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[2025] ACTCA 19
appellant. Appeal allowed. The Supreme Court order was set aside and replaced with judgment for the plaintiff against Zgool and Xmplar in the sum of $300,200. The cross-appeal was otherwise dismissed. Xmplar...
The Court of Appeal corrected the damages calculation because the trial judge had reduced past as well as future damages for vicissitudes. Past loss could not be discounted in that way. The Court upheld the 25 per cent reduction to the future economic loss component, even though it was described as a buffer, because the buffer was assessed using numerical considerations and the evidence supported an increased allowance for the risk that the appellant's spinal condition would become symptomatic. The Court also upheld the findings against Xmplar. On the evidence, Xmplar coordinated the formwork work, directed where the appellant worked, and had a relevant role and capacity in addressing site conditions. The cross-appeal did not establish error on duty, breach or contributory negligence. The damages judgment was increased from $243,900 to $300,200.
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2,671 words · generated 05/10/2026
3 cited instruments linked from this judgment.
Ahmad Alananzeh was working as a labourer at a construction site in Denman Prospect, Canberra, on 21 April 2021. He fell while carrying plywood on a deck that was wet or affected by frost, and sustained injury. His employer was Zgool Form Pty Ltd, which did not hold the required workers compensation insurance. Xmplar Formwork Pty Ltd was the formwork contractor on the site. The Workers Compensation Default Insurance Fund Manager was joined as a defendant because of the employer's insurance position ([1], [4]).
At trial, the primary judge found that the accident occurred as Alananzeh alleged, that Zgool and Xmplar owed him duties of care, and that both had failed to take reasonable precautions. She found that the failure was a necessary condition of the harm, that Alananzeh was not contributorily negligent, and that his present pain and restriction were causally related to the accident notwithstanding an underlying spinal susceptibility ([7]). The judgment awarded $243,900 ([2], [9]).
The appeal concerned the damages calculation, particularly the reduction for vicissitudes. Xmplar cross-appealed against findings concerning its duty and breach, contributory negligence, and the vicissitudes reduction. The first respondent, Zgool, did not appear in the appeal. The Default Insurer's position was that it would only be liable if Alananzeh could not claim against Xmplar ([3]-[5]).
The evidential record about Xmplar's role was limited. Xmplar did not call witnesses. The Court explained that its restrained evidential approach left the primary judge to assess its responsibility from documents, Alananzeh's evidence and available inferences ([6]). The appeal was allowed because past loss had wrongly been discounted for vicissitudes. The cross-appeal was otherwise dismissed, and the damages judgment was increased to $300,200 ([88]-[89]).
The decisive damages error was the application of a 25 per cent reduction to the entire award. Before that reduction, damages were $325,200. The future economic loss component was $100,000. The respondents conceded that the reduction should have applied only to that future component, and the Court agreed ([9]-[10]).
The Court's explanation was that vicissitudes are future contingencies, such as sickness, accident, unemployment or industrial disputes, which may affect future earning capacity. A past loss is different: a contingency that would have defeated or reduced that past loss will already have manifested, so the past position can be assessed with greater precision. The Court therefore held that the reduction could not apply to past loss ([11]-[12]). It also noted that a 15 per cent discount is conventional in the ACT for future loss of earning capacity, although it may be adjusted for the particular case. Other heads of damages are not routinely discounted for contingencies in the Territory ([13]-[14]).
Alananzeh's second argument concerned the separate $100,000 buffer for future economic loss. The primary judge had described it as money to retrain and support him while retraining over two years. She had also found an asymptomatic degenerative spinal condition and considered that it might have become symptomatic independently of the accident. The trial judge used a 25 per cent reduction, rather than the conventional 15 per cent, to account for this possibility ([16]-[19]).
The Court rejected the argument that a buffer cannot be further reduced for vicissitudes. It observed that the boundary between a buffer and a numerical calculation is not sharply defined. A future loss assessment always involves weighing possibilities. In this case, the buffer was informed by numerical considerations from the past loss analysis and the primary judge had treated vicissitudes as a separate factor. That made a mathematical adjustment permissible ([23]-[26]).
The Court also found no error in the increased 25 per cent discount. There was evidence of the underlying spinal condition, heavy physical work in construction, and a possible aggravation from a fall. Medical evidence did not provide a statistical likelihood or timeframe for the condition becoming symptomatic. Against that background, the primary judge's assessment was not shown to be erroneous. The Court explained that a 10 per cent reduction for a condition that might manifest at any point in a two-year period represents more than a 10 per cent chance of manifestation at some point, because manifestation at the beginning would affect the full period ([27]).
On Xmplar's duty, the Court considered the way the work was organised and the available evidence about who controlled it. Xmplar coordinated formwork subcontractors, attended the pre-start meeting, and directed the workgroups to particular zones. The Court accepted that there was no evidence that Core, the head contractor, directly instructed Alananzeh or his employer about where to work or how to deal with icy conditions ([54]-[57]). The insurance claim form was relevant to Xmplar's knowledge of wetness due to ice. The Court considered it open to the primary judge to treat the form as an admission of knowledge, particularly in the absence of contradictory witness evidence ([59]-[64]).
The Court addressed the failure to call Benny Mirto, who had attended the pre-start meeting and was identified as Xmplar's supervisor or foreman. Applying Jones v Dunkel, it held that the absence of a person able to explain the facts could make an inference already open on the evidence more confidently available. It did not mean that every statement in the claim form had to be accepted: the assertion that workers had been instructed to squeegee the deck was contradicted by Alananzeh's evidence and was not accepted ([62]-[65]).
As to breach, the primary judge had found that reasonable precautions included ensuring the deck was safe to walk on, with measures such as a squeegee, mop or towel, or a barrier preventing access to unchecked areas ([69]-[72]). The Court found that the primary judge was entitled to conclude that no instruction to clear the deck had been given. The appellant's evidence had not been effectively challenged, and Xmplar had not called the supervisor who could have addressed the matter ([74]-[76]).
Finally, the Court rejected the contributory negligence ground. Alananzeh knew there was frost or moisture, but his evidence was that he had walked slowly and carefully on earlier trips and slipped after being urged to hurry while carrying plywood. The Court held that this was not evidence of the kind of inadvertent or thoughtless conduct on which Xmplar relied. It found no error in the primary judge's conclusion ([86]-[87]).
The judgment did not purport to establish a new general method for assessing all personal injury damages. It applied existing principles to the particular record and corrected the scope of the discount used in the trial judgment.
Before the appeal, the trial award applied a 25 per cent vicissitudes reduction to the whole damages figure, including past loss. The Court's decision makes clear that this was not a permissible application of the doctrine: past loss is not to be reduced for future contingencies when the relevant period has already elapsed ([9]-[11]). The operative award consequently reflected a 25 per cent reduction only to the $100,000 future economic loss component, increasing total damages to $300,200 ([15], [88]-[89]).
For future earning-capacity loss, the Court described 15 per cent as the conventional ACT reduction, while stressing that the individual circumstances may justify adjustment ([13]-[14]). The judgment therefore supports a distinction between the conventional starting point and a case-specific assessment. It does not state that 25 per cent is generally appropriate whenever a plaintiff has a pre-existing condition. The conclusion depended on the evidence in this case, including the nature of the condition, the work, and the absence of medical evidence quantifying the likelihood or timing of symptoms ([27]).
The Court also clarified that using the word “buffer” does not itself prevent a separate vicissitudes adjustment. The method depends on how the award was reached. If it is a pure buffer that already encompasses the range of relevant future possibilities, an additional reduction may be inappropriate. But where the buffer has a numerical basis and vicissitudes have been treated as an excluded factor, a further mathematical adjustment can be made ([24]-[26]). That is a practical clarification rather than a rigid formula.
