Alelaimat v Synergy Scaffolding Services

ur Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34 Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 Pullen v Gutteridge, Haskins and Davey Pty Ltd [1993] 1 VR 27 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 Segal t/as Segal Litton & Chilton v Fleming [2002] NSWCA 262 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 Shoalhaven City Council v Humphries [2013] NSWCA 390 South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; [2017] NSWCA 312 State of New South Wales v Gillett [2012] NSWCA 83 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Texts Cited: Nil Category: Principal judgment Parties: Bilal Alelaimat (Plaintiff) Synergy Scaffolding Services Pty Ltd (First Defendant) Workers Compensation Nominal Insurer (Second Defendant) Representation: Counsel: D. Toomey SC with D. Morgan (Plaintiff) D.A. Priestley SC (First Defendant) P. Rickard (Second Defendant)

Solicitors: Matthew Garling & Co (Plaintiff) McCulloch & Buggy (First Defendant) Moray & Agnew (Second Defendant) File Number(s): 2017/208752 Publication restriction: Nil

Judgment

1. The plaintiff, Mr Alelaimat, claims damages for personal injury he suffered as a result of a work site accident on 10 October 2012. Mr Alelaimat was paid by DJ's Scaffolding Pty Limited ("DJ's Scaffolding"), now deregistered, represented here by the Workers Compensation Nominal Insurer, established by s 154A Workers Compensation Act 1987 (NSW) ("WCA") (see s 159(2) WCA), the second defendant, for work as a "sub-contracting" truck-driver delivering and collecting scaffolding materials. Synergy Scaffolding Pty Limited ("Synergy Scaffolding"), the first defendant, was the scaffolding contractor on the work site. As I find below, he was actually recruited and trained by Synergy Scaffolding to do the work on which he was engaged when he was injured.

Circumstances of the plaintiff's injury

1. On 10 October 2012 Mr Alelaimat was directed by Synergy Scaffolding's operations' manager, from whom he took his instructions, Mr Ali Hamka, to attend a work site in Artarmon to pick up scaffolding materials. On Mr Alelaimat's evidence when he arrived at the site shortly after 8am he found that the scaffolding was still being dismantled. Mr Alelaimat says that he rang Mr Hamka, for further instructions, and Mr Hamka told him to assist the workers in dismantling the scaffolding. The workers had set up a work-line, passing the scaffolding components down from hand to hand. The scaffolding was more than three storeys' high and Mr Alelaimat was on the ground level receiving components passed down. At some point during this work, Mr Alelaimat was bending over to pick up a metal joint or knuckle when he was struck from above by a falling 2.4-metre-long metallic scaffolding plank or "bench" which was caked in cement. The plank struck him hard across the left shoulder and down on his lower back. Mr Alelaimat says that he was knocked forward to the ground.

Description of Mr Alelaimat's injuries

1. There is dispute between the parties, and their medical experts, about the cause, nature and extent of Mr Alelaimat's injuries and disabilities, a topic to which I will later return. However, it is accepted that Mr Alelaimat currently suffers from lumbar canal stenosis also involving a L4/L5 disc protrusion. The condition has been treated by decompression and micro-discectomy. Synergy Scaffolding deny his condition was caused by the work injury.

The issues and summary of argument

1. Synergy Scaffolding accepts it owed Mr Alelaimat a duty of care as the entrepreneur responsible for the scaffolding work on site but disputes: the content of that duty of care extended to the provision of a safe system of work; breach of any duty which it owed; medical causation of his injury; the nature and extent of his disabilities; and that proceedings against it were commenced within the time limited by the Limitation Act 1969 (NSW). It claims statutory contribution from the second defendant under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ("LRA").
2. DJ's Scaffolding accepts it owed Mr Alelaimat a duty of care as his employer but denies negligence. It claims the statutory indemnity under s 151Z(1)(d) WCA and in the alternative statutory contribution under s 5 LRA from Synergy Scaffolding.

Limitation issue

1. In Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 ("Prince Alfred College") French CJ, Kiefel, Bell, Keane and Nettle JJ held at [9]-[10] that although generally it is appropriate for a judge at first instance to deal with all issues raised in the case, even where the determination of one issue is dispositive, where the judge makes a finding that the claim is statute barred he or she should not go on to consider the other issues in the case. On this basis I consider it necessary to deal with the limitation issue which was raised by Synergy Scaffolding first and before the other issues raised in the case. I interpolate that in Prince Alfred College, while their Honours upheld the primary judge's finding that no extension of time should be granted to bring the claim, they nonetheless considered the issue of liability. This was because their Honours sought to clarify the then vexed and unresolved question of whether, and in what circumstances, a school could be vicariously liable for the consequences of the intentional criminal conduct of a teacher.
2. Section 50C(1) Limitation Act establishes the relevant limitation period for personal injury actions in the following terms: (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. Note - The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3. …
3. By s 50D Limitation Act the date of discoverability is: … the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. …

Consideration

1. The determination of the limitation issue must be made bearing firmly in mind that Synergy Scaffolding bears the legal onus of proof on this issue as Mr Priestley SC, who appeared for it, properly conceded: Segal t/as Segal Litton & Chilton v Fleming [2002] NSWCA 262 at [27]; see also Pullen v Gutteridge, Haskins and Davey Pty Ltd [1993] 1 VR 27 at 71-6.
2. Mr Alelaimat was injured on 10 October 2012. His Statement of Claim was filed on 10 July 2017. His claim would be statute barred if it was discoverable before 10 July 2014.
3. This aspect of the dispute largely centred on the circumstances in which Mr Alelaimat received legal advice in late 2013. He had made inquiries of Ms Samantha McRae when she was at Slater and Gordon in March 2013. On 27 November 2013, he attended a conference with Ms McRae who was then of Law Partners. Ms McRae's affidavit of 6 October 2020 which outlines her interaction with, and the advice she facilitated for, Mr Alelaimat was read in these proceedings (Court Book ("CB") 64 - 83). Annexed to Ms McRae's affidavit is a letter of 6 December 2013 signed, I infer, by a more senior practitioner, Ms Chantille Khoury. It focuses upon Mr Alelaimat's right to recover workers compensation payments (CB 68 - 72). Ms McRae also annexes to her affidavit a document entitled "Law partners - Workers Compensation New Client Instructions", a questionnaire which was completed by Ms McRae in consultation with Mr Alelaimat (CB 73 - 83). Relevantly, in relation to this common law claim, Ms McRae has crossed the boxes for "Initial Lump Sum Claim" and "Medical/Treatment Expenses Dispute", statutory benefits under WCA, but has not crossed the box for "Possible Common Law".
4. Mr Priestley cross-examined Mr Alelaimat as to his knowledge about his injuries and any possible claim for damages arising out of his workplace accident. I will set out the relevant exchange below (133.19T - 134.19T): "Q: You believed that you were injured, didn't you, because of the fault of your employer? A: Yes. Q: That's what you said to your lawyer, wasn't it? A: Yes. Q: Did you have a discussion with that lawyer that day about whether you should do something about that in terms of bringing any special claim? A: At this time I was only concerned about the surgery. Q: You might have only been concerned about the surgery but did you have a discussion - A: I can't remember. Q: Sorry, let me finish. Did you have a discussion with your lawyer about that time about whether you should make any special claim because you thought that you had been injured as a result of your employer's fault? November 2013. A: I can't remember. Q: Do you remember ever having a discussion with any lawyer from Law Partners about that subject? A: Yes. Q: When did you have that discussion that you recall? A: My best memory I recall they start talking about that after the surgery. Q: You started talking about or they started talking to you about it? What happened? A: My best memory I think you are entitled for - I don't know what it's called - damage. Q: Damages? A: Yeah, or maybe we - after six months we're going send you to the doctor to assess you for impairment, then we will make a claim for damage. Q: But you don't remember now when you first had that discussion; is that fair? A: I can't - the exact day I can't remember but most of the time after the surgery. Q: It might have been in November 2013, mightn't it? A: Maybe. Q: At the time you told that lawyer that you thought it was their fault. Is that possible? A: I can't remember exactly but all the discussion about the damage and the start of the surgery - most of it. Q: Most of the discussion? A: Yeah." It is to be borne in mind that it is Mr Alelaimat's damages claim against Synergy Scaffolding that is the subject of the limitation defence, not a work injury damages claim against his employer. The reference to an assessment by "a doctor" clearly relates to the question of the s 151H WCA threshold for a work injury damages claim. From the content of the questionnaire, there may have been confusion as to who was Mr Alelaimat's employer.

