to establish how long he would need to get his case in order. On that basis Mr Zollo withdrew his application for adjournment.[45]
Application to admit into evidence purported business records
[44] T204.31-T205.4; T206.12-26; T210.28-38.
[45] T241.20-26.
Mr Zollo applied in his case to tender two documents - a PAYG Summary for the year ending 30 June 2014[46] and an Employment Contract with Built It Pty Ltd dated 15 May 2013[47] - as relevant to prove his past earnings.
[46] Marked MFIA4; T60.30-T62.22; T150.36; T151.32.
[47] Marked MFIA5; T53.31-T56.1; T59.37-T60.28.
Section 53 of the Evidence Act (SA) 1929, provides that:
(1)    An apparently genuine document purporting to be a business record—
(a)is admissible in evidence without further proof; and
(b)is evidence of a fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).
(2)    A document must not be admitted in evidence under subsection (1) if the court is of the opinion—
(a)that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b)that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c)that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(3)    For the purpose of determining the evidentiary weight (if any) of a document admitted in evidence under subsection (1), consideration must be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(4)    In this section—
"business" means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality.
"business record" means—
(a)any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or
(b)any reproduction of any such record by photographic, photostatic, lithographic or other like process.
Telstra urged me not to admit those documents into evidence. It submitted the person by whom or at whose direction they were prepared could and should have been called to give evidence of the matters contained therein. That objection had also been foreshadowed in Telstra’s Notice of Objection and[48] the cross-examination of Mr Zollo had established relevant facts going to the objection.
Findings of this court and SAET tribunal about proposed tender documents
[48] See Notice of Objection (FDN 75) at page 4.
Mr Zollo gave evidence he suffered a work injury in 2014, while employed by Built It Pty Ltd and in 2015, claimed workers compensation.[49]
[49] Return to Work Act 2014 (SA) s 4; T48.1- 49.37.
The South Australian Employment Tribunal (SAET) upheld the rejection of that claim and made findings about the documents proposed to be tendered.[50]
[50] Zollo v Return to Work SA (Built It Pty Ltd) [2016] SAET 92 at [24]-[79], and [42]; [2017] SAET 64 at [20] and [34]; Zollo v Return to Work SA [2017] SAET 111.
In 2019, Mr Zollo was respondent to actions issued by the Commissioner for Consumer Affairs and Mr Neil Polley.[51] Findings were also made about those proposed tender documents, and a ‘Remittance Advice’, by Slattery DCJ, and further in respect of a written undertaking signed by Mr Zollo, by Kudelka DCJ.[52]
[51] Commissioner for Consumer Affairs v Built It Pty Ltd and Zollo [2019] SADC 66 at [167]; Polley & Anor v Zollo & Ors [2019] SADC 76 at [165]-[170] and [216]; Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo (No.2) [2019] SADC 191 at [8]-[9].
[52] Ibid, Exhibit A33.
In Zollo v Return to Work SA (Built It Pty Ltd),[53] Deputy President Magistrate Ardlie determined Mr Zollo was not a ‘worker’.[54]
[53] Zollo v Return to Work SA (Built It Pty Ltd) [2016] SAET 92.
[54] Return to Work Act 2014 (SA) s 4; Ibid at [7].
In respect of the financial year ending 30 June 2014, Mr Zollo said he had not been given pay slips.[55] Rather, he had relied, to establish he had been a ‘worker’, on the 2014 PAYG Payment Summary for the year ending 30 June 2014.[56] That document, he said, had recorded his wages that financial year of $128,790.
[55] Ibid at [16].
[56] Ibid at [15].
Before SAET, Mr Zollo was shown a Remittance Advice dated 28 May 2015.[57] It recorded his receipt of $128,790 from Built It Pty Ltd that day for nett wages to 30 June 2014, of $93,600, being less PAYG tax of $23,982.96.[58]
[57] Ibid at [18].
[58] Ibid.
The Deputy President found the purported payment of wages up to 30 June 2014, could not be reconciled with the payment of that same sum on 28 May 2015, pursuant to the Remittance Advice.[59] The Deputy President explained the cross-examination of Mr Zollo about that in these terms:[60]
The applicant when confronted with the Remittance Advice and the PAYG Payment Summary for the year ending 30 June 2014 ultimately agreed that as at 30 June 2014 he had not received any money for the previous twelve months so the PAYG Payment Summary was wrong. His attention was drawn to the bundle of payslips behind tab 27. He confirmed that payslips, which spanned the period December 2013 to December 2014, were incorrect as he did not receive a payment until May 2015.
Behind tab 36 appears a “Minutes of meeting of directors” dated 5 January 2015. Present were Brian Thorogood and Alessandro Zollo (the applicant). The resolution of that meeting was that the applicant would be paid his entitlements from the settlement proceeds of the company funds held in Carrington Conveyancers trust account by 30 June 2015. The applicant ultimately agreed that Carrington Conveyancers were a client of Built It Pty Ltd.
[59] Ibid at [19-[20].
[60] Ibid at [19] to [20]; His Honour further found the payment was not for time worked or under a contract arrangement or understanding, at [43]; See Return to Work Act 2014 (SA) and the definition of worker contained in s 4.
That Remittance Advice was also considered in Polley.[61] That case concerned the distribution of those settlement proceeds held by Carrington Conveyancers, totalling $128,790, to Mr Zollo, on 28 May 2015.
[61] Polley & Anor v Zollo & Ors [2019] SADC 76 at [165]-[170].
Slattery DCJ found a joint venture between Mr Zollo and Mr Polley.[62] He found Mr Zollo had breached both his fiduciary duties to Mr Polley and s 236 of the Competition and Consumer Act 2010 (Cth).[63] As for the payments represented in the Remittance Advice as wages paid on 28 May 2015, His Honour considered the findings of the Deputy President important as:[64]
Mr Zollo was quite aware of the disposition of the amount of $130,000 received on the assignment of the Hillcrest land contracts. The money was paid direct into his own bank account. He then purported to use those monies to make a false claim in the South Australian Employment Tribunal alleging that he was entitled to compensation payments arising out of an injury allegedly suffered in 2014. That claim was rejected. The significance of these matters is that Mr Zollo well knew how the $130,000 was dealt with, that he received the funds into his personal account and he used the receipt of those funds to falsely claim that he was a director and employee of Built It Pty Ltd at a particular time. Before this Court, he had denied those propositions. I am satisfied that this is more than an example of approbation and reprobation by Mr Zollo, it is another example of the significant untruths told by Mr Zollo to this Court.
