Badra v Value Constructions Pty Ltd & Ors

Supreme Court of NSW|2023-05-19|Before: Cavanagh J

Judgment

The plaintiff, Mr Mohamad Badra, claims damages for personal injury arising out of an accident which occurred on a construction site on 19 June 2020.
At the time of the accident, the construction site was under the management and control of the first defendant, Value Constructions Pty Ltd, as the builder. The plaintiff was working on the site in his capacity as an employee of the second defendant, MMM Cement Rendering 1 Pty Ltd.

The circumstances of the accident

The plaintiff arrived in Australia in 2014 from Lebanon. He arrived as a refugee and remains here on a bridging visa. He says that, despite having been in Australia for nine years, he speaks very little English and in 2020, he spoke even less. The defendants dispute this. I do not know whether the plaintiff is able to read English.
The plaintiff is currently aged 40. He is single and has no children.
Prior to coming to Australia, he worked in a petrol station. He does not have any post-school training or qualifications.
Since coming to Australia, he has worked in various jobs, all of an unskilled or semi-skilled nature. In the months before his accident, he commenced work with the second defendant. He was employed as a cement renderer or, at least, an assistant in the rendering process.
In the days before the accident, he had been working on the construction site at 605 Forest Road in Peakhurst with three other persons employed by the first defendant: Osman Badour, Imadeddine ("Emad") Zod and Khedr Kamal.
The site comprised of two residential buildings: one facing Forest Road and the other facing Iraga Avenue. At some point before the accident, the second defendant was engaged by the first defendant to undertake rendering of the Iraga Avenue house. This involved applying the render and then applying Rockcote over the render.
According to the plaintiff, at some stage prior to the accident and before the rendering had been completed, the first defendant had arranged for the tiling of the garage to take place. That must be correct because the garage was tiled on the day of the accident and the second defendant was still carrying out rendering work in and around the garage.
The plaintiff says that, prior to 19 June 2023, he noticed that there was a stormwater drain positioned on the garage floor. It had been covered on a temporary basis by gyprock, although he says that it could not have been covered completely because he witnessed rubbish being removed from the drain. The defendants say that at some stage, a drain cover/grate had also been put in place. Mr Mourad says that this was long before the accident.
On the morning of the accident, the second defendant placed plastic sheeting over the tiled garage floor to protect the tiles from falling render and Rockcote as the workers treated the walls.
Immediately prior to his accident, the plaintiff was assisting with the rendering process. In particular, he was wiping down the wall beside the garage door opening, which was close to the stormwater drain. He says that he then walked across the garage floor and fell into the stormwater drain hole which was covered with black plastic. As far as I can determine, that is where he was found when the ambulance officers arrived. The metal grate was not present. Although he did not fall a great distance, the accident was enough to cause him injury, including to his right shoulder. He says that he suffered other injuries in the accident, such as an injury to his neck, back and hip.
Whilst he had seen the drain on earlier occasions before it was covered with the black plastic, he did not appreciate that it was there when he fell. The grate was not in position at the time and the existence of the drain was obscured by the plastic.
The plaintiff says that after he fell into the drain, he pulled himself out of it and remained on the garage floor. At 11:29am, someone called an ambulance. The NSW Ambulance records state that Mr Zod made the call. Those records also note that the caller "[would] not state why or how" the plaintiff fell. The paramedics arrived on site at 11:49 am.
Police also attended the scene and took photographs of the work site. These photos show the edge of the garage, both inside and outside. There was scaffolding in situ adjacent to the garage so that the second defendant could undertake the rendering. The land underneath the scaffolding was rough and uneven and there was a big hole containing an agricultural pipe.
The plaintiff also says that Mr Mourad was not at the Iraga Avenue house when the accident occurred. Mr Mourad agrees with this, although he says that he was there within minutes of being notified of the accident. The plaintiff says that the other three employees of the second defendant were still at the site when he fell, although he gave inconsistent evidence as to where they were and what they were doing. He said in cross-examination that they were there and he told them what had happened.
During the hearing, the plaintiff marked on a police photograph exactly where he had been working in the moments prior to the incident, which was on a small patch of wall in a front corner of the garage. That same photo depicts a metal grate sitting on top of the black plastic covering the drain hole. This indicates that, if the grate was over the drain at some earlier time, whoever laid the plastic must have removed the grate from the drain before putting the plastic down. Whether or not they then placed the grate back onto the plastic, covering the hole, is disputed. Mr Mourad says that he had placed the grate over the drain at some earlier time.
The second defendant's workers were not called to give evidence. It is common ground that they laid the plastic on the ground. As such, only the plaintiff gave evidence as to how the metal grate came to be on top of the plastic, as shown in the police photograph. He said that after the accident and before any police or ambulance officers arrived on scene, he saw Mr Zod bring the grate from somewhere and place it over the plastic.
This detail is important. If Mr Zod did move the grate, he might have done so with the intention of preventing further accidents. However, the plaintiff suggests that it was a deliberate attempt to conceal the existence of the hole in the first place or, put another way, to make it look like the drain hole was covered with the grate at the time of the accident.
The case put by the first defendant is that the accident could not have occurred as alleged because the drain cover was in place before the accident. The plaintiff accepts that, having regard to the case he has pursued, he cannot win if the cover was in place at the time of his accident. This is the central issue in the case.
There is no dispute that he was working in the area around the garage floor when he fell. No party suggested that he was working on the scaffolding and fell from it, despite some reference to this in the contemporaneous documents.
The only alternative version put to him was that he merely slipped on the plastic sheeting that was on the garage floor. It was put to him that the grate was over the plastic when he fell and that he fell next to the grate by slipping on the plastic. The plaintiff rejected this. The first defendant did not suggest what might have caused the plaintiff to slip on the plastic as he was walking across it.
The first defendant did not put to the plaintiff that he fell in a hole or void in the dirt outside the garage, although it relied on a contemporaneous document which contained such a reference. The second defendant pursued a case that the hole or void into which the plaintiff fell was outside the garage.
It was put to the plaintiff that a police officer asked him where he fell and that he told the officer he had fallen on the dirt outside the garage. He replied that he had not said that; Mr Mourad had. He also claimed that Mr Mourad had spoken to the nursing staff at the hospital on his behalf. Mr Mourad was at the hospital, as he said that he drove the plaintiff home from hospital.
There was some inconsistency in the plaintiff's evidentiary statements. In his first statement, he said that when he fell, he was walking to the opposite side of the garage where Mr Zod, Mr Badour and Mr Kamal were working. He changed that evidence in his second statement, stating that he was walking to a point in the garage where those employees had been working but they were no longer there. It was put to him during cross-examination that he changed his evidence deliberately to ensure that there would be no witnesses to challenge his version of events. It was put to the plaintiff that he was lying about the presence of gyprock under the plastic sheeting.
There was a substantial challenge to his credit on a range of issues, including damages. It is plain that there are some inconsistencies in his evidence generally and exaggeration in his evidence on damages, but it does not necessarily follow that his evidence on liability should not be accepted.