Submissions

1. Mr Priestley argues that Mr Alelaimat's claim must be dismissed as it is statute barred. He submits that by the time Mr Alelaimat consulted Law Partners in November 2013 he satisfied the requirements of discoverability in accordance with s 50D Limitation Act. He argues that given the nature of Mr Alelaimat's consultation with Law Partners he satisfies subs (1)(a), that is that he knew that the injury had occurred. Mr Priestley submits that he also knew that the injury was caused by the fault of the first defendant. In this regard Mr Priestley relies on the notes recorded on the Questionnaire completed by Ms McRae, which read "Client instructs employer (was) negligent", "not enough workers" and "some workers don't have tickets" (CB 74). Mr Priestley says that this material viewed in the light of Mr Alelaimat's evidence that the workers on the site were all wearing Synergy Scaffolding livery and that he was injured by a falling piece of scaffold demonstrates that Mr Alelaimat knew that his injury was caused by the fault of the first defendant. Finally, Mr Priestley argues that Mr Alelaimat knew that his injury was sufficiently serious to justify the bringing of a cause of action because at the time he consulted Law Partners he was suffering from severe back pain, and he was determined to have spinal surgery due to the severity of his pain (127T - 128T). Indeed, the refusal of the workers compensation insurer to pay for the proposed surgery was a matter about which Mr Alelaimat was seeking advice. He submits that in this case Mr Alelaimat knew of all relevant facts and their consequences.
2. Mr Toomey SC, who appeared with Mr Morgan for the plaintiff, argues that Mr Alelaimat was both unaware that his injury was the fault of the first defendant and was sufficiently serious to justify bringing a cause of action until he consulted Garling & Co, his present solicitors, in 2017. Mr Toomey relies on the letter of advice annexed to Ms McRae's affidavit (CB 68 - 72) to demonstrate that Mr Alelaimat was not advised of his right to common law damages at that time but rather was only given advice relating to his right to recover workers compensation payments. He also relies on Ms McRae's failure to cross the box for "Possible Common Law" claim on the questionnaire (CB 73) as evidence that Law Partners offered Mr Alelaimat no advice with respect to a common law claim and that therefore Mr Alelaimat was unaware that his injury was the fault of the Synergy Scaffolding or that it was sufficiently serious to justify bringing a cause of action. Mr Toomey argues that in accordance with Baker-Morrison the s 50D(c) test is one of legal liability and it is not sufficient that Mr Alelaimat informed Ms McRae that he believed his employer was negligent. Mr Alelaimat took all reasonable steps by seeking the advice of a lawyer but was not informed that his injuries were either the fault of Synergy Scaffolding or could give rise to a legal cause of action for CLA damages against it.

Decision

1. I am satisfied from Mr Alelaimat's evidence that he knew of his injury from the date of the accident. In his examination-in-chief Mr Alelaimat described that the force of the blow caused him to fall to the ground and left him screaming in pain (45.40 - .43T). His injuries were painful enough for him to attend a medical centre for assessment and treatment immediately. He had continued to receive treatment and had been recommended to undergo spinal surgery by Dr Darweesh Al-Khawaja, neurosurgeon, in March 2013 (CB 103), although this opinion was challenged by an insurance specialist and liability for the cost of surgery was denied.
2. I am not satisfied that Mr Alelaimat knew or ought to have known that his injury was caused by the fault of Synergy Scaffolding. He certainly had the belief that his "employer (was) negligent" (CB 74), but that is insufficient, especially given the issues that have arisen about legal responsibility between Synergy Scaffolding, on the one hand, and DJ's Scaffolding on the other. As Ms McRae's notes also make clear, when Mr Alelaimat consulted her she had a question in her own mind about "who was running the site" (CB 74). Although Ms McRae recorded Synergy Scaffolding beside the entry "employer name" (CB 80), it is common ground that this is erroneous. From Ms Khoury's letter of advice of 6 December 2003 it is clear that notwithstanding Mr Alelaimat's belief, Law Partners then did not regard his as other than a workers' compensation case. No advice whatsoever was proffered in relation to a "possible common law" claim (CB 68 - 73).
3. As Basten JA said in Baker-Morrison (at [28]), although described in the legislation as a "fact", s 50D(1)(b) is concerned with the relationship between "injury", on the one hand, and the "fault" of the defendant, on the other. Although (at [39]) his Honour emphasised, "it was the key factors necessary to establish legal liability that had to be known", those key factors here included the relationship between Synergy Scaffolding and DJ's Scaffolding of which Mr Alelaimat was then ignorant. He was mistaken in his belief that Synergy Scaffolding was his employer. Had he been correct about that, the factors relevant to the cause of action, including the degree of disability of impairment necessary to bring proceedings, would have been different. As in Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 ("Liddiard"), Mr Alelaimat mistakenly understood he worked for Synergy Scaffolding and had no appreciation of the involvement of DJ's Scaffolding and the relative responsibilities of each of those entities respectively. I am not satisfied that Synergy Scaffolding has discharged the onus of proving Mr Alelaimat knew the relevant s 50D(1)(b) "fact": Liddiard at [48] - [49], Beazley JA (as her Honour then was).

Evidence of Mr Alelaimat

1. The evidence of Mr Alelaimat was taken orally by way of both examination-in-chief and cross-examination rather than by way of his evidential statement. Mr Alelaimat gave evidence that in March 2011 he came across a job on the Gumtree website advertising for a truck-driver for a scaffolding company and applied for the position (26.37T - 27.8T). He said that after he applied for the job a person called Ali Hamka called and introduced himself as the Manager of Synergy Scaffolding and after some questioning asked him to come to the yard then located at 40 Norman Street Peakhurst the next day for an interview, and if suitable for a trial of work (27.24 - .34T).
2. Mr Alelaimat said that when he went to the yard, he introduced himself to someone who was apparently the yard manager and who gave him some jobs to do around the yard, which included cleaning some clamps and gears (28.1 - .20T). Mr Hamka arrived later and asked Mr Alelaimat some questions about whether he could drive a ute (28.25T). Mr Alelaimat responded that he could, and Mr Hamka said that he would speak to the director of Synergy Scaffolding, Mohamed Al Jarrah, about what work he could offer him (28.25 - .32T). Mr Alelaimat continued to work in the yard that day until Mr Al Jarrah introduced himself (28.41 - .46T). Later in the day Mr Hamka approached Mr Alelaimat and told him that Mr Al Jarrah could offer him a job from Monday to Saturday, 6am to 4pm, for $20 an hour with a minimum of 46 to 60 hours a week (29.9 - .12T). He was told that he would be a truck driver and that he would be required to pick up and drop off scaffolding and gear at job sites (29.16 - .19T). This job required him to load the scaffolding on and off the truck, sometimes with the assistances of the men working in the yard (32.35T).
3. Mr Alelaimat reported for work the next day (29.25T). He said that he reported to and received directions by either text or phone call from Mr Hamka (29.30 - .35T). He was provided with a Synergy Scaffolding uniform to wear while he was working (29.50T). In the first week or two Mr Hamka accompanied Mr Alelaimat in the truck and trained him how to drive it (31.7T). He also taught Mr Alelaimat how to strap the scaffolding material onto the truck (77.20 - .35T). Initially Mr Alelaimat drove a 4.5 tonne truck but at the beginning of 2012 he obtained a HR licence and started driving a 12 tonne truck (31.20 - .24T). All the trucks that Mr Alelaimat drove had Synergy Scaffolding logos on them (31.45T).