On contractor duties, the judgment applied the existing authorities concerning principals, contractors and workers employed by subcontractors. It emphasised the factual role of coordination, direction, knowledge of risk and capacity to take precautions. Xmplar's lack of overall control of the entire site was not decisive because it had responsibility for coordinating formwork subcontractors and allocating their work areas ([30]-[31], [65]-[67]). The judgment does not establish that every contractor coordinating subcontractors owes every worker a duty concerning all site conditions. Its conclusion rests on the evidence of Xmplar's particular role.
At [11], the Court said that a contingency affecting a past loss “would have already manifested itself” and could be assessed with greater precision. In plain English, a past period is no longer uncertain in the same way as a future period. The court assesses what actually happened during the past period; it does not apply a general future-risk discount to it.
At [13], the Court described 15 per cent as the conventional reduction for future earning-capacity loss in the ACT, subject to adjustment. This means that the figure is a conventional reference point, not an automatic outcome in every case. The particular evidence can support a different percentage.
At [23], the Court observed that the boundary between a buffer and a numerical calculation is not clearly defined. In plain English, labels do not settle the question. An award called a “buffer” may still be based partly on arithmetic or defined periods, and the court may examine the actual method used.
At [26], the Court explained that a numerical buffer may exclude vicissitudes and then account for them by a mathematical adjustment. The point is that there must be no double counting: the court should consider whether the buffer already incorporates the risk before adding a separate discount.
At [63], the Court described the Jones v Dunkel principle as allowing an inference favourable to a party to be drawn “more confidently” when a person able to explain the facts is not called and there is no sufficient explanation. This does not reverse the burden of proof or automatically prove a disputed fact. It concerns the confidence with which an inference already supported by evidence may be drawn.
At [76], the Court noted that limiting the evidence can leave enough material for a judge to make the very finding a party sought to avoid. In plain English, a party's decision not to call relevant evidence can leave the other party's evidence unanswered. The Court treated that as an evidential risk in this case, not as a general rule that failure to call a witness proves liability.
The damages reasoning is particularly relevant where an award includes both past and future economic loss and a global or percentage reduction has been applied to all heads. The Court's distinction means that the analysis should identify which losses are past and which are future. The judgment holds that a vicissitudes reduction cannot be applied to a past loss ([9]-[15]).
It is also relevant where a future economic loss figure is described as a buffer but has been calculated by reference to a specific period, amount, or numerical considerations. The Court examined the actual basis of the $100,000 award rather than treating the label as conclusive. Where the assessment separates vicissitudes from other considerations, a separate adjustment may be permissible ([22]-[27]).
The duty-of-care reasoning may be relevant where a contractor coordinates subcontractors, allocates their work areas, receives safety information, and can address hazards in the areas where those workers are directed. The Court's focus was not simply that Xmplar was a contractor. It was that it coordinated formwork work, directed where workers were to go, had relevant information, and had some capacity to address safety concerns ([54]-[67]).
The evidential reasoning may be relevant where a material witness appears able to explain a disputed issue but is not called. The Court relied on the limited evidence, the claim form, the appellant's testimony and the absence of evidence from Xmplar's supervisor. It also distinguished between a statement in a document that was consistent with the other evidence and a statement contradicted by sworn evidence ([60]-[65], [75]-[76]).
The contributory negligence discussion concerns a worker who knew of a visible hazard but had taken care earlier, was required to carry materials, and had not been shown to have a safe alternative path or relevant instructions. The Court treated the whole situation as important, including the pressure to work and the circumstances of the task ([79]-[87]). The judgment does not say that awareness of a risk can never support contributory negligence; it says the evidence in this case did not show error in the trial judge's finding.
The judgment is dated 25 June 2025. The supplied judgment contains no subsequent decisions applying, distinguishing or otherwise treating Alananzeh v Zgool Form Pty Ltd. It is therefore not possible, from this source, to describe how later courts have treated it.
The judgment itself refers to earlier authorities. For vicissitudes, it cites Wynn v NSW Insurance Ministerial Corporation and the text Assessment of Damages for Personal Injury and Death, as well as Western Australian authorities discussing a different conventional discount ([12]-[13]). For the contractor duty issue, it refers to Stevens v Brodribb Sawmilling Co Pty Ltd, Leighton Contractors Pty Ltd v Fox, and Sydney Water Corporation v Abramovic ([30]-[31]). For the missing-witness inference, it applies Jones v Dunkel ([63]-[64]). For contributory negligence, it discusses Sheldrick v State of New South Wales and the High Court decision in Sungravure Pty Ltd v Meani ([84]-[87]).
Those references explain the legal framework the Court used, but they do not provide evidence of later treatment of the 2025 decision. Any account of subsequent citation history would require sources beyond the supplied judgment.
The judgment leaves the practical boundary between a pure buffer and a numerically informed buffer dependent on the facts. It says that the boundary is not clearly defined, and explains why the method used in this case permitted a separate vicissitudes adjustment ([23]-[26]). It does not prescribe a test or a calculation method for future cases.
The Court also does not provide a general formula for adjusting the conventional 15 per cent discount where a pre-existing condition may become symptomatic. It upheld 25 per cent on the evidence before it, while noting that the medical evidence did not quantify likelihood or timing ([13], [27]). The judgment therefore leaves the assessment of other medical contingencies to the evidence and circumstances of each case.
The precise reach of a contractor's duty remains fact-sensitive. The Court upheld a duty relating to site conditions where Xmplar directed subcontractors to work, but the evidence of Xmplar's role was unusual and incomplete. The judgment does not determine how the analysis would apply where a head contractor directly controls safety, where the subcontractor has a more developed safety system, or where the contractor has no role in choosing the work area ([6], [50]-[67]).
The evidential effect of failing to call a witness is also limited by the Court's account of Jones v Dunkel. An absent witness does not automatically establish an opposing party's case. The principle is that an available inference may be drawn more confidently when the missing witness could have explained the facts and there is no sufficient explanation for the absence ([63]-[65]). The weight of such an inference will depend on the other evidence.
Finally, the judgment does not resolve the cross-appeal grounds that were not pressed or that were dismissed without a separate extended analysis. It records that Xmplar's ground concerning the appellant's credit was not pressed ([77]). The orders state that the cross-appeal was dismissed except insofar as it also asserted error in applying vicissitudes to all heads of damages ([89]).