Mr Mourad's evidence

Mohamad Mourad is the sole director of the first defendant. He has been operating the company for over 30 years. He accepts that he was in charge of the construction site and was responsible for the safety of the site at the time of the accident. He says that he carried out daily risk assessments of the construction site and conducted a daily walk-through to check for safety hazards. He subcontracted the cement rendering to the second defendant.
Mr Mourad prepared a statement dated 30 August 2022 and a supplementary statement dated 21 April 2023. He also prepared an incident report and there is a record of the information he provided to SafeWork.
Mr Mourad says that work commenced on the construction project in November 2019 and it took about 12 months to complete. He was onsite full-time and engaged subcontractors to perform various parts of the building work. The project involved the demolition of one dwelling with a dual frontage and the erection of two houses which faced two different streets.
Mr Mourad was aware that the plaintiff was an employee of the second defendant. He said so in his own incident report, although he did not tell the SafeWork inspector that.
He observed that there were up to four or five employees of the second defendant working on the site from time to time. In accordance with his usual practice, he made sure that the principal of the second defendant introduced all of its workers to him before they commenced work on the site. He recalled that the plaintiff was a labourer who assisted the cement renderers.
During the period in which the second defendant's employees were rendering on the site, there was rainfall which caused them to temporarily cease work. Whilst they were away, Mr Mourad arranged for the garage floor of the Iraga Avenue house to be tiled. He says that the tiler cut around the stormwater drain. He says that he purchased the metal grate subsequently and installed it at some point before the day of the accident. He recalls that the tiling work in the garage was completed in May 2020.
He says that from the time of its installation, he did not remove the grate from the top of the drain. He does not believe that there was ever any need to remove the metal grate, such as to remove rubbish or debris from the drain. Of course, it must be that, despite that belief, and assuming the correctness of his evidence, the second defendant removed the grate to place the plastic underneath it on the day of the accident.
Why that would have been necessary is unclear, although there is a suggestion that the grate was used to keep the plastic in position. There may be other reasons why the workers might have removed the grate covering the stormwater drain but, as no one called the second defendant's employees, there is no evidence as to why it was removed and placed above the plastic (on the defendants' case).
At the time of the plaintiff's accident, the project was almost complete. Mr Mourad believes that the cement renderers had about one week to go before their work was finished. He says that the rendering had been completed inside the garage one or two weeks prior to the incident and that on 19 June 2020, the renderers were applying Rockcote to the external walls above the garage (hence, the need for the scaffolding).
That same day, Mr Mourad arrived on site between 6:30 am and 7:00 am. He noticed a piece of black plastic covering the tiles at the front of the garage floor, which extended about one metre into the garage. He says that nobody had consulted him about laying the plastic. He did not observe it being laid but he did observe the metal grate situated on top of the black plastic sheet. Assuming the correctness of his evidence, it must be that the second defendant lifted the grate off the drain before laying the plastic and then placed grate back on the drain on top of the plastic. Mr Mourad did not see any gyprock positioned vertically to the left of the stormwater drain.
Mr Mourad says that the renderers completed their work at the Iraga Avenue house at around 10:00 am to 11:00 am and left. He remained there for a short time and then drove his car to the Forest Road house. If this is so, it must follow that he was the last person on the site before the accident and none of the other workers were on site when the accident occurred. It must be that the plaintiff was on site alone at the time of the accident. It must also be that Mr Mourad was there some minutes prior to the accident and was in a position to observe whether the grate was on or off.
Mr Mourad says that sometime after arriving at the Forest Road site, he received a call from the Mr Zod, who informed him that the plaintiff had fallen. Mr Mourad's telephone records indicate that he received this call from Mr Zod at 11:26 am. He gave evidence that as soon as he received the call informing him of the plaintiff's accident, he drove around the block to the Iraga Avenue site. Although the houses backed onto each other, the drive between houses might have taken 10 minutes.
Two police and two ambulance officers had already arrived by the time Mr Mourad reached the plaintiff. The records show that the emergency personnel arrived on scene about 20 minutes after the plaintiff's accident. Either Mr Mourad did not travel back to the Iraga Road house immediately or he was further away than he suggests when he was informed of the accident.