[62] Ibid at [3].
[63] See schedule 2, Australian Consumer Law.
[64] Ibid at [164]-[170].
Mr Zollo appealed the decision of Deputy President Ardlie.[65] On appeal, in respect of the 2014 PAYG Payment Summary, the Remittance Advice, and the Employment Contract, the Full Bench of the SAET remarked:[66]
Mr Zollo was perhaps quite fortunate in relation to the findings that were made by the Deputy President. The evidence was capable of supporting findings that most of the documentary evidence produced at the hearing by him was a contrivance. When questioned about that, he claimed not to know or understand how that could be so. He offered no explanation for the inconsistencies and irregularities in the documents he relied upon other than to say that the misleading documents came from Built It Pty Ltd. However his claim that Built It Pty Ltd was responsible for the unreliable and misleading documents produced to the hearing ignores that it was Mr Zollo who personally responded to all the summonses directed to Built It Pty Ltd, despite not being a director of the company when the summonses were issued.
[65] Zollo v Return to Work SA [2017] SAET 64.
[66] Ibid at [32].
The Employment Contract Mr Zollo sought to be tendered in this case had also been the subject of a finding by Deputy President Ardlie. He found it had not been signed by a director, as it represented,[67] and therefore disregarded it.[68]
[67] [2016] SAET 92 at [24].
[68] Ibid at [28].
I have also been satisfied in this case that the purported Employment Contract- said to evidence employment and economic loss - was not signed by a person who had been a director of Built It Pty Ltd at the date of its execution.[69]
[69] Exhibit R21; See Corporations Act2001 (Cth), s 127 which sets out the ways a company may execute a document by its directors.
Also relevant are decisions of Kudelka DCJ, determining complaints against Mr Zollo and Built It Pty Ltd, by Consumer Affairs.[70] Her Honour found proper cause for disciplinary action,[71] and permanently disqualified and prohibited Mr Zollo from working in the building industry.[72]
[70] [2016] SAET 92 at [29].
[71] For breaches of the Building Work Contractors Act 1995 (SA); Zollo v Commissioner for Consumer Affairs [2020] SASCFC 118; Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo [2019] SADC 66; Commissioner for Consumer Affairs v Built It Pty Ltd & Zollo (No.2) [2019] SADC 191.
[72] [2019] SADC 191.
Mr Zollo disputed he had breached an undertaking given on 21 March 2000,[73] to resolve an action brought by him challenging disqualification of his builder’s licence. The undertaking had been prepared by his solicitor and limited him to working in the building industry as an employee only.[74]
[73] Exhibit A33.
[74] The undertaking was tendered by Mr Zollo as Exhibit A23.
Kudelka DCJ found the ‘evidence [Mr Zollo] acted in the position of a director of [Built It Pty Ltd] at all relevant times…overwhelming’.[75] She rejected his evidence he had been an employee.[76] She found he had been aware he had signed the undertaking, had tried to subvert its effect and that he had been running the company in breach of that undertaking.[77]
[75] [2019] SADC 66 at [167].
[76] Ibid.
[77] Ibid at [169].
As he had done with the Kossmann report, Mr Zollo sought to explain away the inconvenient aspects of those findings by SAET and this Court.
Mr Zollo said he had never seen the undertaking the subject of consideration by Kudelka DCJ.[78] He said his solicitor and the Crown Solicitor had acted to present the undertaking, without his knowledge and without him signing it.[79] He said, scandalously, the undertaking was ‘fraudulently presented to the judge’.[80]
[78] T355.16-31; T712.21-31; T755.35-T758.24; Ibid at [169] where Kudelka DCJ found ‘that in 2010 Mr Zollo was well aware he had signed the undertaking not to be a director’.
[79] Closing Submissions of Applicant (FDN 87) at [85].
[80] T355.29-31; see also T625.8-T626.5.
In respect of the findings made about the 2014 PAYG Payment Summary, Remittance Advice and Employment Contract, Mr Zollo disclaimed them as records of Built It Pty Ltd, not his records. He said he had never seen the Remittance Advice and his lawyer had requested it from ‘the office’, not him.[81]
[81] T332.23-25.
When it was demonstrated in his cross-examination that the Remittance Advice had been attached to his sworn statement tendered to SAET, Mr Zollo said he could not recall that statement or the remittance advice.[82]
[82] T277.21-T278.38.
Mr Zollo was also shown in his cross-examination the reasons of SAET which found he accepted the 2014 PAYG Payment Summary was related to the Remittance Advice.[83] Mr Zollo denied he had accepted that proposition.[84]
[83] [2017] SAET 64 at [24]-[25].
[84] T283.4-T286.27.
Mr Zollo was shown in his cross-examination the reasons of the Full Bench about the PAYG Payment Summary for 2014.[85] He said the Deputy President and the Full Bench, ‘ha[d] got it wrong’ and he had not accepted in his evidence before SAET those documents were related.[86] Mr Zollo maintained he had not received monies pursuant to the Remittance Advice.[87]
[85] T281.1-T286.27.
[86] T292.4-28.
[87] Ibid.
By way of further explanation, Mr Zollo said he had not read the reasons of the Full Bench;[88] he had never been given a copy by his counsel.[89] Further, he said his counsel had appealed to the Supreme Court, but he had not seen the notice.[90]
[88] T296.14-18.
[89] T338.3-26.
[90] T343.32-34; Exhibit A39; The Notice of Appeal was dated 20 July 2017 and required an extension of time as leave to appeal out of time was required. Mr Zollo said the appeal had not yet been heard but he would be proceeding with it; Mr Zollo in his Closing Submissions of the Applicant (FDN 87) contended that each of the decisions at footnotes 49 and 50, and also Zollo v Commissioner for Consumer Affairs [2020] SASCFC 118, were wrong.
Mr Zollo appreciated the documents he relied upon had been found by SAET to not support his claim he was a ‘worker’.[91] I asked him why he had relied on them in this case, rather than obtain other documents like bank statements.[92] Mr Zollo said he would get information from his bank to show his receipt of wages from Built It Pty Ltd in 2014.[93] He did not do that.
[91] T334.1-28.
[92] T334.29-37.
[93] T334.34-35.
In respect of the decision in Polley,[94] Mr Zollo said, contrary to the findings, he had never said he had not personally acted as a building works supervisor,[95] and the court was ‘wrong’ to conclude monies paid pursuant to the remittance advice were part of the impugned transaction with Mr Polley.[96]
Ruling on objection to tender
[94] [2019] SADC 76.