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Alananzeh v Zgool Form Pty Ltd Citation: [2025] ACTCA 19 Hearing Date: 11 March 2025 Decision Date: 25 June 2025 Before: McCallum CJ, Mossop and Loukas-Karlsson JJ Decision: See [89] Catchwords: TORT – NEGLIGENCE – EXCESSIVE OR INADEQUATE DAMAGES – Appeal on basis that primary judge erred in the manner that she reduced damages for vicissitudes – primary judge reduced whole award of damages by 25 percent on account of vicissitudes rather than only reducing component of damages relating to future economic loss – reduction for vicissitudes cannot apply to a past loss – respondents conceded error – appeal allowed TORT – NEGLIGENCE – EXCESSIVE OR INADEQUATE DAMAGES – Appeal on ground that primary judge erred when discounting buffer for future economic loss – buffer awarded on basis that appellant will obtain funds to retrain, and have money to live on while retraining, for a period of two years – where appellant had pre-existing asymptomatic medical condition – where primary judge dealt with possibility of appellant becoming symptomatic by increasing vicissitudes discount – no clear delineation between cases where appropriate to award a buffer and those where appropriate to conduct a numerical calculation – no error in basing buffer for future economic loss upon numerical considerations that informed calculation of past economic loss – no error in reducing buffer to take into account vicissitudes TORT – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – Cross-appeal by second respondent as to existence and scope of duty of care – where appellant a formwork worker, first respondent a formwork subcontractor employing the appellant, second respondent the formwork contractor and third respondent the default insurer – where primary judge found that second respondent assumed a duty of safety for its subcontractors pertaining to conditions of the site where those subcontractors were being directed to work – no error disclosed in primary judge’s reasoning process Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT), ss 43(1)(c), 45, 102 Scaffolding and Lifts Regulation 1950 (ACT), s 73 Workers Compensation Act 1951 (ACT), s 170 Cases Cited: Alananzeh v Zgool Form Pty Ltd [2024] ACTSC 16 Jones v Dunkel (1959) 101 CLR 298 Lawson v Flavel [2001] WASCA 272 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Sheldrick v State of New South Wales [2007] NSWCA 105 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Sydney Water Corporation v Abramovic [2007] NSWCA 248; Aust Torts Reports ¶81-913 Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41 Villasevil v Pickering [2001] WASCA 143; 24 WAR 167 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 Texts Cited: H Luntz, Assessment of Damages for Personal Injury and th Death (LexisNexis Butterworths, 4 ed, 2002) Parties: Ahmad Alananzeh (Appellant) Zgool Form Pty Ltd (First Respondent) Xmplar Formwork Pty Ltd (Second Respondent) Workers Compensation Default Insurance Fund Manager (Third Respondent) Representation: Counsel D Shillington (Appellant) No appearance (First Respondent) A Muller SC (Second Respondent) D Crowe (Third Respondent) Solicitors Law Partners Personal Injury Lawyers (Appellant) No appearance (First Respondent) Wotton and Kearney (Second Respondent) Moray and Agnew (Third Respondent) File Number: ACTCA 22 of 2024 Decision Under Appeal: Court/Tribunal: Supreme Court of the ACT Before: McWilliam J Date of Decision: 26 June 2024 Case Title: Alananzeh v Zgool Form Pty Ltd Citation: [2024] ACTSC 16 THE COURT: Introduction
The appellant, Ahmad Alananzeh, was injured on 21 April 2021 while working as a labourer at a construction site at Denman Prospect in Canberra. He brought common law proceedings for personal injury in the Supreme Court against his employer, Zgool Form Pty Ltd, the first respondent (Zgool), and the formwork contractor on the site, Xmplar Formwork Pty Ltd, the second respondent (Xmplar). He subsequently joined, as a defendant in the proceedings, the Workers Compensation Default Insurance Fund Manager, the third respondent (Default Insurer), because the first respondent did not hold the required workers compensation insurance.
His claim was heard by a judge of the court (the primary judge), and he was awarded damages of $243,900: see Alananzeh v Zgool Form Pty Ltd [2024] ACTSC 16 (hereafter ‘J’). He appealed against the assessment of damages on the basis that the primary judge erred in the manner that she reduced damages for vicissitudes. Xmplar filed a cross-appeal, which challenged the primary judge’s findings in relation to the existence and scope of the duty of care owed by Xmplar, the findings in relation to breach of that duty, the findings in relation to contributory negligence, and the manner in which the primary judge dealt with a reduction in damages for vicissitudes.
The position of the parties before the primary judge and in the Court of Appeal
Zgool did not appear at the hearing before the primary judge or in the Court of Appeal. The judgment that the primary judge entered was against both Zgool and Xmplar. Although her Honour indicated that she would have made an apportionment of 50 percent liability as between Xmplar and Zgool, she did not do so, apparently on the basis that Zgool was likely to have no funds and, hence, the issue of apportionment would not, in practice, arise.
The position of the Default Insurer was that it would only be liable if the appellant could not make a claim against Xmplar. That was because of the operation of s 170 of the Workers Compensation Act 1951 (ACT), which limited the circumstances in which a person could make a claim against the Default Insurer to circumstances in which the person could not make a claim against any other person apart from the uninsured employer: s 170(1)(b). As a consequence, the primary judge did not enter any judgment against the Default Insurer.
The position of the parties remained the same in the Court of Appeal. Zgool did not appear. Xmplar sought to overturn the primary judge’s findings as to its liability. The Default Insurer sought to maintain the primary judge’s finding that Xmplar was liable because, in those circumstances, it would bear no liability.
Consequences of the position of the parties
The decision of the primary judge
The primary judge dealt with the proceedings by identifying 10 issues that she needed to resolve. Her Honour found the following: (a) the accident had occurred in the manner alleged by the appellant (Issue 1); (b) Zgool and Xmplar owed a duty of care to the appellant (Issue 2); (c) Zgool did not take reasonable care by failing to take reasonable precautions against the risk of injury to the appellant (Issue 3); (d) Xmplar failed to take reasonable precautions to guard against the risk of harm to the appellant (Issue 4); (e) Zgool and Xmplar had not breached a statutory duty arising under s 73 of the Scaffolding and Lifts Regulation 1950 (ACT) (Issue 5); (f) the failure to take reasonable precautions was a necessary condition of the happening of the harm for the purposes of s 45 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act) (Issue 6); (g) there should be no reduction for contributory negligence (Issue 7); and (h) notwithstanding an underlying susceptibility to a degenerative condition in the appellant’s spine, his current pain symptoms and restriction were causally related to the accident (Issue 8).
The primary judge then undertook an assessment of damages (Issue 9), with any question of apportionment being Issue 10. The only aspects of the assessment which are challenged relate to the reduction for vicissitudes, which was applied to all heads of damages rather than being confined to the award for future economic loss, and whether or not any reduction should be made on account of contributory negligence.
Appeal Ground 1: Reduction for vicissitudes
The appeal relates to the manner in which the primary judge reduced damages on account of vicissitudes. As pointed out earlier, the primary judge reduced the whole of the award of damages by 25 percent on account of vicissitudes rather than the component of damages relating to future economic loss. Before reduction on account of vicissitudes, the amount to be awarded was $325,200. The primary judge reduced the award by 25 percent to $243,900. Had she only reduced the award for future economic loss of $100,000 by 25 percent, the total award of damages would have been $300,200.
The appellant contends in ground one of his Notice of Appeal that the primary judge erred when discounting the assessment of all heads of damages for vicissitudes. Xmplar and the Default Insurer concede that the discounting of all heads of damages involved an error and that any reduction for vicissitudes should be confined to the component of the award relating to future economic loss. That concession is clearly correct.
A reduction for vicissitudes could not apply to a past loss because any vicissitude that undermined the entitlement to a particular category of past damage would have already manifested itself and, hence, could be assessed with greater precision.
So far as future losses are concerned, it is conventional to make a discount for vicissitudes so as to take into account the possibility that adverse events, unrelated to a plaintiff’s accident, may occur after the trial and affect a plaintiff’s earning capacity. The principal possibilities are sickness, accident, unemployment and industrial disputes: H Luntz, Assessment of Damages for Personal Injury and Death (LexisNexis th Butterworths, 4 ed, 2002) at [6.4.6]; Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 497-498. While contingencies may affect other heads of damages, they are not routinely allowed in the Territory. Rather, they would be dependent upon establishing their appropriateness in the circumstances of any particular case.
It is conventional to apply a 15 percent reduction in damages arising in the future from a loss of earning capacity on account of vicissitudes, subject to adjustment in the circumstances of any individual case. The conventional figure of 15 percent is adopted in the Territory, as in New South Wales. In Western Australia, the conventional discount is lower: Luntz at [6.4.5]; Villasevil v Pickering [2001] WASCA 143; 24 WAR 167 at [38]; and Lawson v Flavel [2001] WASCA 272 at [35]; Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41 at [26].
In the present case, the primary judge acknowledged the convention in the Territory of discounting by 15 percent for vicissitudes, but considered that a higher discount was warranted here because the appellant had an underlying degenerative condition that might get worse (addressed below). That reasoning was relevant only to future economic loss. There was no basis laid for any reduction for contingencies of the other heads of damages awarded for future loss.
Appeal Ground 2: Discount of buffer for future economic loss
The second ground of appeal is that the primary judge erred by discounting the buffer that she allowed for future economic loss which had been awarded on the basis that the funds would provide the appellant with money to retrain and give him some money to live on for a period of two years.