Mr Mourad says that when Mr Zod called him to tell him about the plaintiff's accident, Mr Zod was "far away" from the site. In his first statement, he says that Mr Zod arrived back on site after he did (which would also have been after the police and ambulance officers arrived). If that be true, it seems unlikely that Mr Zod could have put the metal grate back over the drain after the accident occurred. However, when Mr Mourad arrived, he says that he saw the metal grate in the same position as it had been when he left the Iraga Avenue site.
Mr Mourad also saw the police officers attending to the plaintiff, who was fully conscious. He heard one officer ask the plaintiff (in English), "where did you fall?" to which the plaintiff apparently responded, "I fell on the dirt outside the garage". If that is the case, the plaintiff must have fallen on the dirt and then stood up and walked on to the tiled/plastic area before lying down on the plastic, where he was when the police arrived. It was not put to the plaintiff by the first defendant that he had fallen outside the garage.
During cross-examination, Mr Mourad said he did not believe that the plaintiff had fallen at all because he did not have cuts and scratches on his arms. This asserted belief is consistent with what he wrote in the incident report - that is, Mr Mourad did not believe that any accident happened at all. If no accident occurred, the plaintiff has certainly engaged in an elaborate ruse, including faking a fall and going to hospital thereafter and being diagnosed with a frank injury to his shoulder which required operative treatment. Exactly when he might have hurt himself other than that morning whilst working on that site is unclear.
Mr Mourad heard the police officers asking the renderers if any of them had witnessed the accident. Each of them said they had not. On Mr Mourad's evidence, all three must have returned to the site after the accident. The police officers then asked Mr Mourad if the plaintiff worked for him. Mr Mourad replied, "no, he's working for the renderer". He says the police did not question him further about the incident.
In his first statement, Mr Mourad says that he then travelled to the hospital with Mr Zod and stayed with the plaintiff "for a short time". However, in his supplementary statement, Mr Mourad says that he gave the plaintiff a lift home from the hospital. He states that on the way home, the following conversation took place between them: "I said to the plaintiff in Arabic words to the following effect: 'Are you going to claim compensation?' He said to me in Arabic words to the following effect: 'Yeah, I'm going to do that. I'm going to see Dr. Hamid and he's going to send me to one hundred doctors. I'm not only going to tell him [about] my shoulder, I'm going to tell him [about] my back, I'm going to tell him everything. And I'm going to claim compensation and apply for permanent residency as well.'"
In his first statement, Mr Mourad says that he never discussed the circumstances of the accident with the plaintiff. He did not see the plaintiff again until the hearing of this matter. That is, although he went to the hospital and gave the plaintiff a lift home and although the plaintiff told him he would be claiming compensation, Mr Mourad (as the person in charge of the site) never asked the plaintiff what happened.
In cross-examination, Mr Mourad accepted that: 1. he did not witness the accident; 2. he was not present at the Iraga Avenue site at the time; 3. he had not spoken to the plaintiff about how the accident occurred; 4. upon being notified of the incident, Mr Zod told him that the plaintiff had fallen but did not say how it had happened; and 5. his belief about the circumstances of the accident - that the plaintiff had fallen in the dirt - was based upon the overheard conversation between the plaintiff and the police officer on 19 June 2020.
As such, the first defendant's contention that the plaintiff has fabricated a version of events (that he fell into the drain hole and that there was no drain cover in place at the time) could only be based on what Mr Mourad says he heard the plaintiff say to the police officers and descriptions of the accident in various contemporaneous documents, as well as his as his assertions that both when he left the site and when he came back, the grate was in situ.
The third defendant did not call any of the second defendant's employees to give evidence. Instead, it simply sought to highlight that the uneven dirt outside the garage could be described as a void or a hole. It admitted in its defence that the plaintiff had fallen in a void or hole. It did not run a case that no accident happened. It paid the plaintiff $160,539.57 in workers compensation benefits.
Mr Combe, for the second and third defendants, established that the area outside the garage could be described as a void or a hole, leaving open the possibility that the plaintiff had fallen onto the ground outside the garage, rather than inside the garage, albeit neither defendant called any evidence to support that theory.