Cross examination by Mr Priestley

1. Under cross-examination Mr Alelaimat confirmed that he was not given training on how to dismantle scaffolding (78T). Mr Alelaimat said that he was not given any instruction about exclusion zones and does not remember seeing any areas taped off when he went to drop off and collect scaffolding (79.1 - .12T).
2. When taken to the events of 10 October 2012, Mr Alelaimat explained that the job required at least 15-20 workers and at the time of the incident there were only 3-5 workers present so everyone was fatiguing (94.25T). To Mr Alelaimat's observations there was no leading hand at the site that day (90.50T). Mr Alelaimat agreed with the proposition put to him by Mr Priestley that Mr Hamka did not direct Mr Alelaimat as to how to assist the workers but repeated that Mr Hamka had asked him to stay and help (100.35T). In response to a question posed by Mr Priestley as to whether Mr Hamka told him not to go into the exclusion zone, Mr Alelaimat replied "[h]e said, 'Go, they're going to pass the gear to you, take them, carry them, put them outside, stack them and load in the truck.' That's the only thing he said" (100.42T).
3. Mr Priestley suggested to Mr Alelaimat that he has been exaggerating his symptoms in his back and leg to doctors (121.29T). Mr Alelaimat disagreed with this suggestion (121.30T). He disagreed with the propositions put to him by Mr Priestley that he pretended not to be able to lift his legs as part of the straight leg raising test in front of several doctors (122T - 123T).
4. Mr Priestley questioned Mr Alelaimat on why he had not enrolled in an English language course to assist him with his job applications (111T - 112T). Mr Alelaimat replied that last year he enrolled in an English course (112.26T). He said that he has largely been applying for jobs that advertise part time work (113.31T). Mr Alelaimat said that he had not been applying for driving jobs while his licence was restricted (113.46T). He said that he had gone through the assessment process recently to remove the restrictions on his licence because it would assist him in getting jobs (114.23T). He said that many administrative jobs required you to have a full licence (114.35T).
5. Mr Alelaimat said that he informed his job provider at Centrelink that he was assisting in the convenience store and his job provider told him that if he could be given work there, they would pay his employer $2000 (125.36T). Mr Alelaimat said that he informed his friend who owned the convenience store but that his friend said because of Covid-19, work was slow and that he would have to think about it and see what he could do (125.46T). His friend suggested that he might be able to offer him 5 to 10 hours of work a week (125.49T).

Evidence of Mr Ali Hamka

1. Mr Ali Hamka has also been known as Robert Zaidder (159.9T). Mr Hamka is currently employed by Synergy Scaffolding and has been working there for over 10 years (159.34 - .40T). At the time of the incident Mr Hamka was the day-to-day operations manager (160.6T). Mr Hamka would obtain the workers required in a labour hire arrangement from DJ's Scaffolding (161.30T). He would also use other labour hire services (161.50T). Mr Hamka said that he hired Mr Alelaimat through DJ's Scaffolding (162.38T). When questioned in cross-examination about how he knew that Mr Alelaimat came through DJ's Scaffolding, Mr Hamka said that he presumed that he had acquired Mr Alelaimat through DJ's Scaffolding because that was who his workers compensation was with (179.14T; 182.6T). Mr Hamka confirmed that he trained and oversaw Mr Alelaimat in the truck in his first week or so starting work (163.1 - .16T). He said that after this period he didn't provide any additional training to Mr Alelaimat (164.20T). He said that no one else from Synergy Scaffolding provided Mr Alelaimat with training (191.35T). He said that he instructed Mr Alelaimat on a daily basis about where to go and what to do via phone calls and text messages (163.19 - .23T). Exhibits C & D show however that initially invoices for Mr Alelaimat's work were filled out to "Scaffhire".
2. Mr Hamka said that he never asked Mr Alelaimat to help out on the scaffolding sites (164.45T). He denied ever asking Mr Alelaimat to assist the scaffolders to remove the scaffolding on the date of the incident (181.4T). He maintained this denial in emphatic terms several times.
3. It is important to emphasise, at the risk of repetition, in relation to the issues for determination in this case that the distinct impression deliberately created by Mr Hamka was that Synergy Scaffolding did not actually employ any scaffolders directly. Rather, he ordered "men" as he needed them from "multiple sub-contractors" (161.50T). Although he referred to the source of the labour as "sub-contractors" (162.40T), he also referred to these organisations as "the labour hire company" (162.38T). I thought this a more accurate description given it is clear that the scaffolding work in which Synergy Scaffolding was involved was work it had contracted to do. These contracts were not let or delegated to third parties. Rather, Mr Hamka would, if necessary, "ring around" the various labour hire companies to put the necessary team together. It is also important to bear in mind that when Mr Alelaimat was first hired as a truck driver, Mr Hamka, and not someone from Scaffhire or DJ's Scaffolding or another labour hire company, trained him to "make sure he was competent in the dealings of the truck" (163.10T). I infer that the truck he was required to drive was the property of Synergy Scaffolding; "It's a $300,000 truck" (163.27T). Mr Hamka said of the training (163.41T): "During that first week - because a truck driver knowing how to drive a truck is one thing, but then knowing how to drive a truck loaded with scaffold and how to stack it with the Hiab is another thing. You know, you can be carting coke bottles all day. It doesn't mean you can come and drive a scaffold truck." Mr Hamka trained Mr Alelaimat in using the Hiab, liaising with crane crew, and strapping the truck (163.49T). Mr Hamka confirmed Mr Alelaimat's evidence that he would directly instruct Mr Alelaimat by telephone or text message "on a daily basis, where to go, what site, and what to do - like, what to pick up, delivery, who to talk to" (163.20T).

Primary Medical Treatment

1. As Mr Alelaimat said, on the day of his injury he was taken from the Artarmon work site to the Artarmon Medical Centre in Hamden Road, Artarmon where he consulted and was examined by Dr Elizabeth Nash. From her clinical records (SCB 10), he gave a history consistent with his claim of a 12 kilogram piece of steel falling three floors onto his left upper arm and back. Amongst other findings recorded by Dr Nash, on examination she elicited tenderness on the lower thoracic and lumbar areas of the back. Her primary diagnosis on that occasion seems to have been "injured shoulder". In her letter re-referring Mr Alelaimat to his usual GP, Dr Ismail Mohammed of Liverpool, dated 1 November 2012 (PSCB 8) she stated that the x-rays including spinal x-rays she ordered "were clear", "but [Mr Alelaimat] has suffered severe and extensive bruising to his back". Her clinical notes record that on 17 and 25 October 2012 his principal complaint was of back pain without radiation to the lower limbs, which she treated with strong pain killing medication including Tramal (PSCB 10), as he said.
2. From Dr Mohammed's clinical notes during November and December 2012, Mr Alelaimat's principal continuing complaints were of pain in his upper and lower back. Dr Mohammed made a finding of muscle spasm in these areas which were treated with Valium.
3. Dr Mohammed referred Mr Alelaimat for the Magnetic Resonance Imaging scan of the lumbar spine taken on 29 January 2013. The radiologist reported congenital shortening of the pedicles at L3/4 and L4/5. The radiologist's impression was of "moderate congenital canal stenosis maximal at L4/5" (my emphasis). The lumbar discs were reported as being "intact". I interpolate that Dr John Korber, whose evidence is referred to below, made his own assessment of the imaging and regarded the outline of the L4/5 disc as normal. This may be significant because the appearance of disc had changed markedly by 22 August 2014, prior to Mr Alelaimat undergoing his spinal surgery at the hands of Dr Al-Khawaja. A significant issue arose as to the connection between what was shown in the respective MRI results of 29 January 2013 and of 22 August 2014 prior to surgery. It is convenient to deal with those differences now.
4. The MRI of 22 August 2014 was carried out by Dr Simon Dimmick on the referral of Dr Al-Khawaja. Focusing upon the findings at L4/5, Dr Dimmick reported (at CB 90): "At L4/5 there is a moderate central/right paracentral disc protrusion. The protrusion and congenitally short pedicles cause severe central canal stenosis at this level. No neural exit foraminal stenosis. No significant facet joint artropathy.(My emphasis.) At L5/S1, there is a central bulging of the invertebral disc without evidence of central canal or neural exit foraminal stenosis. No significant facet joint artropacy."