[95] Ibid at [147]; Mr Zollo had also told Slattery DCJ he disputed giving the undertaking and had only discovered it after about 15 years, evidence His Honour considered to be ‘manifestly untrue and deliberately so’, at [147]; T351.33.
[96] Ibid at [164].
Following the cross-examination of Mr Zollo, I considered whether the PAYG Payment Summary and Employment Contract ought to be admitted into evidence.[97] I was not satisfied they should be and declined to admit them for several reasons.
[97] Evidence Act 1929 (SA), s 53.
Mr Zollo had disavowed those documents and had said other judicial officers had not properly recorded his evidence about them and that they were company documents which he had not prepared and that they contained information beyond his knowledge.
Mr Zollo could not explain the relevance of the Remittance Advice to his 2014 earnings and disputed the findings of this court and SAET about that.
The Employment Contract had not been properly executed.[98]
[98] Corporations Act 2001 (Cth), s 127.
The evidence of Mr Zollo and the findings about those documents (and the Remittance Advice) in this Court and the SAET had caused me to form the opinion the person by whom or at whose direction they were prepared should have been called by Mr Zollo to give evidence of the matters contained in those documents.
For the same reasons, it was contrary to the interests of justice to admit those documents in evidence and accept they established the facts contained.
Finally, it would have been unfair to Telstra, where the authors or people who could properly explain the documents had not been called, to admit them into evidence when Mr Zollo could not explain their relationship to the Remittance Advice and had described them all as company records, not his.
Ruling on second application for adjournment of the trial
After his evidence, Mr Zollo made a second application for adjournment of the trial. He expanded its necessity beyond the need to obtain a report from Mr Kossmann. He said he also wished to subpoena Mr Wallace, and needed to obtain further documents to prove his past earnings and future economic loss.
I asked Mr Zollo what documents he needed and from whom he would get them. That reflected the onus was on Mr Zollo to establish diminution in his earning capacity to allow comparison between what he was likely to have earned if he had continued uninjured and what he would likely have earned injured.[99]
[99] Smith’s Newspaper v Becher [1932] HCA 39, (1932) 47 CLR 279 at [288], [292], [296]-[299] and [315].
In refusing to adjourn the trial, I indicated I would provide reasons.
I had regard to the history of this action, the steps taken by Mr Zollo to prepare for trial, the case management of this action to assist him to be ready and the effective and efficient administration of justice by this Court and case management principles.[100]
[100] See Aon Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175.
Having regard to the estimate of Mr Zollo that six months would be ‘plenty’ of time,[101] I was not satisfied Mr Zollo would be ready by then, or ever, for a multitude of reasons.
[101] T450.7-12.
Mr Zollo had not explained adequately why he was not ready for trial as the pre- trial directions anticipated.[102] The most blatant example of his failure to be ready was his assertion he had not even read the Kossmann report.
[102] In his Closing Submission of the Applicant (FDN 87) at [15]-[17] Mr Zollo said Judge Deuter ‘had clearly briefed me on the importance of calling specialist [sic] to prove medical evidence’.
These proceedings related to events said to have occurred over eight years before on 30 March 2016. The report from Mr Kossmann had been provided on 10 October 2018. Solicitors had commenced this action over four years before the trial on 29 March 2019, having received that report.[103] The case pleaded had been inconsistent with the Kossmann report. Mr Zollo would, if an adjournment was granted, have been effectively starting his case again in so far as causation was concerned.
[103] Claim (FDN 1).
Mr Zollo had not updated me about Mr Kossmann.[104] He had not demonstrated he had drafted and sent a letter of engagement or made an appointment and when Mr Kossmann would produce a report and give evidence.
[104] T298.1-302.12; T304.1-38; T486.34-T493.18; T497.1-T500.9; T632.5-T640.35; T645.14-T646.11; T646.25-38.
There was a real potential Telstra would decide to engage its own expert to prepare a responding report on causation, which could take another 3-6 months.
This action had been listed for trial once before. A four-day trial had been listed to start on 5 December 2022.[105] It had been vacated on the application of Mr Zollo to allow him to obtain further medical treatment.[106]
[105] Record of Outcome (FDN 42).
[106] Record of Outcome (FDN 51).

The efficient and effective utilisation of this courts finite resources to conduct civil trials was reflected in the attention of Deuter DCJ when she had closely case managed this action and set a trial date.
On 5 April 2023, Deuter DCJ had given Mr Zollo leave to file and serve a sixth revision of his claim by 28 April 2023, and set a timetable for Telstra to file a defence to that sixth revision by 19 May 2023, and ordered Mr Zollo serve any further medical evidence by 11 August 2023, and Telstra serve further medical evidence by 6 October 2023. Her Honour had set a trial for 20 November 2023.[107]
[107] Record of Outcome (FDN 56).
On 8 May 2023, Mr Zollo had filed his sixth and final revised claim.[108] On 12 July 2023, Deuter DCJ had explained Mr Zollo had to call at trial medical witnesses to prove his case and he should issue subpoenas for their attendance.[109]
[108] Record of Outcome (FDN 58).
[109] Record of Outcome (FDN 63).
On 24 August 2023, Mr Zollo told Deuter DCJ he had not arranged medical witnesses.[110] Her Honour again told him he could subpoena required witnesses.[111]
[110] Ibid.
[111] Record of Outcome (FDN 65).
On 11 September 2023, Mr Zollo told Deuter DCJ he would call Dr Menz and Mr Kossmann at trial and while Dr Menz had not provided a report, he was reviewing his notes to do so. He said while he intended to call Dr Wallace, no report had been obtained from him. Further, Mr Zollo told her Honour he had not arranged for an expert to provide an economic loss report but planned to get one.[112]Accordingly, her Honour ordered any supplementary reports from Dr Kossmann, Dr Menz or Dr Wallace be served by 6 October 2023.[113]
[112] Record of Outcome (FDN 65).
[113] Ibid.
On 10 October 2023, Deuter DCJ recorded no further or updated medical reports had been served and that Mr Zollo would not get an updated report from Dr Kossmann but had been awaiting reports of Drs Menz and Wallace.[114]
[114] Record of Outcome (FDN 69).
On 23 October 2023, Deuter DCJ recorded Mr Zollo had advised her he had received a medical report from Dr Wallace, would not be calling Dr Menz and had no report from him and that Dr Kossmann would be called to give evidence relating to his expert report dated 10 October 2018.[115]
[115] Record of Outcome (FDN 71).