Contemporaneous records

In circumstances in which the plaintiff and Mr Mourad provide differing versions of how the accident occurred, with each asserting that the other made up a version for his own purposes, and as no other witnesses gave evidence, reference to contemporaneous documents would usually be important.
Documents containing a contemporaneous record of what occurred by those responsible for keeping accurate records (such as the police, paramedics, hospital staff, SafeWork inspectors, or even the defendant) in the litigation context are often critical in assessing which version of events should be accepted.
In this case, the versions contained in the contemporaneous documents are inconsistent. Further, the plaintiff denies providing the information contained in the contemporaneous documents, other than in respect of the worker's injury claim form, the existence of which was only revealed after the conclusion of the evidence. There was no examination of the plaintiff on the content of the worker's injury claim form or any challenge to what is contained in the form. Up until the discovery of the form, the case had been conducted on the basis that no contemporaneous statement made by the plaintiff existed.
The case was also conducted by the first defendant on the basis that the information contained in the contemporaneous documents emanated, either directly or indirectly, from the plaintiff. The plaintiff asserted that, as he could not speak or write in English, he could not have provided the information contained in the contemporaneous documents and someone was purporting to speak on his behalf. He rejected the suggestion that he could speak better English than he was maintaining. He was taken to documents (such as immigration documents) which tended to support that his English was not as limited as he maintained. There was reference to a medicolegal expert report which was conducted without the need for an interpreter.
On the other hand, the late-produced worker's injury claim form refers to the plaintiff needing an interpreter. The plaintiff did not speak English whilst giving evidence and I did not gain the impression that he was using the interpreter when it was unnecessary to do so. Having said that, it is difficult to accept that his English is so limited that he could not communicate at all with emergency services personnel or nurses working at the hospital. Rather, it is possible that broken English might have been interpreted incorrectly, particularly when the focus of this inquiry is on the plaintiff's state.
The contemporaneous documents contain a number of different versions as to how the accident occurred.
The NSW Ambulance records, made on 19 June 2020, record that the plaintiff tripped over come concrete and broke his fall on scaffolding. The defendants did not suggest to the plaintiff that this is what happened. The St George Hospital Discharge Notes, also dated 19 June 2020, record that the plaintiff had a trip and fall from standing, landing on his right shoulder.
Although the notes of the plaintiff's GP, Dr Mounther Tommalieh, did not provide a description of how the accident occurred, in a certificate of capacity completed by Dr Tommalieh on 2 July 2020 (which was only produced by the doctor around the time he gave oral evidence) the description of the accident states that the plaintiff was working when he fell inside the hole of a garage in which he was rendering. Dr Tommalieh said that this was the description provided by the plaintiff at his first consultation on 22 June 2020. They conversed in Arabic.
There is also the late-produced worker's injury claim form. This was completed on 21 July 2020. It was signed by the plaintiff, even though it could not have been written by the plaintiff. This document was only produced after the parties' submissions and no questions were asked about the document. The defendants did not seek to have the plaintiff recalled to question him on the document. In that document, the accident is described as follows: "rendering at worksite at 605 Forest Road Peakhurst I was walking to the other side of the building when I stepped on plastic and fell into a drainage pit which was covered by the plastic."
In particulars provided by the plaintiff's solicitors to investigators retained by one of the defendants on 27 August 2020, the accident was described as follows: "on 19 June the client was rendering a wall and was going around to the garage on site and as he walked around the corner to continue working he stepped on a hole that was covered by plastic and gyprock and fell."
Importantly the plaintiff's solicitors also said, "we are instructed that our client does not actually know if anyone saw him fall, but persons such as Mr Zod came towards him almost immediately afterwards."
It is difficult to reconcile the content of the ambulance and hospital records with the plaintiff's version of events. The plaintiff said that he did not provide that information to the ambulance officers or hospital staff.
Having said that, the late-produced documents, being the certificate of capacity completed by Dr Tommalieh (based on what was said by the plaintiff three days after the accident) and the worker's injury claim form completed a month after the accident, are consistent with the plaintiff's version of events. It is also notable that Dr Tommalieh conversed with the plaintiff in Arabic, so the language difficulties which the plaintiff relies on to support his assertion that he did not provide the information to the hospital staff or paramedics, did not exist.