Dr Darweesh Al-Khawaja

1. Dr Darweesh Al-Khawaja, as I have said, is the treating and operating neurosurgeon. His 17 reports between 7 March 2013 to 27 February 2019 are in evidence (CB 103 - 125). Dr Al-Khawaja first saw Mr Alelaimat on referral from Dr Mohammed on or about 7 March 2013. He received a history consistent with the facts of the injury as I have stated them to be. It is most significant, in my view, given the medical issue, to record that on the initial examination Dr Al-Khawaja found neurological clinical signs as follows (CB 103): "[Mr Alelaimat] has got significant limitation of flexion and extension of his lumbar spine. He has got positive Trendelenburg test on both sides. He has got decreased sensation at L5/S1 distributions on both sides." The accuracy of these findings was not challenged when Dr Al-Khwaja was cross-examined.
2. He also formed his own view of the pathology shown on the MRI scan of the lumbar spine. This is within the competence of a specialist surgeon. A doctor does not need to be a radiologist to interpret an X-Ray image. In Dr Al-Khawaja's view, the imaging "showed significant canal narrowing of L4/5 level caused by central disc herniation and facet enlargement and thickening of the pedicle" (my emphasis). Dr Al-Khawaja was of the view that the canal narrowing was causing Mr Alelaimat's leg pain. As to medical causation he stated: "I believe he has got thick pedicles, but the canal was still wide enough until he had the injury which gave him the central disc herniation". I repeat that from the outset he recommended the decompressive surgery not carried out until September 2014.
3. He adhered to these views in evidence (225.50 - 226.2T). He also sought to demonstrate by displaying an imaging from the 29 January 2013 MRI scan the change he detected to support the opinion he expressed on 7 March 2013. This had its difficulties because not only am I not medically trained, which would be irrelevant to my role as the tribunal of fact, but it was very difficult to see what he was attempting to demonstrate as he gave his evidence remotely by audio visual link. The image was subsequently admitted as Exhibit L. I will not attempt to interpret it. Rather, I will confine myself to what Dr Al-Khawaja said about it. Pointing to the image Dr Al-Khawaja gave the following description (227.5 - .15T): "… in the centre here is the canal, which should be rounded and wide, and if you look at the top there is a black disc there, rounded like black disc, and you can see the inferior margin of it, there is a blip or bulge in the middle of it, going into that canal in the middle. … … that is the middle bulge going into that nerve next to it, and you can see the facet - this is difficult, I should point to the facet joint, but I want everybody to see the central bulge, which is very, very clear."

Dr Neil Cochrane

1. Dr Cochrane prepared four reports dated 2 August 2019, 12 August 2019, 27 August 2019 and 27 July 2020. He also gave oral evidence before me. Dr Cochrane confirmed that he viewed the MRI scan of 29 January 2013 before preparing any of his reports (206.26T).
2. Mr Toomey asked Dr Cochrane to explain the architecture of the spine. In particular Mr Toomey asked him questions about the architecture of intervertebral discs. Dr Cochrane explained that intervertebral discs are composed of a disc wall or annulus and a nucleus pulposus (206.30T). A disc prolapse is where there has been a focal failure (a bulge of a disc or a protrusion) of the annulus to allow protrusion of the nucleus pulposus (206.40T). In response to a question from me, Dr Cochrane explained that claudication is where there is a progressive worsening of pain and/or weakness with movement of the legs (219.18T). The pain usually goes away after ten minutes, and the person is able to resume walking, but the symptoms come back (219.25T). It can occur for neurogenic reasons (219.20T) or for vascular reasons from poor blood supply to the legs (219.21 - .22T). Neurogenic claudication is where the spinal canal is narrowed and the nerves running through the spinal canal are compressed causing those symptoms (219.30T).
3. When questioned as to how a disc protrusion could occur Dr Cochrane said that there can be no focal protrusion without any disturbance to the disc annulus, as there has to be some form of weakness or deficiency to allow the nuclear material to protrude through (207.2T). Dr Cochrane agreed with the proposition that sometimes there can be a disc rupture that sees the nucleus pulposus extrude through the wall of the disc (207.7T). And Dr Cochrane agreed that sometimes a disc rupture may be seen as a prolapse which means that there is some extrusion of the disc material into the wall but not through its outer casing (207.12T).
4. Dr Cochrane said that the MRI scan of 29 January 2013 showed a congenital or longstanding abnormality of the entire lumbar spine known as congenitally short pedicles (207.25T). He considered there was a mild disc bulge of the L4/L5 intervertebral disc but no focal disc protrusion (207.27T). He observed that there was some pre-existing or post traumatic anomaly of the disc annulus which caused the disc bulge (207.33T). Although the terminology differs, I regard this as consistent with Dr Al-Khawaja's evidence.

Dr John O'Neill

1. Dr O'Neill is a consultant neurologist (234.8T). Dr O'Neill prepared 3 reports, dated 19 February 2018, 3 September 2018 and 16 June 2020. He also gave oral evidence before me. Dr O'Neill accepted that he based his findings on the MRI reports and did not view the scans (234.50T).
2. In his report of 3 September 2018 Dr O'Neill said that the MRI report of 29 January 2013 did not accord with the clinical presentation of the plaintiff and that the scans should be reviewed by a neuroradiologist (CB 272 - 273).
3. Dr O'Neill did not accept, given the clinical history of Mr Alelaimat, that the disc protrusion came on gradually between January 2013 to August 2014 due to an earlier injury to the disc in October 2012 (237.49T - 238.3T). He drew a distinction between disc degeneration which happens over time and damage to the disc or disc annulus causing a disc prolapse (238.21 - .24T). He said that where the disc prolapse presses on the nerve root the patient gets immediate radicular symptoms (238.25T). In his opinion a disc prolapse does not slowly get bigger over time (238.27T).

Dr Vidyasagar Casikar

1. Dr Casikar is a consultant neurosurgeon (247.22T). He prepared two reports dated 29 March 2013 and 2 June 2020 and gave oral evidence before me.
2. In his report of 29 March 2013 Dr Casikar noted that the MRI of 29 January 2013 shows that Mr Alelaimat had L4/L5 lumbar canal stenosis with congenitally short pedicles (CB 238). However, Dr Casikar did not find that his clinical examination supported a diagnosis of symptomatic canal stenosis (CB 238; 251.47T).
3. Dr Casikar explained that there are two ways that lumbar canal stenosis develops. One way is through the thickening of the ligaments of the spinal canal which occurs over a large period of time and is associated with ageing (250.24T). The other is where there is a large or significant disc prolapse which compromises the canal (250.27T). Dr Casikar accepted that where the patient has congenitally short pedicles the disc prolapse need not be so significant to cause lumbar canal stenosis (250.34T).
4. Dr Casikar emphasised that in his opinion Mr Alelaimat's symptoms did not correlate with the diagnosis (252.20T). He said that Mr Alelaimat had spoken of different symptoms to different doctors (252.22T). He had told the neurologist, Dr O'Neill, that when he walked his leg pain got better, which Dr Casikar said was inconsistent with lumbar canal stenosis (252.23T). Dr Casikar said that if Mr Alelaimat had spinal canal stenosis on his examination, he would have expected to see reduced sensation over the outer aspect of the leg below the knee and also over the inner aspect below the knee (252.46T), as well as loss of sensations over the outer aspect of the foot and the spinal reflexes should be reduced (253.5T). His examination did not elicit these findings.
5. Dr Casikar, however, accepted that where there is a weakness in the annulus a disc prolapse can occur over time (256.22T). He agreed that damage caused to the annular wall by sudden flexion could render the disc vulnerable to developing a prolapse (256.37 - .41T). Dr Casikar acknowledged that if Mr Alelaimat was bending over when struck by falling scaffolding on the back forcing him down this involved the type of sudden spinal flexion that could lead to damage to the annular wall (257.6T). However, in his history from Mr Alelaimat, Dr Casikar recorded that Mr Alelaimat had been struck on his shoulder and not to his back (CB 237; 255.26T).

Dr John Korber

1. Dr Korber is a specialist radiologist (275.9T). He prepared a report on 20 February 2019 and gave oral evidence before me.
2. Dr Korber drew a distinction between a disc prolapse/herniation and a disc bulge, which he said tends to be degenerative in nature (276.23T). He said the former tend to be "focal" and the latter rather tend to "bulge". Dr Korber regarded Mr Alelaimat's spinal canal stenosis as moderately severe (277.43T). This impression was formed from the first MRI scan of the lumbar spine of 29 January 2013 (277.5T). Dr Korber agreed with Mr Toomey that the more severe congenital canal stenosis the less significant any disc deformation needed to be to cause symptomatic canal stenosis (278.3T).
3. Dr Korber also agreed that "there might be pathology in the disc annulus that causes some compromise to its structural integrity without any deformation in the shape of the disc" (278.21T). Dr Korber added that a disc can look exactly the same in two patients with symptoms in one and no symptoms in the other, "which makes it so hard" (278.23T).
4. Dr Korber had also said (276.45 - .50T): "… with a bulge it can be significant in a patient who has a small spinal canal as [Mr Alelaimat] has because everything that adds to the size of the spinal canal makes a difference, but when you end up herniating that changes that smooth outline to something that's rather focal and that's what I believe happened in this case".
5. While different experts used what appeared to be somewhat interchangeable terminology, I am not of the view that anything decisive turns on the medical semantics.