In order to understand this ground of appeal, it is necessary to explain the primary judge’s approach to damages for future economic loss. The primary judge referred to evidence that the appellant suffered from L5/S1 disc desiccation and a disc bulge which impinged on the S1 nerve root: J[147]. She recorded a “general consensus among the medical experts” that there was an underlying susceptibility or degenerative condition that was asymptomatic before the accident: J[152]. She did not accept the opinion of Dr Anthony Smith that the appellant had recovered from the accident within three months. She found that the current pain symptoms and restriction of mobility were causally related to the accident.
However, when assessing damages, her Honour considered again the consequences of the pre-existing condition. Consistently with the approach dictated by Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, her Honour considered that “there was some possibility that the plaintiff would have suffered an aggravation rendering his degenerative condition symptomatic”. She found that the evidence before the court was not of sufficient detail to permit any precision in a calculation based upon percentage chances but instead considered that “a less artificial and fairer approach” was to deal with the possibility of an aggravation by way of increasing the discount for vicissitudes. Her Honour said (at [166]): 166. Doing the best that I can with the evidence that is before the Court, I consider that a less artificial and fairer approach is to deal with that accepted possibility as warranting a greater discount when taking account of vicissitudes (25% rather than the discount of 15% commonly applied in this jurisdiction). Sickness is part of the vicissitudes of life and there is a real likelihood that this injury would have occurred regardless of the negligence, particularly where the work involved was heavy physical work in the construction industry, an occupation which is unlikely to sustain longevity of employment in the same way as less physically demanding jobs.
Within her reasons, the primary judge addressed damages for loss of earning capacity. So far as the future was concerned, the difference between the parties was relatively modest. The appellant sought a buffer for future economic loss of $250,000. Xmplar argued that an award of $58,292, being a loss of earnings over a 12-month period, would be appropriate. The reasons of the primary judge on this issue were as follows (at [191]-[197]): 191. In this case, the plaintiff graduated from a university in Jordan with a degree in Special Education and had worked there as a teacher for several years with children with special needs. That is work that involves lighter or less physical duties. 192. Xmplar argued that this type of employment was available in Australia and that all the plaintiff really needed to do to make himself employable in that field was to become proficient in English sufficiently to take the requisite International English Language Testing System, known as the IELTS test. 193. The plaintiff confirmed that he did intend to take the IELTS test, which would assist his employment prospects, including resume working with special needs persons in Australia. He indicated that it would not be exactly the same work he did in Jordan, which involved a degree of physicality, as he was not able to do that with his movement restrictions. Significantly, the plaintiff did not submit that he had no capacity to work. Indeed, he impressed me as an intelligent man who is capable of work. 194. The plaintiff’s underlying rationale for a buffer for future economic loss was essentially that the plaintiff needs funds and time to retrain, whether that was in the English language or other training in a field of employment and that a period of 2 years was an appropriate amount of time. 195. I accept the plaintiff’s language skills in English are a significant barrier, although I am cognisant that a plaintiff who is injured and in pain, with no money to attend to his medical treatment and relying on friends for accommodation, will equally have no money to undertake English language or training courses. Following the accident when he was housebound, the plaintiff indicated that he would revise words in English to improve his vocabulary. 196. I consider that the accident and the subsequent symptoms have likely delayed the plaintiff attending to his retraining or English tuition, and that it may take 2 years to get the plaintiff back in a properly employable position in the open labour market. I have allowed a buffer of $100,000 inclusive of superannuation, on the basis that such funds will provide him with the money to retrain, and give him some money to live on while he does it, for a period of two years. 197. In making the decision to include superannuation as part of the buffer, I have had regard to the plaintiff’s submission that on other occasions, the Court has seen fit to award superannuation as an additional component. However, as cases such as Tattersall v Dormakaba Australia Pty Ltd [2023] ACTSC 390 at [121] demonstrate, that is not always the case. Here, where the buffer is inherently imprecise and the rationale for the buffer based on delay in retraining and upskilling, I was not persuaded that embarking upon a mathematical calculation of superannuation on top of a buffer was the appropriate course.
Cross-appeal: Existence and scope of duty of care
Primary judge’s approach
The primary judge addressed whether or not Xmplar owed a duty of care to an employee of an independent contractor at J[41]-[75].
The primary judge identified that the head contractor, Core Building Group (ACT) Pty Ltd (Core), was the principal on the project. Xmplar was a subcontractor to Core and Zgool a subcontractor to Xmplar. Her Honour referred to the decisions of the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 47-48 and Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 at [20]. Her Honour identified from Stevens the distinction between the duty owed by an employer as distinct from a subcontractor organising an activity. She also identified that the duty does not extend to retaining control over a system of work if it is reasonable to engage the services of independent contractors who are themselves competent to control the system of work. The primary judge at [45] quoted from Sydney Water Corporation v Abramovic [2007] NSWCA 248; Aust Torts Reports ¶81-913 at [98]-[99], where Basten JA (with whom Mason P agreed, Santow JA in dissent) noted that a principal may owe a duty to a worker who is an employee of an independent contractor, observing that the cases suggested that satisfaction of one of the following criteria may give rise to such a duty: (a) the principal directs the manner of performance of the work; (b) the work requires the coordination of the activities of different contractors; (c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge; (d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so; and (e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so.
Her Honour emphasised the statement in Sydney Water that the degree of control which the principal retains over the workplace and the statutory responsibility with respect to safety at the workplace may be critical considerations in relation to (e).
The primary judge identified that Xmplar had argued that there was insufficient evidence that it had any obligation to direct the system of work adopted by Zgool or its employees, to supervise the activities of the appellant, to provide him with manual or mechanical assistance, or manage the surface on which he was required to walk.
The primary judge identified that the contract between Xmplar and Core had been relied upon by Xmplar in its defence, but no party had put it into evidence. Her Honour was therefore left with the contents of Xmplar’s defence and a number of documents. Those documents were: (a) a Core risk assessment form dated 21 April 2021 at 6:45am; (b) the Xmplar Work Incident Report dated 21 April 2021; (c) an email sent by Core to other Core employees on 21 April 2021 at 4:39pm; (d) an Xmplar record of a toolbox meeting; and (e) several insurance claim forms.
Decision
The following facts inform the scope of the duty of care.
The head contractor was Core. Xmplar had a written contract with Core described as “Major Works Subcontract – Design and Construct (ACT and NSW)” dated 15 January 2021. Xmplar’s defence (at [3.3]) referred to it being relied upon “as is fully set out” in the defence. This appears to be intended to say, “as if fully set out”. Notwithstanding this pleading and the fact that incorporation by reference of the terms of the contract in the pleading may have constituted significant admissions, no party sought to refer to the terms of that contract on the appeal.
In contrast, the contract between Xmplar and Zgool was an undated verbal agreement pursuant to which some invoices were sent: Defence [4.1]. The only workers provided by Zgool were Mr Alzghoul and the appellant. The fact that the only contract between Zgool and Xmplar was verbal and the appellant’s own contract with Zgool was, so far as the evidence disclosed, a basic verbal one, tends to indicate the small and unsophisticated nature of the labour supply business operated by Zgool.
There were numerous other formwork subcontractors to Xmplar. There was no evidence to indicate that any of those subcontractors were more sophisticated than Zgool.
On the day of the accident, Mr Mirto attended the pre-start meeting. He signed in as having 20 workers on site. Given the existence of a labour hire relationship with Zgool and the fact that no representative of Zgool is shown as having attended that meeting, the inference was open that the Zgool employees were amongst the 20 who formed Xmplar’s workgroup on behalf of whom Mr Mirto was signing.
Instructions were given to Mr Alzghoul by the Xmplar supervisor to start work on the day of the accident. “[H]e asked everyone to go to their work zone, because he have big teams and he divided the teams and asked them to go to their work”.