Notwithstanding those directions, Mr Zollo had not obtained documents from his bank, ‘Workcover’, his accountants or Built It Pty Ltd.
I was not satisfied, in all the circumstances, Mr Zollo had been diligent in the obtaining of such documents from those parties, or in obtaining the advice or assistance he said he needed, nor in having his expert evidence ready to go or in respect of his preparation for trial generally.
At the commencement of this trial, Mr Zollo said he would call his treating specialist Mr Wallace, going to his injury, treatment, and loss. He had not though adequately arranged for Mr Wallace to give evidence. Ultimately, he told me Mr Wallace had been unable to attend trial as he had been required interstate.[116]
[116] T500.10- T502.38; T646.34- T647.1; See Closing Submission of the Applicant (FDN 87) at [20].
Documents relied on to prove his loss and damage- the PAYG Payment Summary for the year ending 30 June 2014[117] and the Employment Contract with Built It dated 15 May 2013 – had been subject to highly critical findings by this Court and the SAET. Mr Zollo knew that to be the case; even accepting his assertion he had not read the Full Bench decision of SAET.
[117] Marked MFIA4.
He could have attempted to prove his past earnings by other documents. Mr Zollo though had not indicated, before or during the trial, the steps he had taken to do so. He did not intend to contact the liquidator of Built It Pty Ltd.[118] He had not contacted the accountants who had prepared his 2016 and 2017 tax returns.[119]
[118] T891.1-17; Exhibit R21; T891-T911.
[119] T888.38-T892.9; His suggestion he would write them a letter was most unsatisfactory.
Was Mr Zollo injured as he said he was in his evidence?
What did his pleadings say?
In his claim, and in his reply, Mr Zollo pleaded what he said happened:
‘the concrete pit at the time of the accident was 30ml above the ground level which caused [me] to strike [my] shoe against the pit causing the [i]njury to [my] knee’;[120]
‘[My] left foot contacted part of the south-end of the pit cover and/or pit lip which was protruding above the surface of a concrete edge and the footpath, causing [me] to fall to the ground’;[121] and
‘…at the time of the incident when [I] struck the southern part of the pit with [my] left foot causing [me] to fall to the ground causing the injury to [my] left knee the concrete precast pit was 30ml above the ground level’.[122]
What did Mr Zollo say happened?
[120] Amended Claim filed 8 May 2023 (FDN 8) at [4.4].
[121] Ibid at [5.2].
[122] Reply by Applicant to Revision 2 Defence of Respondent filed 29 September 2023 (FDN 68) at [8].
In his evidence in chief, Mr Zollo said he had tripped on a telephone pit raised above level ground and had fallen on his knee.[123] He settled, after some confusing evidence in cross-examination, on having fallen, contrary to his reply, onto his right knee: [124]
[123] T38. 24-26: T40.18; T340.33- 34.
[124] T40.35.
A.    My left or right - right leg's knee - knee.
Q.    Right knee.
A.    Left, left.
MR SCHATZ:       Sorry, I'm not understanding. I can hear him saying both there.
HIS HONOUR
Q.    I can hear you saying both. So, you tripped and then you fell on your knee.
A.    Yeah, this one (INDICATES).
Q.    What knee is that.
A.    That's my right leg's knee. Left leg knee. Left leg knee.
Q.    Well, you've said right and left.
A.    No, no. This is my left - we call left leg knee.
Q.    I just want to understand. You told me you tripped on the lip and then you fell onto your knee, right.
A.    Yeah, yep.
Q.    What knee did you fall onto.
A.    The one that's injured.
Q.    Yes, but what knee is it. Is it your left knee or your right knee.
A.    The right leg here.
Q.    Your right knee.
A.    Yeah.
Q.    You fell onto your right knee.
A.    Yeah, yeah.
Approach to assessment of Mr Zollo as a witness
Mr Zollo was the only witness at trial.
While he tendered photographs of a Telstra pit,[125] it was different to the one he said he had fallen on.[126] Those photos, taken on 15 February 2018, were indicative only of what the pit he tripped over had been like.[127]
[125] Exhibit A37.
[126] T570.27-38.
[127] T570.1; Mr Zollo said his solicitors had asked him to take those photos.
Mr Zollo was strongly challenged about his account of how the incident had occurred. It was put to him his account was false and had not happened.
Telstra submitted on the whole of the evidence, I should reject that the incident had happened as Mr Zollo had said it did.
My assessment of Mr Zollo, as it would be with any witness, involved my consideration of whether he had been honest and reliable and accurate.
I was entitled to and did consider the way he gave evidence and how he stood up when being cross-examined. While I was cautious to attribute significant weight to matters of demeanour, for reasons that will be elaborated, and as demonstrated by the evidence just recounted about which knee he had injured, Mr Zollo was a challenging and at times unhelpful witness.
I also kept in mind the impact of the elapse of time on memory. The incident was said to have occurred many years before the trial, in March 2016. By trial Mr Zollo was 75. He was a very poor historian and also professed a deficiency in understanding because he said English was not his first language.
It was a challenge also to follow and piece together his evidence because he was both a witness and his own advocate. He tended to conflate those roles, and blend what he said in submission as evidence of and as proof of his claim.
As I have only his account, and Mr Zollo was obviously self-interested, it was in his interest to give evidence favourable to his case. I have exercised caution about his evidence for that reason.[128]
Assessment of Mr Zollo as a witness
[128] Richardson v Armistead [2000] VSC 551 per Hansen J at [36], citing Morrissey v Clements [1885] Vic Law Report 4; (1885) 11 VLR 13 at [24]; In re Hodgson; Beckett v Ramsdale (1885) 31 ChD 177; June v Brolly [1891] Vic Law Report 100; (1891) 17 VLR 467 at 471; Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544 at [548]-[549]; Thwaites v Ryan [1984] Vic Law Report 7; [1984] VR 65 at [78]-[79].
Having observed Mr Zollo closely during his evidence, I assessed him to be a difficult, argumentative, and combative witness. He interrupted often and did not let questions complete before speaking. He was often belligerent and was rude to me and counsel. He would raise his voice and shout over the top of counsel and assume a posture and manner of great offence when challenged on his recall or on elements of his case. He would repeat unresponsive answers or repeat standard phrases in answer to straightforward questions. His lapses of memory were many. His recall of his lengthy history of litigation was very poor. He disclaimed knowledge about how this and his other cases had been run. He was vague and unhelpful about things which I would expect him to remember.