Plaintiff's submissions

1. Mr Toomey submitted that Synergy Scaffolding should be considered to be in the position of Mr Alelaimat's employer and to owe him that non-delegable duty of care. He submitted that Synergy Scaffolding failed to institute a safe system for the work of dismantling the scaffold including the establishment of an exclusion zone in the potential drop zone below where scaffolders were removing and handing down the componentry.
2. He argued that Mr Alelaimat took instruction and direction only from Mr Hamka in his capacity of Synergy Scaffolding's day-to-day operations manager. First, Mr Toomey submitted that Mr Alelaimat had been instructed to assist the men onsite by receiving components of the dismantled scaffolding by either Mr Hamka or Mr Al-Jarrah, Mr Hamka's superior. And secondly, that Mr Alelaimat was simply doing his usual job of retrieving the scaffolding from where it had been placed on site during the dismantling when he was struck by a falling length of scaffolding planking. This was systemic negligence for which Synergy Scaffolding was responsible.
3. Alternatively, Mr Toomey submitted that Synergy Scaffolding was also vicariously liable for the casual act of negligence of the scaffolder on the site who dropped the plank which struck Mr Alelaimat. He argued that the workers were under the control of Synergy Scaffolding as they were hired to do Synergy Scaffolding work and were even provided with its livery.
4. Mr Toomey submitted that an adverse inference should be drawn from the failure to call Nada Hamka, who worked in administration in the office and would have been able to say whether a, and which, labour hire service had been engaged to supply labour on the Artarmon site. Alternatively, Senior Counsel submitted I should draw a Blatch v Archer (1774) 98 ER 969 inference to prefer Mr Alelaimat's proofs in the absence of explicit evidence suggesting a sub-contractor for whose negligence Synergy Scaffolding was not responsible was performing the dismantling work on the day in question.
5. In relation to medical causation, Mr Toomey submitted that the MRI scan of 2013 showed damage to the disc and a protrusion that was extending to the spinal canal. In the alternative, he submitted that the incident caused damage to the disc annulus and that over time this original injury progressed into a protrusion. Mr Toomey argued that this is consistent with the progression of Mr Alelaimat's symptoms and the body of preferable medical evidence. Mr Toomey submitted that any exaggeration by Mr Alelaimat of his condition should not be weighed heavily in the assessment of damages because the evidence establishes that Mr Alelaimat has a serious condition which persists.

First defendant's submissions

1. Mr Priestley conceded that Synergy Scaffolding owed Mr Alelaimat a duty of care. However, he submitted that this case turned on the nature, scope and content of that duty. Mr Priestley argued that the evidence did not prove that Synergy Scaffolding had assumed the role of employer, or was otherwise, responsible for the system of work on the site. In that respect, Mr Priestley pointed to the lack of training offered to Mr Alelaimat by Synergy Scaffolding or Mr Hamka after the first two weeks; and that, ultimately, no one was telling Mr Alelaimat how to do his job as factors pointed powerfully to a conclusion that Synergy Scaffolding did not exert any control over the manner of Mr Alelaimat's performance of his work. Mr Priestley submitted I should reject Mr Alelaimat's evidence that he was specifically instructed to assist the scaffolders in dismantling the scaffolding. He submitted that assisting the scaffolders was beyond the scope of a truck driver's work for which Synergy Scaffolding might be responsible.
2. Moreover, Mr Priestley submitted that the evidence did not demonstrate any control by the first defendant over the workers on the site at the day of the incident. He argued that there was also an absence of evidence to establish that Synergy Scaffolding had assumed responsibility for the acts and omissions of the workers which might establish a seconded employment or pro hac vice situation. He submitted that on that basis an argument grounded in vicarious liability could not be made out against the first defendant.
3. In relation to quantum, Mr Priestley submitted that I would not be satisfied of the causal link between Mr Alelaimat's back and leg pain and the incident, having regard to the history of the development of symptoms in the light of the MRI scan of January 2013. Mr Priestley argued that it was only when Mr Alelaimat returned to work that he felt pain and that this may be explained by an intervening trauma that may have caused the disc protrusion which on Dr Al-Khwaja operated, unsuccessfully in the event. Senior Counsel emphasised that Mr Alelaimat's presentation was clinically inconsistent with the asserted pathology and the nature and extent of his injury had not been established, nor had its connection to the subject injury.

Second defendant's submissions

1. Mr Rickard submitted that there was no evidence that anybody with any association with, let alone employment by, DJ's Scaffolding was working as a scaffolder at the time of the incident. He argued that in the absence of such evidence there could be no vicarious liability attributed to DJ's Scaffolding for any casual negligence of any individual who dropped the plank which struck Mr Alelaimat. He further submitted that as there was no evidence that the scaffolders worked for DJ's Scaffolding then there is equally no evidence that DJ's Scaffolding was responsible for the system of work on the site.
2. In the circumstances the consideration that DJ's Scaffolding owed Mr Alelaimat a non-delegable duty of care was of itself sufficient to establish legal liability in negligence even if on occasion liability might be attracted without personal fault. It employed Mr Alelaimat as a truck driver to deliver and collect componentry. Reasonable care did not require it to attend every work-site to ensure that other contractors engaged there had instituted a safe system of work for dismantling scaffolding. Hypothetically, had it inquired of Synergy Scaffolding it would have been assured that a competent contractor had been engaged for the work.
3. As DJ's Scaffolding was not negligent it was entitled to indemnity for workers compensation paid to, for or on behalf of Mr Alelaimat from Synergy Scaffolding under s 151Z(1)(d) WCA.

Supplementary submissions on aspects of the operation of s 151Z WCA

1. Obviously s 151Z WCA may have a pivotal role to play relevant to the assessment of damages (see s 151Z(2)(c)) WCA and the adjustment of the respective rights of the parties inter se (subss 151Z(1) & (2)(d) and (e)). The main question however, the subject of the supplementary argument, relates to the possible interplay between ss 151A, 151Z (1)(b) and 151Z(2)(e).
2. The operation and application of s 151Z WCA was the cause of significant contention between the parties. Due to the complexities of the section I granted leave to the parties to file further written submissions following the conclusion of the oral hearing. I will set out the relevant submissions of the parties below.

First defendant's submissions

1. Mr Priestley submitted that the past medical expenses paid by the workers compensation insurer should not be the subject of a head of damage against the Synergy Scaffolding if otherwise liable. He argued that Mr Alelaimat has no liability to repay these monies by operation of ss 151A and 151Z WCA, as interpreted by South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1 ("Helicopters") at [164] - [185] and as such no loss could be established by Mr Alelaimat in respect to these expenses. With respect to workers compensation payments, Mr Priestley submitted that where the employer is liable to the worker in damages, s 151Z(1)(d) has no operation: Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28; CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 433; [2013] NSWCA 49 at [33]; Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357 at [43]. In relation to the operation of s 151Z(2)(e), Mr Priestley said that the statutory pre-conditions had not been satisfied in this case in order for s 151Z(1) to apply. He submitted that a mere theoretical possibility that a liability will arise is not enough to prove loss: Helicopters at [180] - [181].
2. Mr Priestley submitted that the cross claim filed by the Second Defendant seeking recovery of its compensation payments against the First Defendant pursuant to s 151Z(1)(d) would not apply if the employer was held liable to the plaintiff, as the injury was not caused in circumstances creating liability only in some person other than the employer.

Second defendant's submissions

1. Mr Rickard argued that in the event that the plaintiff obtains judgment against both defendants that s 151Z(2)(e) must be considered and that the Second Defendant will be entitled to its judgment on its cross-claim. Mr Rickard submitted that I would be entitled to assume that the plaintiff would seek to satisfy its judgment against the First Defendant as Mr Alelaimat would be entitled to damages as available under the more generous regime of the CLA and would no doubt pursue these damages as opposed to the lesser damages available under the work injury damages scheme: Gallagher Bassett Services NSW Pty Ltd v Murdock (2013) 86 NSWLR 13; [2013] NSWCA 386 at [58] - [60].

Plaintiff's submissions

1. Mr Toomey stated that in the event that judgment is obtained in favour of the plaintiff against both defendants that Mr Alelaimat would not seek satisfaction of the lesser judgment from the Second Defendant. Mr Toomey argued that in those circumstances s 151Z(1) is engaged and pursuant to s 151Z(1)(b) Mr Alelaimat would be liable to repay any workers compensation payments made to him. Mr Toomey submits that if Mr Alelaimat were liable to repay compensation for his medical expenses, then he should seek damages in that amount: cf Fox v Wood (1981) 148 CLR 438; [2001] HCA 41; and also, subss 151Z(1A) and (1B).