There was no evidence that Mr Alzghoul or the appellant received any directions or instructions from Core about where to work or procedures to be followed by Mr Alzghoul or the appellant. It was never suggested to the appellant that he or Mr Alzghoul received any instructions from a representative of Core as distinct from Xmplar.
In those circumstances, there was no error on the part of the primary judge in reaching the conclusion that she did at J[73](a), (b), (c), (f), (g) (set out at [44] above).
So far as J[73](d) and (e) are concerned, the position is as follows.
(d) Knowledge of ice on the deck: The appellant had given evidence, which was not challenged, that on the relevant morning “It was so cold that day, and on the ground there is a layer of frost”. There was no evidence that Core gave any instruction to Mr Alzghoul or the appellant in relation to the risks posed by ice or moisture on the top deck. It was in that context that the primary judge considered the terms of the insurance claim form.
Cross-appeal: Breach of duty of care
Primary judge’s approach
This issue was dealt with by the primary judge at J[92]-[97]. Her Honour relied upon the reasoning that she had adopted in relation to the claim against Zgool. In relation to Zgool, her Honour had reasoned: (a) it knew that its employees would be carrying heavy items; (b) it knew that its employees were working in an area that had been exposed to the elements and that it was likely that the surface may be slippery due to frost, ice or dew; (c) if a person were to slip on the surface, the likely seriousness of the harm was not insignificant, particularly when the person was carrying heavy building materials; and (d) the burden of taking precautions, by the use of a squeegee or a mop, was minimal.
Her Honour had found that Xmplar had assumed a duty of safety for its subcontractors in relation to the conditions on the site where they were being directed to work. Xmplar was in the same position of knowledge and foreseeability as Zgool.
The reasonable precautions for Xmplar to take involved ensuring that the surface of level 4 was safe to walk on, and that could have been achieved by any one of a number of measures that were low-cost and within the bounds of a reasonable burden such as use of a squeegee, mop, or towel: J[94]. A simple barrier could have been erected to prevent workers walking in areas that had not been addressed or checked.
Her Honour indicated that, had she found that Xmplar had told Zgool to squeegee the deck, she would not have accepted that a single instruction would have been sufficient if it had not ensured that action was actually taken: J[96] Submissions
Xmplar submitted that the evidence did not establish who gave any instruction concerning the mopping of the deck or when it was given. It submitted that the appellant’s evidence was that he had not been given any relevant instruction. However, it was possible that Xmplar had given such an instruction to Zgool. Xmplar challenged the inference drawn by the primary judge arising from its failure to call evidence on the point. It submitted that it was clear that Zgool would call no evidence because it had not taken an active part in the proceedings. It had been established that any communication from Xmplar to the appellant would have been via Zgool. As a consequence, the failure to call Mr Mirto or any other employee was simply because they could not give evidence of what had been communicated to the appellant. Having regard to the pathway for communication, that was not surprising.
Decision
The fundamental point made by Xmplar was that the primary judge should not have concluded that Xmplar gave no direction about mopping the deck. That was because it was not possible to rule out the possibility that a direction had been given to Mr Alzghoul, the representative of Zgool, and simply not passed on to the appellant.
The only evidence of the giving of an instruction was in the insurance claim form, which the primary judge had relied upon to establish knowledge of the deck being wet due to ice. The manner in which her Honour dealt with this is summarised at [42] above. Important for this conclusion was that she accepted the appellant’s evidence that he had not been told by anyone from Xmplar to do anything to the flooring. That conclusion was supported by the appellant’s evidence that the supervisor from Xmplar (by inference, Mr Mirto) had asked everyone to go to their work zone and told Mr Alzghoul that he and his assistant needed to do a particular area, but had not given any instructions at the start of the day that they should do anything to the ground. Evidence was adduced in cross-examination that sometimes the appellant would understand what was said in English, but sometimes he would not understand what was said in English and would rely upon Mr Alzghoul to give instructions in Arabic. The appellant said that Mr Alzghoul used to take instructions from the supervisor from Xmplar, and then Mr Alzghoul would deliver them to him and they would work together. No positive suggestion was put to him that he ever received any instruction as to how to proceed if the deck on level 4 was wet or icy. No positive suggestion was put to him that the evidence that he gave (that the supervisor from Xmplar had instructed them where to work but had not instructed them about doing anything to the ground before they commenced work) was incorrect. In those circumstances, it was open to the primary judge to take the approach that she did because: (a) The appellant’s evidence was inconsistent with the assertion in the insurance claim document that instructions had been given. (b) There was no effective challenge to the appellant’s evidence because although there was a suggestion, which was accepted, that some matters were said in English and then repeated in Arabic to the appellant, that evidence was not then used to challenge the appellant’s earlier evidence that no instruction about work on the ground had been given. (c) Apart from the insurance claim document, there was no evidence of such an instruction having been given.
The fact that there was no evidence from Mr Mirto and no explanation as to why he was not called made it easier for the primary judge to reach the conclusion that she did. Xmplar sought, very carefully, to limit the evidence adduced on this issue. The risk that such an approach gives rise to is that, at the end of the case, there may be just sufficient evidence for the trial judge to make the finding that Xmplar sought to avoid because Xmplar had not called evidence to directly rebut that finding. That is the risk that manifested itself in the present case. No error has been demonstrated in the conclusion reached by the primary judge.
Cross-appeal: The appellant’s credit
Cross-appeal: Contributory negligence
Primary judge’s approach
The primary judge addressed this issue at J[136]-[145]. Her Honour set out the terms of s 102 of the CLW Act. Her Honour found that the evidence did not establish many of the features relied upon by Xmplar to establish contributory negligence. She made three findings of fact: (a) It was not established that the appellant was given any instructions to squeegee the ice or frost on the deck prior to commencement of work. (b) There was no evidence that the appellant was given induction training which covered site safety rules and the need to de-ice and squeegee the decks under cold or frosty conditions. Instead, the induction discussion involved work hours and break times. (c) Because the content of any induction or training was not established, it was not possible to find that the appellant failed to adhere to the requirements identified in it.
Both Xmplar and the Default Insurer contended before the primary judge that the appellant should have avoided walking over an area that he knew had the presence of icy frost, as this was a visible hazard not a latent risk.
The appellant’s evidence was that he did not see the obviously frosty or wet surface. However, he was aware of it because he said that he had made several trips across the plywood deck, walking slowly and carefully at the beginning so as not to slip.
Her Honour identified that s 43(1)(c) of the CLW Act requires that, before negligence (including contributory negligence) is established, it must be the case that in the circumstances, the reasonable person “in the person’s position” would have taken those precautions. She then examined the circumstances of the appellant. The appellant did take precautions for his own safety by wearing work boots and a safety helmet, not running, and not going to an area where he was not permitted to walk. As an employee, he was required to carry heavy building materials and deliver those materials to a particular location. Her Honour pointed out that it was not put to the appellant that he could have taken a different path that would have avoided the frost. It was not a situation where the appellant could simply walk a different way, given that he was on level 4 of the building and part of that area was not complete.
Her Honour rejected the allegation by Xmplar that the appellant should have refused to carry the plywood if he thought it was unsafe, saying (J[144]): Otherwise, the allegation by Xmplar that the plaintiff should have refused to carry the plywood if he deemed the system unsafe and/or if he considered that he required mechanical or human assistance is unrealistic and not a precaution that a reasonable person in the position of the plaintiff would have taken. Such a submission shows a complete lack of any appreciation for the power imbalance between employer or host employer/principal sub-contractor and employee. It is unrealistic to expect that a reasonable person in the circumstances of this employee, on a new job under time pressure and facing a language barrier, and dependent on the employment for income, would initiate any conversation over whether to continue to work in the circumstances of the wet or frosty surface with which he was presented that morning. Ultimately, I have formed the view that in the circumstances, it was not a failure by the plaintiff to take reasonable care for his own safety in walking where he did. Submissions
Decision
The submissions made on behalf of Xmplar do not demonstrate any error on the part of the primary judge. The evidence of the appellant given in cross-examination was that he had done four or five trips across the level 4 deck. He had not slipped on any of those previous trips. He said: I was walking slowly and carefully at the beginning but then when they started pushing us like, ‘Come on, come on’ I went to get the far one and then when I carried it I slipped.