I have recounted in these reasons some but not all instances which have founded that assessment of the type of witness Mr Zollo was. I have considered the whole of the evidence in this case in reaching those conclusions.
I have further concluded some of his evidence was incredible, unreliable, and most unsatisfactory. That impacted negatively upon his credit and reliability. For the reasons I will elaborate, I have not accepted to the requisite standard his evidence about how this incident happened.
Use made of documents created closer to 30 March 2016
I have preferred recorded facts or inferences which can be drawn from recorded facts contained in objective documents which detailed Mr Zollo’s recollections about what had happened, to the evidence given by Mr Zollo about what was recorded in those documents.[129]
[129] Fox v Percy [2003] HCA 22; (2007); 214 CLR 118; (2003) 197 ALR 201 per Gleeson CJ, and Gummow and Kirby JJ at [31].
Particularly, the notes of his GP Dr Ling made on 1 April 2016, and a Telstra form completed on his behalf detailing his version of events and a Sportsmed declaration dated 6 April 2016, were admitted into evidence.
Each were apparently genuine documents containing writing from which statements of fact were implicit or from which statements of fact could be inferred.[130]
[130] Evidence Act 1929 (SA), s 52.
They were also apparently genuine documents purporting to be business records of the GP, Sportsmed and Telstra admissible without further proof and as evidence of facts stated in the record, and of facts inferred from the record wholly, or in conjunction with other evidence.[131]
The notes of Dr Ling
[131] Ibid, s 53.
Dr Ling noted his appointment with Mr Zollo the day after this alleged incident in his practice records. They were tendered by Mr Zollo.[132] Dr Ling recorded Mr Zollo had ‘twisted…[his]…knee when walking last night. Iced it. Started to feel pain in knee, no obvious twisting motion’.[133]
[132] Exhibit R46.
[133] T428.30-429.2.
Asked whether he had told Dr Ling on 1 April 2016, ‘anything…about a fall or a concrete pit’, Mr Zollo said he could not remember but assumed he would have said something about that.
Mr Zollo sought to explain why Dr Ling had not recorded in his notes what he assumed he had told him. He said Dr Ling had not written down what he assumed he had said.[134] He said Dr Ling’s notes were ‘not precise’[135]
[134] T429.24-34.
[135] T430.2-5.
The evidence of Mr Zollo about what he had reported at that consultation rose no higher than assumption. Dr Ling was not called. I prefer the appointment notes Dr Ling made on 1 April 2016, as a record of what Mr Zollo reported had happened, to the assumption made by Mr Zollo in his evidence more than seven and a half years later, about what he would have told Dr Ling.
The Sportsmed declaration
Following that appointment, Dr Ling referred Mr Zollo to Sportsmed for an MRI on 1 April 2016.[136] Mr Zollo saw Dr Menz there on 5 April 2016. Dr Menz operated on Mr Zollo at Sportsmed on 11 April 2016.[137]
[136] T44; Exhibit A1.
[137] Ibid.
Telstra tendered a ‘Sportsmed SA’ document entitled ‘Declaration Concerning Private Health Fund Claim’. It was dated as being completed by Mr Alessandro Zollo on 5 April 2016, the day he first saw Dr Menz.[138]
[138] Exhibit R24; T1022.
The declaration is the type of document commonly required to be completed by patients before an operation. It purportedly contained the handwriting and signature of Mr Zollo.
The declaration had at least four important purposes.
First, it was a declaration by a privately insured patient called Alessandro Zollo of information to support a private health claim. In that respect, it correctly recorded detail about Mr Zollo’s health fund and cover.
Second, it gave the consent of Alessandro Zollo, irrespective of his private health cover, to be responsible for the fees incurred.
Third, it asked Alessandro Zollo how he had suffered his injury.
Fourth, it obtained a pre-surgery health history of the patient, including as to any heart problems, reactions to anaesthetic or previous hospitalisation.
Mr Zollo accepted he had joined BUPA in 2006, as the form had recorded in the section to be completed by the patient.
Mr Zollo accepted he had not changed his cover in the 12 months before 5 April 2016, as the form also had noted.
The declaration had asked, ‘Is there any right to claim workers compensation, third party insurance or damages from any other source?’ It was answered ‘NO’.
The declaration had asked about the ‘type of accident e.g. road, work, home, sport, other’. That had been answered ‘WOKING’. Mr Zollo was asked in his cross- examination to read that word and, without hesitation, said ‘walking’.
The Declaration asked further of the patient ‘What is the cause of your injury?’ That was answered ‘WOKING TUEST’. Mr Zollo, in cross-examination, without hesitation, read those words as ‘Walking twist’.
Mr Zollo was asked if he had signed that completed declaration:[139]
[139] T434.33-T436.23.
Q. That is your signature on the signed part near the date, isn't it.
A. I can't recall that.
HIS HONOUR
Q. Well, you're being asked not whether you recall it, you're being asked whether that's your signature, is that your signature.
A. That's a bad signature.
Q. That's still not answering the question, is that your signature.
A. I can only say it doesn't even look like my signature.
Q. Well, I'm asking you, is it your signature or not.
A. No, it's not my signature.
Q. It's not your signature.
XXN
Q. So you deny that this declaration concerning private health fund claim from the business records held by Sportsmed dated 5 April 2016, which is when you went to see Dr Menz about getting a surgical procedure on 11 April, is not signed by you, is that what you're asking his Honour to find.
A. Well, it's not, what do you call it, it's not my signature, it's not my - all the writing isn't mine.
Q. It's important to be clear about what you're suggesting, are you suggesting someone else did a declaration for you -
A. Maybe.
Q. - to Sportsmed.
HIS HONOUR:      You might just want to take him to the signature on -
A. Maybe, what's -
…
A. Maybe it was done at, what do you call, maybe they've done it for me.
…
Q. So over the page there's an informed financial consent, that's signed at the bottom of 195, is that your signature. I'll suggest to you that what's happening here is you're being warned about the risks of the procedure you're going to undertake and that you've been asked to sign the document to confirm that you've had those things explained to you - sorry, not risks, costs.
HIS HONOUR:      The cost.
XXN
Q. The costs, I withdraw that.
HIS HONOUR
Q. You're being told what the cost is, if you have the procedure and you're being asked to sign that you understand that and you're being asked whether that's your signature at the bottom of p.195.