Decision on liability

1. For what it is worth, there is really no issue amongst the present parties that Mr Alelaimat was injured in circumstances creating a legal liability in someone to pay him damages, subject to the provisions of Part 2 CLA and Division 3 of Part 5 WCA. The question is whether he has established liability in negligence on the part of either of Synergy Scaffolding, DJ's Scaffolding or both of them.
2. There is, as I apprehend it, no real question that the relevant risk of injury is correctly identified as the risk of injury to a person within the class of persons working in or near the manual process of dismantling the scaffold by reason of a dismantled component falling and striking a member of that class. Nor is there any argument that Mr Alelaimat is a member of that class.
3. For the purpose of s 5B(1) CLA there can be no question that the risk was both foreseeable and not insignificant (paras 5B(1)(a) and (b)). The question of whether a reasonable person in the position of either Synergy Scaffolding or DJ's Scaffolding would have taken relevant precautions (s 5B(1)(c)) depends upon the identification of the relevant position of each of them. That is to say, depends in no small measure upon the formulation, nature, content or scope of their respective duties.
4. So far, I have approached these questions by reference to the provisions of s 5B CLA. I acknowledge that in the case of DJ's Scaffolding, as Mr Alelaimat's legal employer, its liability, if any, is excluded from CLA: s 3B(1)(f). However, the common law analysis of breach mandated by Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 ("Wyong v Shirt") which does apply to any liability of DJ's Scaffolding is not materially, and certainly in the circumstances not practically, different. The question of the response of the reasonable person to the risk of injury which Wyong v Shirt requires to be addressed is not materially different from subss 5B(1)(c) and (2).
5. It is necessary, obviously, to consider the position of each of Synergy Scaffolding and DJ's Scaffolding separately. However, I wish to address the consideration which was a focus of the approach of each of the parties concerning vicarious liability for the casual negligence of an unidentified scaffolder, or scaffolders, causing the "bench" to fall as it was dismantled from the structure of the scaffold or while it was passed from hand to hand. While such an event may well be the cause of something falling during the process of dismantling, there is of course no direct evidence that this occurred although doubtless it is one of the available inferences. But it is not the only available inference. There is no evidence before me, expert or otherwise that industry practice requires other than the manual dismantling of scaffold. Uninstructed by expert evidence, I am unable to find the task would, or could, be performed otherwise than manually. The evidence before me does not establish that there is some standard procedure or methodology which is normally followed when dismantling scaffolding. But this does not exclude as an available inference that a "bench" or other component may fall because of systemic, as opposed to casual, negligence. Where the system requires equipment or components to be passed down by hand from a height there is a foreseeable risk that something might drop or fall due to an act or omission on the part of one or other of the workers involved in the process which legally speaking, falls short of negligence. And given that such an event is foreseeable even without the intervention of negligence on the part of a worker or workers, reasonable care on the part of the party in charge of the work may require the institution and maintenance of a safe system of work which includes keeping the area at ground level where dropped items may fall, clear of other workers. I interpolate that there is no evidence that the "bench" which struck Mr Alelaimat was deliberately dropped or thrown down. Equally there is no evidence of any other component having fallen down during the dismantling process.

The liability of Synergy Scaffolding

1. I have already referred to the very poor impression that Mr Hamka made and the difficulty I have in accepting his evidence except to the extent to which it is consistent with or supported in some way by other evidence which I have accepted. While Mr Priestley criticised Mr Alelaimat as a witness, where the evidence conflicts, and bearing in mind they were the only two lay witnesses to give evidence at the hearing, I prefer his evidence to that of Mr Hamka. As it may be important to liability issues, I reject Mr Hamka's evidence that he did not direct Mr Alelaimat to assist the scaffolders at the Artarmon site on 10 October 2012. I positively accept Mr Alelaimat's evidence that Mr Hamka gave those instructions. In my judgment this finding is consistent with the nature of the relationship between Mr Alelaimat and Mr Hamka, quite apart from what I regard as the preferable account.
2. First, it was Mr Hamka who hired Mr Alelaimat to drive Synergy Scaffolding's expensive truck and cart what must have been its significant income producing asset of scaffolding componentry. Secondly, It was Mr Hamka who trained Mr Alelaimat in the proper performance of the work including how to stack the scaffolding preparatory to loading, how to use the Hiab equipment fitted to the truck and appropriate liaising with crane drivers when the equipment was required to be onloaded or offloaded by crane at a given site. As Mr Hamka said, I paraphrase, it is one thing to drive a truck carting soft drink and quite another to cart scaffolding. I repeat it was Mr Hamka who trained Mr Alelaimat, not anyone associated with DJ's Scaffolding. Thirdly, there is no evidence that anyone associated with DJ's Scaffolding ever gave any instruction to Mr Alelaimat about where to work or how to perform the work. Those instructions were given solely by Mr Hamka. He was in daily contact with Mr Alelaimat to direct him to work sites to deliver or collect scaffolding and to redirect him if he became available for another assignment during the working day. It was normal, according to Mr Hamka, for Mr Alelaimat to contact him to receive those further instructions, if he became available for another job during the day. Fourthly, there is no evidence that anyone from DJ's Scaffolding or any other identified labour hire "sub-contractor" who might have been utilised by Synergy Scaffolding from time to time gave Mr Alelaimat any instruction at any time during the period he had been engaged to perform work on Synergy Scaffolding's jobs. Fifthly, there is no evidence that anyone "employed " by DJ's Scaffolding was even on site on 10 October 2012.

The liability of DJ's scaffolding

1. As I have said it is accepted by the parties that the legal relationship of employer and employee at all material times subsisted between DJ's Scaffolding and Mr Alelaimat even if the content and daily observance of the relationship did not rise above its bare legal bones. Nonetheless as employer DJ's Scaffolding owed Mr Alelaimat the usual non-delegable duty of care to avoid unnecessary risks of injury. Part of the content of that duty was the duty to institute a safe system of work. Clearly, on the findings I have made, Mr Alelaimat's injury occurred in the course of his employment because of the negligence of Synergy Scaffolding by its failure to institute a safe system of work. As Mason P observed in Christie (at [47]), liability for injury to a person to whom a non-delegable duty of care is owed may be imposed regardless of personal fault provided the injury was caused by lack of reasonable care on the part of someone, not necessarily the employer, but within the scope of the relevant duty of care. Again, as Mason P observed in Christie (at [65]), a non-delegable duty cannot be delegated (or avoided) by abdication. I observe in passing, Mason P also observed that the pro hac vice doctrine may have no application to an "employer that operates the labour hire business" (Christie at [67]).
2. However, it does not follow that liability for Synergy Scaffolding's negligence will be sheeted home to DJ's Scaffolding. In particular, a question may arise about whether Mason P's "second requirement" of whether Mr Alelaimat's injury occurred within the scope of DJ's Scaffolding's duty is satisfied here. In Dib Group Pty Ltd v Cole [2009] NSWCA 210 (at [54] - [55]) Basten JA expressed the following principles: "The employer's duty, however effected, to adopt safe systems of work and to provide proper plant and equipment, will operate differently on its own premises and in circumstances over which it has full control, as compared with premises under the control of others and circumstances over which it does not have control. Where the safety of premises is at stake, as in this case, it is appropriate to ask quite specific questions with respect to what may be expected of an employer exercising reasonable care for the safety of its employees. For example, is it reasonable for the employer to request or require access to premises to carry out its own safety inspection? Is it necessary (and sufficient) if the employer inquires of the occupier what steps it has taken to conduct such an assessment? Is it necessary (and sufficient) for the employer to inquire in specific terms of its own employees as to the nature of the conditions they encounter at other premises? These questions are analogous to the approach to be adopted with respect to the acquisition of plant and equipment discussed in Davie [v New Merton [1969] AC 604]. In such a case, it is not sensible, nor consistent with the requirement to take reasonable care, to treat the employer as "delegating" its duty to provide safe equipment to the manufacturer or supplier. So long as it has acted reasonably, the employer will not be liable for injury to its employee resulting from a defect in equipment or plant not identifiable by reasonable care on the part of the employer, even though the defect is the result of negligent manufacture."