That evidence was not consistent with an inadvertent or thoughtless act indicative of negligence. Rather, although he was aware of the risk, it was one which he tried to avoid, ultimately unsuccessfully. The approach taken by the primary judge has not been shown to be wrong.
Conclusion
As a result of the appeal, the award of damages should be increased from $243,900 to $300,200. Except insofar as the cross-appeal also asserts that the primary judge erred in discounting all heads of damages on account of vicissitudes, the cross-appeal must be dismissed. Orders
The orders of the Court are: (1) Appeal allowed. (2) Set aside order 1 made by the Supreme Court on 26 June 2024 and in its place, order: “Judgment for the plaintiff against the first and second defendants in the sum of $300,200.” (3) Except as required by order 2, the cross-appeal is dismissed. (4) The second respondent is to pay the appellant’s and the third respondent’s costs of the appeal and their costs of the cross-appeal. (5) A party may apply for a variation of order 4, but must make any application within seven days.
I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 25 June 2025
Alananzeh
Zgool Form Pty Ltd [2025] ACTCA 19
(1959) 101 CLR 298
(1990) 169 CLR 638
(1986) 160 CLR 16
(1964) 110 CLR 24
(1995) 184 CLR 485
Appeal allowed. The Supreme Court order was set aside and replaced with judgment for the plaintiff against Zgool and Xmplar in the sum of $300,200. The cross-appeal was otherwise dismissed. Xmplar was ordered to pay the appellant's and the third respondent's costs of the appeal and cross-appeal, subject to an application to vary the costs order within seven days ([89]).
The consequence of this ground of appeal being established is that the reduction of 25 percent should only have been applied to the component of damages for future economic loss. Subject to the other grounds of appeal, that would result in the award of damages being increased from $243,900 to $300,200.
The reasoning was that the appellant had suffered an impairment of his working capacity as a result of the aggravation of his back condition. However, notwithstanding his impaired earning capacity, that would not be productive of economic loss after he had sufficient English skills to obtain employment consistent with his earlier qualifications.
The figure of $100,000 inclusive of superannuation was arrived at in light of the earlier findings about his past economic loss, which included findings about his earning capacity at the time of the accident. Those findings reflected a considerable degree of uncertainty as to the amount that would have been earned but for the accident. The relevant period was from the date of the accident (21 April 2021) until the date of the judgment (26 June 2024), a period of approximately three years and two months. The uncertainties with which her Honour was dealing are reflected at J[182]-[186]. 182. The plaintiff had only been working in Australia for 4 weeks at the time of the injury. The agreed rate of pay was $45 per hour, less expenses for food, accommodation and travel. There were no payslips in evidence, or evidence of any earnings the plaintiff may have before coming to Australia. … He submitted that the past economic loss should be assessed on the basis that he would continue to have earned what he earned in the four-week period before the accident. 183. Perhaps in deference to the preferred approach outlined in the principles above of a mathematical calculation where the evidence enables it, the parties each contended for damages for past economic loss of between approximately $40,000 to $125,000 based on hourly rates of between $25 and $35 nett per hour and full working weeks. Those figures were inclusive of the weekly compensation paid by iCare, which totalled $17,576.65, and were to the time of trial, but the delay from hearing to judgment has been taken into account in what follows. 184. The defendant argued a failure to mitigate loss, but I have not accepted that submission due to the fact that it was not pleaded and only raised after the plaintiff had given evidence. 185. In a case where the plaintiff had only 4 weeks of work, in a job without formality or permanency, with no records to support the figures claimed, with speculative amounts estimated as to nett working rates and no clear evidence that superannuation would have been payable had the arrangement, such as it was, continued, I consider that there are too many imponderables in this case to take a mathematical approach to economic loss. 186. I have allowed a buffer of $100,000 for past economic loss, inclusive of any superannuation that would have been payable and any interest. The considerations that have informed that amount are: (a) An approximate average weekly earnings figure of $800 nett. Some weeks he may have worked more and earned more, but some weeks he may have earned nothing). For example, the employment obtained by the plaintiff is unlikely to have involved payment for holidays or for down time on a construction site when manual formwork could not be completed due to scheduling or other construction delays, or matters outside the plaintiff’s control, such as weather or pandemic lockdowns, noting that this is precisely what occurred in Canberra later in 2021. (b) An approximate overall working period in the construction industry from the date of the accident of about 3 years, due to the vagaries and uncertainties of the industry itself and the type of work the plaintiff was doing. (c) Any superannuation payable is likely to have been modest at best. (d) The iCare figure of $17,576.65 which has already been paid and which I have accepted does not need to be repaid, which also has the consequence that no component for the tax component (Fox v Wood damages) arises.
Given the uncertainties as to the manner in which the appellant would have been employed, her Honour addressed the matter by way of a buffer but then identified at [186] the numerical considerations which fed into that exercise. Given the acceptance that the workers compensation payments of $17,576.65 did not need to be repaid, the buffer of $100,000 awarded reflects economic loss accruing at a rate of approximately $37,000 per year (($100,000 plus $17,576.65)/3.166 years = $37,137.29).
It is in light of the approach to past economic loss that the approach to future economic loss needs to be assessed. The boundary between those cases in which it is appropriate to award a buffer and those in which it is possible to make an award of damages based on a numerical calculation is not clearly defined. As all assessments of future economic loss involve a balancing of the different possibilities in accordance with Malec, the extent to which it is possible to calculate the extent of damages based upon rates of loss of earnings will depend upon the facts of the individual case. At one end of the spectrum is a case in which there is an established track record of a particular level of income and the likelihood is that, subject to vicissitudes, this will continue into the future. At the other end of the spectrum is a case in which there is an impairment of earning capacity but the nature of the impairment is such that, although it is possible that it will manifest itself in a manner that generates economic loss over the balance of the plaintiff’s working life, it is not clear when that will occur or the extent of loss arising on any particular occasion. The former is obviously a case where mathematical calculation of damages is necessary. The latter is a case in which a buffer is an available manner of awarding damages. Between these two extremes are cases in which there are uncertainties of varying degrees and, hence, it is more or less possible to indicate the mathematical basis upon which an award of damages is arrived at.
In the present case, although the primary judge characterised what she was doing as awarding a buffer, she did so by reference to the stated numerical considerations and immediately following her findings about past economic loss. She also quarantined from her assessment of the extent of the buffer all issues relating to vicissitudes. This was not a usual approach but cannot of itself be said to involve an error. The manner in which her Honour made an award of damages fell between a fully calculated approach and a purely buffer approach.
The second ground in the appellant’s Notice of Appeal raises whether it was appropriate for the primary judge to reduce the buffer awarded on account of vicissitudes in circumstances where she identified her award as a buffer, and the period by reference to which it was calculated was only two years.
If it was the case that her Honour adopted a pure buffer approach, then a further reduction for vicissitudes would be inappropriate because a buffer would involve an assessment of all of the possibilities, including the possibilities of death, sickness, unemployment or industrial dispute. However, where, as here, a more numerical approach to the assessment of a buffer was adopted, it is not impermissible to identify a factor such as vicissitudes as excluded from the assessment of the buffer but then take it into account by a mathematical adjustment.