A. Somebody's done it for me.
Q. So the answer is no, that's not your signature.
XXN
Q. You're denying that.
HIS HONOUR
Q. You're denying it's your signature.
A. Well, it doesn't look like my signature.
Q. Yes or no.
A. No.
Mr Zollo later said his deceased daughter had signed the declaration and that he ‘might have gone with her’ to Sportsmed.[140]
[140] T438.13-23.
Mr Zollo’s daughter had gone to school in Australia, had graduated from university and had worked as a ‘Junior primary school teacher’. Mr Zollo accepted he would not expect her to make the 'type of mistake’ of misspelling the words ‘walking’ and ‘twist’. He accepted his daughter would have completed the declaration correctly, and that he could not spell the words ‘walking’ or ‘twist’.
Confronted with that cross-examination, Mr Zollo then said he had ‘maybe’ completed the declaration, except where it had been ticked he did not claim damages. He said in respect of that, ‘as you can see somebody else done. This is not my writing’.[141] He neither elaborated whose writing it was or why it could be seen to be the writing of someone else.
[141] T656.7-29.
I find Mr Zollo completed and signed that declaration and that what is contained in it in his handwriting is information attributable to him. I reject his evidence he did not complete and sign the declaration, as implausible.
I find the detail given to Sportsmed about how Mr Zollo had been injured on 30 March 2016, reflected his recollection about what had happened as of the date he completed that declaration on 6 April 2016.
In making those findings, I have had regard to the purpose and importance of the declaration, the patient information sought, the spelling mistakes made, that Mr Zollo accepted he could not spell correctly the misspelt words ‘walking’ and ‘twist’ and that he had read them correctly, the educational background of Mr Zollo’s daughter and the consistency between what was noted about how the injury had occurred in the declaration and the similarity with what Dr Ling had recorded about that a few days earlier.
Mr Kossmann attendance
The cross-examination of Mr Zollo about his consultation with Mr Kossmann detailed above had followed much the same pattern as his evidence about his consultation with Dr Ling and the Sportsmed declaration. I have had regard to the cross-examination about the Kossmann report in my assessment of Mr Zollo as a witness, going to his honesty and reliability.
Mr Zollo accepted Mr Kossmann in October 2018, recorded he had told him he stepped on a Telstra pit where the lid had been tilted and had fallen due to the tilted lid.[142] That record made by Mr Kossmann had been consistent with what Mr Zollo had said in a Telstra form completed some six months after, which I will deal with below.
[142] T855.25-36.
What Mr Kossmann recorded, however, was a different version of events from what I have found Mr Zollo told Dr Ling the day after he allegedly fell and what Mr Zollo had recorded in the Sportsmed declaration seven days after 30 March 2016.
Mr Zollo had been asked whether he had told Mr Kossmann what he had recorded. He replied ‘No, no. I wouldn’t lie to people’.[143] Asked ‘[a]nd you’ve never said anything like that, you’ve never said anything like that you fell because you trod on a tilted lid’,[144] Mr Zollo responded emphatically and dramatically, ‘No. No way in the world I could say that’.[145]
[143] Ibid.
[144] Ibid.
[145] Ibid.
Mr Zollo said Mr Kossmann had ‘made a mistake and [he] had recorded something else’.[146] Mr Kossmann was not called about what he had recorded in that report of his consultation with Mr Zollo.
[146] T4273-8.
The Kossmann report was not tendered, and I have limited my consideration of the cross-examination of Mr Zollo about that report, to any impact on his credit and reliability. I find his evidence about that consultation and that Mr Kossmann had got it wrong, implausible and incredible and consider it diminishes his creditability and reliability.

That cross-examination was another example of the readiness of Mr Zollo to deflect with speculation and unfounded assertion, and to blame others, when confronted with evidence which might not support or which might hurt his case.
The Telstra Personal Injury Accident Form
As for the ‘Telstra Personal Injury Accident Form’,[147] Mr Zollo provided it to Telstra, on 5 October 2016. He accepted in cross-examination that form had been completed on his behalf and he had signed it.[148]
[147] Exhibit A38.
[148] T845- 846.14; T850- T860.23; T862.
Under the section entitled ‘Claim Details’, the question ‘How did the incident happen?’ had been answered, ‘Tripped over the Telecom pit’.
Another question had enquired ‘Why do you believe Telstra was responsible for the incident?’ It had been answered, ‘It was too high off the ground, the lid was not secure and was leaning and no signs around the area’.
Having been shown the form, Mr Zollo did not accept he had ever said anything like that he had fallen as he ‘trod on a tilted lid’. He did not accept that the ‘leaning lid’ which Mr Kossmann said he had told him about, and the words ‘leaning’ and ‘lid’ as appeared in the form, might be similar things. Mr Zollo was adamant he had never claimed having ‘trod on top of a lid that was leaning’.[149]
Three versions of events given by Mr Zollo
[149] T856.7-10.
It was put to Mr Zollo he had given differing accounts of his injury because he could not remember what he had said previously. Mr Zollo said ‘Look, it might be - what do you call it? As I said, it might be the English language. You can say that, yes. But I can tell you now that matches what's up there’.
I find Mr Zollo had given three different versions of the event on 30 March 2016, when he said he injured his knee. First, that he had twisted his knee while walking, as told to Dr Ling and as contained in the Sportsmed declaration. Second, that he had tripped over the pit as it was too high off the ground and the lid was not secure and leaning, as he said in the Telstra form and, finally that he had tripped on the protruding lip of a pit as he said in his evidence.
I have not accepted the evidence of Mr Zollo about what had happened on 30 March 2016. I am not satisfied on the balance of probabilities Mr Zollo tripped as he said on oath at trial. Particularly, that is because Mr Zollo had given two earlier inconsistent versions of the incident, closer to the event, as recorded in the notes of Dr Ling, the Sportsmed declaration and in the Telstra Personal Injury Form.
That conclusion is further supported by my assessment of his evidence about the Kossmann report, the 2014 PAYG Payment Summary, the Employment Agreement and the Remittance Advice and the findings of SAET and this Court in other actions as implausible and incredible.
Evidence about other documents signed by Mr Zollo
Finally, that conclusion is also supported by my assessment of his evidence about other documents he said he had signed and his disregard for the importance of signing documents and his approach to blame others.
In respect of his original claim form to Return To Work, which had included an endorsement it was an offence to make a misleading statement, Mr Zollo said he had not read it before signing it. He said, ‘I’m not a lawyer’, that he had trusted the company and had just gone into the office and signed the claim.