Vicarious liability

1. Although there was much argument before me about whether, in particular, Synergy Scaffolding was vicariously liable for the casual negligence of one or other of the scaffolder's engaged to perform dismantling work on 12 October 2012, for reasons I have given, I am not satisfied that casual negligence on the part of any individual scaffolder has been established. Rather for the reasons I have rehearsed, I am of the view that the failure to exercise reasonable care was systemic not casual.
2. Mr Toomey also relied on the doctrine of res ipsa loquitor and referred me to Schellenberg, to which I have referred to in a different context, in that regard. There is no doubt, as I think was tacitly accepted by all counsel, that the circumstances of Mr Alelaimat's injury fell within the type of case normally associated with an inference of negligence that may be drawn from the occurrence of the event itself. I appreciate that I have identified a cause of the injury as the failure of Synergy Scaffolding to institute and maintain a safe system of work, including competent supervision of compliance of the scaffolders with the system so instituted. It remains that the physical cause of the fall of the specific bench that struck Mr Alelaimat is unknown. But the site, at least the scaffolding on the site, the system and the workers, whom Mr Hamka described as "labourers", must have been all under the control of Synergy Scaffolding. Were I wrong in my analysis of negligence, I would infer that the accident that befell Mr Alelaimat was one which in the ordinary experience of human kind does not occur without negligence on the part of a person in the position of Synergy Scaffolding.
3. Given what I have said about Blatch v Archer and Jones v Dunkel and as Mr Alelaimat recognised some of the scaffolders from Synergy Scaffolding's yard, were it necessary to find casual negligence on the part of an individual scaffolder on site, I would have inferred that he was a person for whose conduct Synergy Scaffolding may be vicariously liable. Given that there is no evidence, and Synergy Scaffolding would be in the best position to introduce this evidence, that the scaffolders were employed by a particular employer other than Synergy Scaffolding, the difficulties which may arise in application of the pro hac vice doctrine do not arise in this case. In any event it would seem to me that the inference in this case is available that if the scaffolders were employed by someone other than Synergy Scaffolding, the services for the purpose of dismantling the Artarmon site scaffolding had been temporarily transferred to Synergy Scaffolding so as to constitute the person involved a "pro hac vice servant" of Synergy Scaffolding "with consequent liability for his negligent acts": Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34 at 641 per Gibbs CJ; Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd (1947) AC 1 at [13].

Contributory negligence

1. Contributory negligence was but faintly raised by Mr Priestley. Given the circumstances I am not satisfied that Synergy Scaffolding has established on the balance of probabilities that Mr Alelaimat failed to exercise reasonable care for his own safety in the circumstances in which he was injured.

Conclusion as to liability

1. It follows that only Synergy Scaffolding is liable in damages for the injury suffered by Mr Alelaimat. I will deal with DJ's Scaffolding's claim under s 151Z(1)(d) of WCA after dealing with the question of quantum.

Quantum

1. Mr Alelaimat was born in the Hashemite Kingdom of Jordan in 1978. Accordingly, he was around 32 at the date of the accident and is now 42.
2. He graduated from the University of Jordan in 2001 having been awarded a Bachelor of Economics. He arrived in Australia in 2008 on a student visa to study the English language. He met his wife (from whom he is now divorced) here. They married in 2010. He worked in various manual occupations including as a soft drink delivery driver until he commenced work for Synergy Scaffolding in around March 2011.
3. I have dealt with the evidence relevant to quantum above and I will not repeat it here. The most significant dispute, is of course, that of medical causation relating to the aetiology of the significant L4/5 disc herniation, against a background of congenitally short pedicles leading to symptomatic spinal canal stenosis, surgically treated by Dr Al-Khawaja in September 2014. As I have said that procedure was not significantly successful in relieving Mr Alelaimat's back symptoms and he has received different modalities of various treatments since. He also has suffered ongoing symptoms in his left shoulder and right hip.
4. In his later reports of 10 September 2018 (CB 121) and 27 February 2019 (CB 124), Dr Al-Khawaja has expressed the opinion that Mr Alelaimat requires further surgery by way of anterior lumbar interbody fusion at the L4/5 level (CB 122). In his report of 27 September 2019, Dr Al-Khawaja explained that as a consequence of the surgery performed September 2014, the L4/5 area in Mr Alelaimat's back is "more unstable" (CB 124). For this reason, he recommended the spinal fusion. Dr Cochrane seems to support the need for either disc replacement or spinal fusion.
5. He continues to suffer from back pain which fluctuates in severity. He also has ongoing symptomatology in his shoulder and right hip, but frankly this does not appear to be very significant.
6. There are undoubted aspects to Mr Alelaimat's presentation which cannot be accounted for solely by the pathology in his low back. I have referred to the opinion Dr Benjamin from early 2013 that his presentation was consistent with malingering. Overall, I do not accept this opinion. It was expressed early on, and I accept that he suffered from a significant spinal condition at that time, which Dr Benjamin does not appear to have accepted. Moreover, I am satisfied from the report of Dr Russo that there are clinical complications arising out of his chronic pain condition which in my judgment can be a confounding issue in his presentation. There has been no doubt a degree of abnormal illness behaviour and his clinical presentation at times has been verging on the bizarre including the complete absence of an ability to undertake straight leg raising tests at times. This may be explained by excessive guarding due to the subjective apprehension of increased pain on movement.

Damages for non-economic loss

1. Mr Alelaimat's damages payable by Synergy Scaffolding are to be assessed in accordance with the provisions of Part 2 CLA. Damages for non-economic loss are covered by s 16 which requires an evaluative assessment of the severity of the non-economic loss in the case at hand as a proportion expressed in percentage terms of the maximum amount for non-economic loss which may only be awarded in a most extreme case. The current maximum is the sum of $693,500. Mr Alelaimat claims 40 percent of a most extreme case. Had I accepted the approach of Synergy Scaffolding it is unlikely that Mr Alelaimat's severity would have crossed the threshold of at least 15 percent of a most extreme case below which no damages may be awarded: s 16(1) CLA.
2. I need to bear in mind the unsatisfactory aspects of Mr Alelaimat's presentation. But notwithstanding these he was a young man at the date of injury, the injury is severe, allowing for a degree of exaggeration he has suffered, I accept, significant ongoing pain not completely relieved by surgery or other forms of treatment including pain killing drugs. I would regard his pain as significant, rather than as severe as he presents it. In the way of these things, it probably fluctuates as he said but given the nature of the pathology involved it is also likely to inure permanently or at least for the foreseeable future.
3. I also accept that given his level of pain and disability, there is likely to be significant loss of enjoyment and amenity of life.
4. Giving considerable weight to his relative youth, I regard the 40 percent claimed as not unreasonable, but it is necessary for me to make the Seltsam Pty Ltd v Ghaleb discount for the reasons I have rehearsed. I would reduce, therefore, the 40 percent I would have awarded by a factor of 15 percent which reduces the allowances to 34 percent of a most extreme case. I allow the amount of $236,000.

Past out of pocket expenses

1. As at the date of trial the amount was mathematically agreed in the sum of $182,847.39. Of this $175,841.79 had been paid under WCA by DJ's Scaffolding's insurer.
2. Two issues arise. First, given Synergy Scaffolding's position in relation to injury, it was submitted that I would only allow medical expenses paid during the first six months totalling $25,257. As I have rejected this argument and accepted the plaintiff's argument on the balance of probabilities, I would resolve this first issue in favour of Mr Alelaimat.
3. The second issue is the issue arising out of the interplay of ss 151A and 151Z WCA having regard to the decision of the Court of Appeal in Helicopters. I have fully set out the competing arguments from learned counsel earlier in this judgment, however, given that I have found that DJ's Scaffolding was not negligent, the considerations which animated this debate do not arise.
4. As it is almost inevitable on the findings I have made that I must accede to DJ's Scaffolding's claim for statutory indemnity under s 151Z(1)(d) WCA. Either Mr Alelaimat will be bound to repay out of his damages the whole of the amount of the compensation he has received in respect of his injury under s 151Z(1)(b) or, should Synergy Scaffolding first pay the indemnity and then Mr Alelaimat's damages it will be entitled to a defence for the whole of the amount of compensation indemnified, including s 60 WCA and the like expenses, reducing its liability to Mr Alelaimat accordingly.
5. In my judgment applying the principles in Fox v Wood, Mr Alelaimat has a liability to repay the amounts paid under WCA and accordingly will suffer a foreseeable and recoverable loss in accordance with the tort compensatory principle.
6. I will allow the whole of the amount claimed of $182,847.39.
7. I will allow liberty to apply on this head damages lest additional expenses have been incurred and paid under WCA during the period my decision has been under consideration.