As already noted, the assessment of the deduction for vicissitudes involved an increase from the 15 percent conventionally adopted to 25 percent: J[166]. That was intended to reflect the possibility that the appellant’s “underlying susceptibility or degenerative condition” would have manifested itself during the period of two years by reference to which the buffer was calculated and, hence, caused economic loss in any event. The reasons for that were explained by her Honour in the passage quoted at [18] above, which involved characterising the prospect of injury in any event as a “real likelihood” given that “the work involved was heavy physical work in the construction industry”. Having regard to the nature of the “underlying susceptibility or degenerative condition” in the appellant’s spine, the nature of the trigger for its aggravation and the type of work in which he was engaged, it cannot be said that there is any error on the part of the primary judge in increasing the reduction for vicissitudes beyond that conventionally applied, or in the extent of that increase. The fact that the period by reference to which the buffer was calculated was only two years does not indicate any error. There was inevitably uncertainty in light of the medical evidence as to the precise chance of the condition manifesting itself in a manner that caused economic loss. While the medical evidence disclosed the condition, it did not descend into statistical likelihoods or timeframes. A reduction of future economic loss of an additional 10 percent on account of this vicissitude is a significant one. It is reflective of more than a 10 percent chance of the condition manifesting itself in the two year period upon which damages were calculated. This is because a 10 percent reduction assumes a 10 percent chance of a manifestation at the beginning of the period, whereas the condition could manifest itself at any time during the period, and hence to warrant a 10 percent reduction there must be a higher chance of it manifesting at some time during the period. However, given the existence of the condition, the nature of the work being performed and the ability of the condition to be aggravated by a fall, it has not been shown that the figure fixed upon by the primary judge involved any error.
Her Honour then examined each of those documents in some detail.
The Core risk assessment form recorded who had attended a pre-start meeting on the morning of the accident. The primary judge found that Benny Mirto, an employee of Xmplar, had attended the meeting and confirmed that he had 20 workers on site. He had signed beneath a statement addressed to “workgroup members and visitors” that said: I have participated in this Pre-Start meeting explaining the Safe Work Method Statements (SWMSs), Temporary Traffic Management Plans for this job and understand the hazards, risks and control measures necessary for the safe completion of the job. I agree to follow the conditions of this Pre-Job Risk Assessment. Should safety conditions change I shall stop work and immediately inform my supervisor …
Her Honour found that Mr Mirto’s confirmation that he had 20 workers on site was an indication that he was responsible for communicating the information he had received to those 20 people. Her Honour inferred from Mr Mirto’s signature “that he had a sufficient degree of control to stop work if the safety conditions changed”.
The Work Incident Report was completed by a Jonathan Brereton and by Mr Mirto, and had been set out earlier in the primary judge’s reasons as follows: Incident Type: Injury/Fall on deck Names of affected …Sub-Contractor [the option circled]: [the plaintiff] Detailed Description…: Ahmad fell on deck while carrying a piece of ply. There was moisture on ply. Felt pain in hip/leg [immediately]. Person completing this section: Jonathan Brereton 21 April 2021 9.45 am. Risk Rating: …Low [the option circled] Control Measures: Details of Events after Incident … Reported fall to Core, [whose] management called an ambulance. Services arrived approx. 8.20, Ahmad taken to hospital for X-ray. Corrective Actions Required: Asses[s] work areas each morning and continually for moisture, [squeegee] or sweep wet decks prior to work. By Whom: Site team, Benny Mirto When: Immediate [the option circled] Person Completing this Form: Benny Mirto, 21 April 2021 9.45am
The email was one sent by the Core project manager for the development on the afternoon following the accident. It was set out in the primary judge’s reasons. It set out the procedure to be followed when accessing formwork decks that were “deemed to be icy, frosty and wet”. It identified that all access points would be isolated with a yellow chain and no access signage, Core site management would assess the condition of the formwork each morning to ensure that safe access and egress was available. That would be carried out with all “trade supervisors” required to work on that deck each day, and only once all groups agreed that the deck was safe to access would the yellow chain be removed. It said that “trade supervisors must maintain constant supervision and monitoring of their work area to ensure that safety is prioritised and maintained during the working day”. It was not clear whether the reference to trade supervisors was to employees of Core or to employees of subcontractors on the site.
The record of the toolbox talk meeting related to a meeting that followed the accident. There were 16 signatures recorded in the document, which her Honour found were the people for whom Xmplar was responsible and who had attended the meeting. The record identified Benny Mirto as the supervisor or foreman, and that the meeting had taken 10 minutes and that it related to the fall on the deck. Under the heading dealing with the issues raised or discussed, the following appeared: Tool Box men on ice deck Go through SWM on water on deck or ice. Man slip on ice or water that was on deck … Each day to be look[ed] at by Xmplar Forman [sic] and Core before work. Core will give instruction off [sic] when deck work can START.
Her Honour referred to the caution with which she considered the post injury records. However, she recorded that the procedure that was either adopted or had already been in existence “included not just Core personnel but the Xmplar foreman taking responsibility for when work was able to start”: J[65]. She found that this was not inconsistent with the appellant’s evidence that, before the accident, the person from Xmplar was the person who told him to start work.
The primary judge also inferred that Xmplar had responsibility for communicating the relevant safety measures to its numerous subcontractors immediately after the appellant’s fall on the deck. Her Honour found that was consistent with Xmplar having responsibility for safety measures on site. That was reinforced by the fact that only Mr Mirto from Xmplar attended the safety briefing given by Core, not representatives of the subcontractors to Xmplar such as Mr Ismail Alzghoul, the director of Zgool (hereafter Mr Alzghoul, referred to by the primary judge as Mr Zgool) and the person who worked alongside the appellant.
The primary judge also referred to the insurance claim forms later completed by Xmplar, noting that they carry less weight than contemporaneous documents: J[67]. However, in the absence of any oral evidence from Xmplar, the primary judge took into account the description of the incident in that form. That included an assertion that “workers had been instructed to squeegee the decks prior to working in their areas as the decks were wet due to ice”. The primary judge relied upon that to establish that Xmplar knew as a fact before the accident occurred that the decks were wet due to ice. However, she also accepted the evidence that the appellant had not been told by anyone from Xmplar to do anything to the flooring. The primary judge found that there was insufficient evidence to establish that Xmplar had explained anything to Mr Alzghoul so as to make good the submission that some instruction had been “lost in translation”: J[69]. Her Honour drew an inference that nothing that Mr Mirto would have said in relation to his responsibilities at the site, any communication he had with Mr Alzghoul or the appellant, or the content of that communication would have assisted Xmplar’s case: J[71].
The primary judge found that, even if the statements in the workers compensation form were accepted as indicating that Xmplar had provided an instruction about squeegeeing the decks, that would have demonstrated that Xmplar believed it exercised a degree of instructive control over Zgool’s employees in respect of the work that Xmplar was coordinating before the incident: J[72].
From the documents identified, the appellant’s evidence and Xmplar’s defence, the primary judge found (at [73]): (a) Xmplar held a Major Works Subcontract with Core to perform formwork at the site. (b) Xmplar was in a position of coordinating the activity of formwork between a number of different sub-contractors; on the day in question, up to 20 workers were within its coordination, only two of which came from Zgool. (c) Xmplar was responsible for receiving the safety control measures from Core at the pre-start meeting on the morning of 21 April 2021. (d) Whether as part of that briefing or independently, Xmplar knew as a fact that there was ice or water on the decks that day which needed to be wiped down (given that it told its insurer that directions had been given in respect of that matter). That is, Xmplar was aware of an unnecessary risk of injury arising from the general work area in which it was going to direct that work be performed. (e) Xmplar was the entity which had accepted, by Mr Mirto’s signature, the obligation (that is, the responsibility) to stop work and inform the supervisor if safety conditions changed. (f) Xmplar was the entity which directed where Zgool, as one of its sub-contractors, was to work on the site that day, and the entity which directed Mr Zgool and the plaintiff to start work (being the plaintiff’s evidence). (g) Xmplar was thus in a position of being able to exercise control over when the plaintiff started work, where the plaintiff worked, and what needed to occur at a particular work area before work started.