As for a form he signed prepared by his lawyer, he said, ‘well, that doesn’t mean that because [I] sign and [my] English is not 100%, [I am] wholly responsible’.[150]
[150] T859.20-26.
As for a signed Return to Work form he said had incorrectly described him as a ‘director’, Mr Zollo referred to a person who had worked for Built It Pty Ltd and said ‘the girl must know better’, ‘she put me down as a director’.[151]
[151] T507.12-24.
In respect of another signed workers compensation document, he said his signature ‘doesn’t mean I read it, I was – they used to offer me to sign it’.
Finding about evidence of Mr Zollo about what had happened
For all those reasons, I consider Mr Zollo gave incredible and implausible evidence and evidence inconsistent with and not supported by documents created much closer to the time of these events. He was a very poor historian, unreliable, inaccurate and he would change his evidence to suit his interests or to reflect that he was cornered. His evidence about whether he had completed the Sportsmed form is a good example of that.
Having not been satisfied Mr Zollo suffered the injury the subject of his evidence, I have found Mr Zollo did not establish his claim and that Telstra is entitled to orders dismissing his claim on that basis alone.
Did Telstra owe a duty of care to Mr Zollo?
As to whether Telstra had owed Mr Zollo a duty of care, and as to whether Telstra had breached any such duty owed, that assessment required an assumption that Mr Zollo established the injury he alleged had occurred as he said.
That is, I assumed he had tripped on a telephone pit raised 30- 35mm above the pavers of the footpath and had fallen and injured his right knee.[152]
[152] Mr Zollo had pleaded the pit had been ‘30ml’ higher than the pavers which had surrounded it but did not call any expert about that or the design or construction or maintenance of the pit. He recalled observing the pit protruded ‘30 or 35 mm’ but he had not measured the height, it was his estimate from his recollection from 30 March 2016; T462.20-T463.15.
In Ghantous v Hawksbury City Council,[153] a local council had been found below to have been negligent when a pedestrian tripped and fell while walking along a concrete footpath which had been 50mm higher than its surrounding verge in places and where that subsidence had been due to erosion.
[153] Ghantous v Hawksbury City Council [2001] HCA 29; (2001) 206 CLR 512.
The High Court held the plaintiff had to show the footpath was ‘dangerous’.[154] That did not mean merely the footpath could have possibly occasioned harm. Unevenness which could result in a stumble or fall of a pedestrian would not be enough as not all footpaths are perfectly level.[155] The Court observed many footpaths are unpaved and people are regularly required to walk on uneven surfaces on both public and private land.[156]
[154] Ibid, per Gleeson CJ at [5]- [7].
[155] Ibid.
[156] Ibid.
The High Court approved the observation in Littler v Liverpool Corporation,[157] that the onus on local authorities in such circumstances is not onerous because ‘uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted.[158] The Court observed a highway is not to be criticised by the standards of a bowling green’.
[157] Littler v Liverpool Corporation [1968] 2 All ER 343.
[158] Ibid per Cumming- Bruce J at [345].
Pedestrians, it was further held, would ordinarily be expected to ‘exercise sufficient care’ by looking where they are going and by perceiving and avoiding obvious hazards, like uneven paving, tree roots or holes.[159]
[159] Boroondara City Council v Cattanach [2004] VSCA 139 per Chernov JA at [15].
The Court accepted some allowance must be made for inadvertence and dangers not readily perceived, like inadequate lighting or the nature of the danger or area.[160] In those circumstances, it was held, there may be a foreseeable risk of harm even to someone taking reasonable care for their own safety.[161]
[160] Ghantous supra per Gleeson CJ at [5]-[7].
[161] Ibid.
Such obvious hazards though, observed the Court, are distinct from dangers in the nature of traps, which may call for some protection or warning.[162]
[162] Ibid.
As for the duty of care owed in respect of things constructed into footpaths, like the Telstra pit in this case, it would be ‘imposing too high a standard’ to oblige a respondent to periodically inspect ‘a large number of pits’ so as to ‘determine whether or not their lids had become dislodged or broken’.[163]
[163] Rickards v Australian Telecommunications Commission (1983) 3 NSWLR 155 per Priestley JA (with Hutley and Glass JJA agreeing) at [157G].
In Boroondara City Council v Cattanach,[164] an appeal was allowed against a finding a council had been liable for failing to repair a 20mm high defect in a footpath where the plaintiff claimed to have tripped and fallen.
[164] Boroondara supra per Chernov JA (with whom Winneke P and Bongiorno AJA agreed) at [15].
The Court of Appeal held the local authority was ‘not under a duty to prevent or eliminate all dangers in footpaths.’[165] Further, it was held, where an authority knows or ought to know of ‘an impediment in a footpath’ then:
it will [ordinarily] owe a duty to render it harmless to users of the path only if the danger arising from it would not be obvious to an ordinary, reasonable pedestrian exercising proper care for his or her own safety … whether the fault in the pavement and the danger it poses would have been relevantly obvious depends on the circumstances of the case … it is for the plaintiff to establish that the hazard was not one which, with the exercise of reasonable care by the plaintiff, could have been seen and avoided.[166]
[165] Ibid.
[166] Ibid.
In this case, Telstra had not been under a duty to prevent or eliminate all risks or dangers to users of the footpath near the pit.[167] Its duty had been limited to taking reasonable care to eliminate or reduce hazards a pedestrian, like Mr Zollo, taking reasonable care for their own safety, would not see and avoid.[168]
[167] Ghantous, supra at [5]-[7] and [163]; Nightingale supra, at [44] and [72]; Russell, supra at [47].
[168] Ibid.
That the lid of the pit had protruded by 30 to 35mm above the paved footpath, represented a common and foreseeable risk which Mr Zollo would ordinarily be presumed to be aware of when walking on a paved footpath.[169]
[169] That uneven surfaces and differences in level of ‘about an inch’ may cause a pedestrian to be temporarily off balance so as to trip and stumble and are ‘characteristics [ which] have to be accepted’ was considered by the High Court in Ghantous, supra at [7].
Mr Zollo did not give evidence, and there was no expert evidence, that any protrusion constituted a hazard or danger associated with the pit itself, such as to be a ‘trap’, or that any form of warning should have been given by Telstra in that respect.
To the contrary, Mr Zollo said: the pit was ‘in the middle’ of a ‘quite a straight footpath’; there had been no sharp bends or corners at the point where the pit had been; and there had been no obstruction like trees or bushes or anything in the middle of the footpath that would have obscured his view as he approached.