Damages for past economic loss

1. I am satisfied that the findings I have made preclude Mr Alelaimat from his pre-injury occupation as a truck driver in the scaffolding industry. I am satisfied that the injury precludes him from repeated bending and heavy lifting, the exertion of effort and strain to apply straps and climbing onto and clambering over a truck loaded with scaffolding. The injuries preclude him from meaningfully engaging from many forms of manual work.
2. It is clear that at times Mr Alelaimat has, in the early years, attempted to return to suitable duties in Synergy Scaffolding's yard and in May 2015 he unsuccessfully attempted a trial of work with Super Cheap Auto. However, it is no doubt in this area that the aspect of abnormal illness behaviour or exaggeration has the capacity to have its greatest effect.
3. Although Mr Alelaimat received a tertiary education in Jordan, his employment history in Australia has been restricted to skilled or semi-skilled manual work rather than otherwise. Given that English is not his first language and his command of it is less than perfect, I do not regard him as realistically qualified for professional work. Doubtless there are jobs he could perform, and I accept the argument put on behalf of Synergy Scaffolding that his effort to find work notwithstanding his evidence must be less than maximal.
4. I bear in mind that what is required is an assessment of the impairment of his earning capacity, rather than loss of earnings. Approached this way his diminution of earning capacity is significant. However, he has a residual capacity, which in my judgment has some value on the open labour market. I would not treat him as totally incapacitated, although he must have had periods of effective total incapacity in the acute phase of his injury which includes the development of the large herniation of the L4/5 disc and in the period following surgery.
5. It seems to me that the appropriate way to calculate the past loss is to calculate his total loss and apply a discount to take account of Mr Alelaimat's residual capacity. I would rate the chance of his pre-existing condition becoming symptomatic in the past 10 years as so slight as to be speculative and I will not make an addition discount for the Seltsam Pty Ltd v Ghalab factor.
6. I accept the figures calculated by Mr Morgan of Counsel. They are based upon the evidence of the amount earned by Mr Alelaimat's according to Exhibits C, D and F. These demonstrate an average of $1,172 gross per week which produces a net figure after tax of $920 per week. This involves a period of approximately 500 weeks. Allowing a figure of $700 per week, notionally allowing a residual capacity of approximately $300 per week which takes into account the acute phases of his condition a figure of $350,000 is produced which I allow.

Past employer's superannuation contributions

1. I would allow nothing for the past under this heading. One works on the counter-factual that Mr Alelaimat would have continued in the same or similar occupation uninjured. It is obvious that no such contributions were being made by either DJ's Scaffolding, his employer or for that matter Synergy Scaffolding. He was working for them on an "ABN basis" selling his labour as a "sub-contractor".

Future economic loss

1. Section 13 CLA applies. It seems inevitable that Mr Alelaimat's situation is likely to continue unchanged as he is now 42 and he has effectively been out of the workforce for 10 years. His diminution of working capacity is likely to neither improve nor worsen. I would adopt the same approach to the future as the past, but I would increase the usual vicissitudes of 15 percent to a figure of 25 percent to take into account the Seltsam Pty Ltd v Ghalab factor.
2. I would accept Mr Morgan's argument that there is a mathematical coincidence between the figure for average weekly earnings in New South Wales and the level of Mr Alelaimat's actual pre-injury earnings and accordingly I will adopt that figure as a guide. I accept his calculations that the net figure is $1,165, from which I will make a deduction of $350 for residual earning capacity. This leaves a figure of $815 per week. I will allow 25 years for the future up until the age of 67 by which Mr Alelaimat will be eligible for the age pension. The 5 percent multiplier for 25 years is 753.6. This produces a figure of $614,184. After deduction of the figure of 25 percent, I allow $460,638.

Future employee contributions

1. I think it appropriate to allow employer superannuation contributions for the future. It seems unlikely that Mr Alelaimat would necessarily have continued with DJ's Scaffolding or Synergy Scaffolding even if the probabilities are that he would have continued in a similar occupation uninjured. The Najdovski v Crnojlovic [2008] NSWCA 175 rule of thumb I am informed is 14.23 percent. I will allow a figure of $65,548.

Fox v Wood

1. The Fox v Wood component for income tax deducted from weekly payments of compensation as at the date of hearing was $41,500 which I will allow. Given there may have been further payment since I will allow liberty to apply.

Future out of pocket expenses

1. Dr Al-Khawaja, as I have said, expressed the view that Mr Alelaimat requires an anterior intervertebral spinal fusion at the L4/5 level. He gave a very rough estimate of $100,000 for the total cost of this procedure. Notwithstanding Dr Cochrane's apparent agreement, I must say that given the time that has passed since the recommendation was first made and since the surgery on 6 September 2014, I regard it as quite unlikely that this surgery will ever eventuate. On the other hand, there is probably a need to make some allowance for the prospect of future treatment including a small prospect of a need for future surgery. I propose to allow the figure of $20,000.

Future commercial domestic assistance

1. There is no claim for past gratuitous care or commercial care for that matter. Mr Alelaimat's personal circumstances are modest. He is divorced from his wife and resides with a friend in rented accommodation. He has not been receiving formal assistance since the accident on a structured basis and it seems to me unlikely that he will incur the expenditure for commercial assistance in the future. I decline to allow anything for this head of damage.

Summary of damages Non-economic loss $236,000.00 Past out of pocket expenses $182,847.39 Past economic loss $350,000.00 Future economic loss $460,638.00 Future employer contributions to superannuation $65,548.00 Fox v Wood $41,500.00 Future out of pocket expenses $20,000.00 Future commercial care Nil TOTAL $1,356,533.39

Work injury damages

1. Were I wrong to find DJ's Scaffolding not negligent, I record that there was no issue that Mr Alelaimat's level of permanent impairment was greater the s 151H WCA threshold of "at least 15 percent". Given the limitation on damages that may be awarded under Division 3 of Part 5 WCA his damages would have been restricted to the amounts I have allowed for past economic loss, future economic loss, future superannuation contributions and the Fox v Wood component for my calculation of CLA damages.

DJ's Scaffolding's claim for statutory indemnity

1. On the findings I have made DJ's Scaffolding or rather the Workers' Compensation Nominal Insurer, is entitled to recover the statutory indemnity provided for by s 151Z(1)(d) for the compensation paid to, for or on behalf of Mr Alelaimat limited to the amount of the damages I have assessed.
2. Evidence was led as to the amount of compensation paid at the hearing but given the time that has elapsed during which my judgment has been under consideration, I will content myself with making a declaration of right and permitting the Workers' Compensation Nominal Insurer and Synergy Scaffolding to bring in Short Minutes of Order setting out the judgment that should be entered in respect of the indemnity including interest under s 100 CLA.
3. The cross-claims seeking statutory contribution should otherwise be dismissed and Synergy Scaffolding should pay the Workers' Compensation Nominal Insurer's costs of the cross-claims including the claim for statutory indemnity.

Costs

1. Given that the claim in respect of liability of DJ's Scaffolding was a claim for work injury damages there may be complexities in relation to the costs regime applicable and I will allow liberty to apply to Mr Alelaimat and the Workers' Compensation Nominal Insurer in respect of that issue.

Orders

1. My orders are: 1. Judgment for the plaintiff against the first defendant in the sum of $1,356,533.39; 2. Judgment for the second defendant as against the plaintiff; 3. The first defendant to pay the plaintiff's costs of the proceedings; 4. Declare that the first defendant is bound to indemnify the second defendant in accordance with the provisions of s 151Z(1)(d) Workers' Compensation Act 1987 (NSW) for compensation paid to the plaintiff with interest under s 100 Civil Procedure Act 2005 (NSW); 5. Direct the first and second defendants confer with a view to agreeing upon the amount of the judgment necessary to give effect to order (4) and to bring in short minutes of order within 14 days by lodging them electronically to the email of the associate to Campbell J. In default of agreement liberty to apply on a date to be fixed in consultation with Campbell J's associate; 6. Cross-claims otherwise dismissed; 7. The first defendant to pay the second defendant's costs of the cross-claims; 8. Liberty to the parties to apply within 14 days in relation to damages calculations in accordance with my reasons and costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 May 2022