The conclusion reached by the primary judge was set out at [74]-[75] as follows: 74. Applying the authorities as set out above, those indicia are sufficient to identify and establish the requisite duty of care owed by Xmplar to the plaintiff. There was a level of oversight that might be described as creating a risk. Xmplar was coordinating the activities of the formwork sub-contractors and directing them to start work on an area that was exposed to the elements. Xmplar had attended the pre-job risk assessment meeting and had received knowledge that its sub-contractors did not have in that regard. By directing sub-contracted labour hire workers to commence work on level 4, Xmplar was putting those workers in a position where there was a foreseeable risk. Xmplar therefore assumed a duty to exercise reasonable care with regard to the safety of the area in which it was directing work to be undertaken. 75. Given the rolled-up way in which negligence was pleaded against the defendants collectively, it is necessary to make an additional finding that the duty of care did not extend to telling the plaintiff how to carry the building materials (with 1 or 2 men) or how to lay them, or to providing mechanical assistance to undertake the work. Those are matters that it was reasonable for an independent contractor to expect the sub-contracted employer to manage and supervise.
Later in the judgment (at [93]), the primary judge referred back to her earlier findings and said: In the particular circumstances here, I have found that Xmplar had assumed a duty of safety for its sub-contractors insofar as it related to the conditions of the site where those subcontractors were being directed to work. Submissions
The submissions of Xmplar referred to the primary judge’s finding at [93] and, more broadly, challenged a number of findings made by the primary judge. Those findings were: (a) Xmplar had a sufficient degree of control of the site to stop work if the safety conditions changed; (b) Xmplar had accepted or adopted responsibility for safety measures on site; (c) Xmplar had a degree of instructive control over the employees of Zgool in respect of work areas it was coordinating; (d) Xmplar was aware of an unnecessary risk of injury arising from the general work area in which it was going to direct that work be performed; and (e) Xmplar was at least in the same position of knowledge and foreseeability as Zgool.
It then pointed to a series of matters which it said ought to have been given greater weight: (a) that Xmplar itself was a contractor and the evidence did not establish that it was in a position to control the site; (b) the appellant’s evidence was that any direct instruction from Xmplar was provided to him by Mr Alzghoul, speaking in Arabic to the appellant; (c) the appellant was aware of the risk posed by ice on the ground prior to his fall and had taken steps to guard against that risk; (d) Xmplar was not controlling the particular work tasks performed by the appellant or the manner in which he performed them; (e) there was no evidence of a lack of expertise on the part of Zgool; and (f) the relationship between Xmplar and the appellant was not one of employment or akin to employment.
Xmplar contended that its duty did not extend beyond ensuring that its activities did not create an unreasonable risk of injury for other workers on site such as the appellant.
It can be accepted that the document was prepared substantially after the accident and that it was prepared by somebody who was not directly involved in what occurred. However, it could reasonably be inferred that the person signing the form had made enquiries sufficient to make the representations on the form.
The statement in the form is consistent with someone having had prior knowledge of the wetness of the area due to ice. In circumstances where there was no evidence of any instructions having been given by Core, it was open to the primary judge to rely upon this evidence as an admission by Xmplar of knowledge of wetness due to ice.
In a usual case, the contents of a business record such as a claim form authored by someone without direct knowledge of what occurred and prepared months after the relevant event would carry little weight if it was contradicted by other evidence. That is illustrated by the fact that the primary judge did not accept the assertion in the same form that instructions had been given to Mr Alzghoul and the appellant to squeegee the deck prior to working in their area. That was because that assertion was directly contrary to the evidence given on oath by the appellant. However, in the circumstances of the present case, the same statement in the claim form impliedly admitted knowledge of wetness due to ice and was the most significant evidence on the issue in the case. In the absence of any contradictory evidence given by a witness in the case or arising from some other document that was in evidence, it was open to rely upon this admission.
Plainly enough, Benny Mirto was a person who was “presumably able to put the true complexion on the facts” if it was, in fact, the case that Xmplar did not know about the wetness of the deck due to ice. In the absence of evidence from him or a sufficient explanation for his absence, the primary judge was entitled more confidently to draw the inference of knowledge. That reflects the principle in Jones v Dunkel (1959) 101 CLR 298 at 308. That was another case where evidence on the critical point was “meagre in the extreme”. Although a direction had been given to the jury in that case about the failure to call the relevant employee of the defendant, the direction was also required to include: that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.
In Jones v Dunkel, the jury should have been told that they were entitled to conclude that, had the employee gone into the witness box, the evidence “would not have assisted the defendants by throwing doubt on the correctness of the inference which … was open on the plaintiff’s evidence.” So too, here. It was open to the primary judge to draw an inference of knowledge from the terms of the insurance claim form. The terms of that form were not, in the context of other evidence in the case, so uncertain as to preclude an inference being drawn. Similarly, the primary judge was not obliged to accept the whole of what was stated on the form in circumstances where that was contradicted by other evidence in the case.
(e) Obligation accepted by signature: This issue related to the extent to which Xmplar had the capacity to control the work of its subcontractors where a safety issue arose. Having regard to the fact that: (a) Xmplar employed a range of subcontractors; (b) there were not less than 20 formwork workers for which it was responsible on the site; (c) there was no evidence of any other formwork contractor not under its control on the site; (d) there was no evidence of Core having given instructions or direction directly to Zgool or any other of Xmplar’s subcontractors; and (e) following the accident, Xmplar’s Mr Mirto gave specific instructions in a toolbox talk to 16 formwork workers on site, it is implausible to suggest that Xmplar had no capacity to address hazardous conditions such as moisture or ice in areas where its formwork subcontractors were working. Any additional support for this proposition drawn from the terms of the statement which was signed by Mr Mirto at the morning meeting was limited. However, the fact that he did sign the statement and did so by reference to the 20 workers for whom he was responsible is certainly consistent with Xmplar having some overall responsibility for, and capacity to address, safety concerns which existed. It was inconsistent with the proposition that responsibility for taking precautions against foreseeable risks was pushed up to Core or pushed down to Zgool so as to leave Xmplar with no relevant duty.
So far as the matters which Xmplar contends should have been given greater weight ([48] above) are concerned, none of those matters demonstrates that the conclusion reached by the primary judge was in error. That Xmplar was a contractor was considered by the primary judge. That it did not have overall control of the site was not a determinative matter having regard to its responsibility for formwork and the provision, by a number of different subcontractors, of formwork workers. It is true that instructions were provided by Mr Alzghoul to the appellant because of the appellant’s limited English. However, the evidence, such as it was, indicated that all instructions came from Xmplar. There were no relevant instructions that came from Core. It is also true that the appellant was aware of the risk posed by ice or moisture, but that does not affect the fact that Xmplar directed where the different formwork workers should work. There was no evidence of a lack of expertise or a direction as to the precise tasks that should be carried out by the Zgool workers or the manner of doing so. However, it is clear that Zgool was allocated to a particular area on the top deck and required to carry out a formwork task. Finally, it is true that the relationship between the appellant and Xmplar was not one of employment or akin to employment. However, part of the responsibility of Xmplar involved overall coordination of the work of the formwork subcontractors that it had engaged to work on the site. That included allocating where they were to work and, in doing so, considering the precautions that needed to be taken as a result of conditions outside the control of the individual teams of workers.
For these reasons, the ground of the cross-appeal alleging that the primary judge erred in her finding concerning the existence and scope of the duty of care is not made out.
Xmplar submitted that this was not a case of mere inadvertence on the part of the appellant and that, as between the appellant and Xmplar, there was no employment relationship. The submissions referred to the decision of the New South Wales Court of Appeal in Sheldrick v State of New South Wales [2007] NSWCA 105 at [53], which took the following quote from the earlier High Court judgment of Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 33: An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it …
Xmplar submitted that the appellant was not only aware of the presence of ice on the ground but he had, at an earlier time in the moments prior to his injury, exercised greater caution in his movement than he was exercising at the time of his injury.