Further, Mr Zollo said between 2007 and 2016, he had walked past the pit about 10-15 times without tripping over it and falling.[170] He said as he had approached the pit he had a clear, unobscured view and would have noticed if there had been anything wrong, such as a ‘broken’ or ‘missing’ lid.[171] He said he had known the footpath around the pit had been ‘not level’ and tree roots could lift pavers.[172]
[170] T453.1-7.
[171] T453.1-7.
[172] T453.31-34.
Even further, Mr Zollo accepted the pit had been a ‘long rectangular object’ and a ‘different shape’ to the ‘jigsaw-puzzle’ shaped pavers around it.[173] He said he had ample time as he had approached. He said about the pit, ‘Now you can see that from Italy’.[174]
[173] T464.27-T465.13.
[174] T465.28.
Finally, Mr Zollo accepted he had never reported any problem to Telstra. He said he had never noticed anything wrong with the pit on any of the 10 occasions he had walked back from the shops in the preceding 10 years or so.[175] He said he had never thought of the pit ‘that’s a problem’ or ‘that pit [was] not right’.[176]
[175] T471.1-17.
[176] T469.22-25.
Mr Zollo had not proven that anything about the pit constituted a hazard which, with the exercise of reasonable care, he could not have seen and avoided.
Mr Zollo pleaded also Telstra had failed to warn of the ‘danger posed by the pit lip and pit cover protruding above the surface of the footpath’.[177]
[177] Claim Revision 6 (FDN 58) at [6.9].
I had understood that to mean Mr Zollo’s case was that Telstra should have warned pedestrians of the unevenness of the footpath presented by the difference in height between the pavers and the pit of between 30 to 35mm.
As the High Court has observed, it is common knowledge paved footpaths have uneven surfaces and differences in levels such to cause a pedestrian to be temporarily off balance. There may be many reasons that might arise, including the pressure of tree roots and ordinary subsidence.
Consistent with that, Mr Zollo accepted the footpath had not been level and tree roots could lift pavers up. Mr Zollo also accepted he had a clear and unobstructed view of the pit along a straight stretch of footpath. He accepted he would have noticed anything particularly obvious or dangerous such as ‘something majorly wrong with it or broken’.[178] He explained he had not recognised the difference between the pavers and pit on 30 March 2016, because the difference had only been 30-35mm.[179]
[178] T453.1-7.
[179] T453.8-24.
Assuming then the pit had protruded 30-35mm above the level of the surrounding footpath, I have found any risk of tripping over that lip ought to have been obvious to a reasonable person, in the position of Mr Zollo, for several reasons.
The pit had been installed within a long, straight stretch of footpath. The footpath had been comprised of pavers that were a different shape, colour, and appearance to the pit. The pit and pavers surrounding it had not been obscured or obstructed from sight in any way. Mr Zollo had been familiar with the footpath which had been only 300m-350m from his home. He had walked that footpath without tripping and falling 10-15 times between 2007, and 2016. Mr Zollo accepted nothing material had changed in respect of the footpath in that time.
Mr Zollo also said the paved footpath near the pit has been in place for ‘30 years, maybe more’ but had led no evidence about who had installed it, or when it had been installed. Mr Zollo, by reference to his long-term residence in the area, thought the pit had been installed sometime in the 1960s or 1970s but led no evidence about whether it had been level with the surrounding footpath at that time, or as to its maintenance in the decades thereafter.
Finally, Mr Zollo had never reported anything defective about the pit to Telstra before 30 March 2016. He had led no other evidence there had been any report of any issue with the pit by anyone else.
The evidence had been insufficient to allow me to find who had constructed, installed, or caused the pit to be installed or as to whether its construction or installation had given rise to a risk it would protrude above the level of the surrounding footpath.
There had also been no basis in the evidence to find Telstra had known, or ought to have known, any part of the pit had been protruding above the surrounding pavers at any time before 30 March 2016. There had been no evidence to support any finding Telstra negligently installed the pit or failed to adequately maintain it.
For those reasons, making the assumptions detailed, I have found Telstra did not breach any duty of care owed to Mr Zollo. Further, I have found any risk posed to Mr Zollo by the lip of the protruding 30-35mm, to have been an ‘obvious risk’.[180]
[180] Civil Liability Act 1936 (SA), Division 3.
Assuming his injury, Mr Zollo had not established it had been the fault of Telstra.
Did Mr Zollo suffer any loss from the alleged injury and what was the nature and degree of any such loss?
The onus was on Mr Zollo to prove his claimed injury and the loss for which he sought damages.[181]
[181] Battunga Country Lions Club v Paues [2021] SASCA 72 per Kelly P, Doyle and Bleby JJA at [39]-[41]. Amended Claim filed 8 May 2023 (FDN 58), [7.2] (the resulting disabilities) and [7.5] (the general effect of the injuries and the resulting disabilities on the applicant’s enjoyment of life).
My consideration of whether he had suffered any loss from his alleged injury and what had been the nature and degree of any such loss would have required findings as to several matters of fact. Particularly; whether Mr Zollo had sufficiently recovered from any injury he may have suffered such that he no longer experienced pain, suffering, or loss of amenity, or no longer required future medical or other treatment or did not suffer any impairment or deprivation of income or earning capacity because of the injury or whether any pain, suffering, or loss of amenity suffered by him was minimal; whether any injury prevented him from being able to resume all of his pre-injury employment, social, domestic, recreational, or other activities; whether his injury or any loss suffered had been caused or contributed to by his own negligence; and finally, what would have been his entitlement to any damages including any damages for lost past or future profits or earnings.
Given my findings made above which require dismissal of this claim, it is not necessary for me to make any findings as to whether Mr Zollo had established he had suffered any loss from his alleged injury and, if he had, what was the nature and degree of any such loss.
Of course, Mr Zollo had led no expert evidence about causation or as to his treatment, or as to the impact of his injuries at the time, since 30 March 2016, and into the future.
Conclusion
For the reasons explained, I have not been satisfied Mr Zollo suffered the injury the subject of his evidence and assuming that injury that Telstra had breached any duty of care owed to Mr Zollo and that any risk posed to Mr Zollo by lip of the protruding 30-35mm had not been an obvious risk.[182]
[182] Civil Liability Act 1936 (SA), Division 3.
As Mr Zollo did not establish his claim, Telstra is entitled to orders for its dismissal and judgment in its favour. As to costs, if not agreed, I will hear the parties further by way of written submission.