Documents completed by Mr Mourad

The documents completed by Mr Mourad in the period after the accident are also of some significance.
Included amongst the documents produced by the first defendant was an accident/incident report completed by Mr Mourad at some point after 26 June 2020. The content of that report is informative as it is inconsistent with subsequent statements made by Mr Mourad. For example: 1. in answer to the question "what happened?" he wrote "unknown many statements - NO accurate"; 2. in answer to the question "what led up to the incident?" he wrote "[not] known, I believed he tried to swing on the scaffolds"; 3. in answer to the question "how exactly was the incident caused?" he wrote "not known, there was no witness, he said he tripped outside garage on soil"; 4. in answer to the question "was the person employed a subcontractor?" he wrote "employee"; and 5. in answer to the question "has the incident been investigated?" he wrote "yes, there was witness, he claimed he fell on the soil outside garage door on the soil, there is no hazard materials in that area, no one know[s] what happened to him."
In a further description of the accident, Mr Mourad said "the injured worker was lying on the concrete floor of the garage almost in the middle in the unit facing Iraga Avenue. I asked him how 'did you fall' and he said, 'on the soil outside the garage,' also this is what he told police as well and [the] ambulance person".
In his oral evidence, Mr Mourad said that he did not ask the plaintiff how he fell, contrary to what he wrote in the incident report. In the incident report, Mr Mourad was asked to describe the root cause. He said, "the injured person said he tripped outside the garage and fell and dislocated his shoulder but this is not convincing".
It is only necessary to say that the content of Mr Mourad's incident report is inconsistent with his evidence in these proceedings.
The plaintiff was spoken to by a SafeWork inspector on 22 June 2020. The inspector took a number of photographs, attended the scene of the incident and spoke to Mr Mourad. The notification report refers to conversations with the plaintiff, who said he was "going okay" with his right shoulder, had a specialist appointment booked, and was looking to return to work within 14 days.
Mr Mourad told the inspector that the plaintiff was a cement renderer and a sole trader. He told the inspector that "[the plaintiff] tripped on black plastic covering the garage slab and [fell] 1 meter into an open excavation at the front of the garage slab where he was working". The inspector then reviewed the circumstances of the accident, referring to rubble which was scattered around the site and the excavation not being backfilled. He said, considering that the injured person had failed to follow the established safe system of work and the actions taken by Mr Mourad, no further action would be taken by SafeWork.
It is significant that Mr Mourad did not mention that the plaintiff was, in fact, employed by the second defendant and did not mention the role of the second defendant at all. The source of the version of events which he provided to the SafeWork inspector is unclear. He portrayed the accident as a minor incident and attributed responsibility to the plaintiff.
The contemporaneous documents thus contain a number of different versions of how the accident occurred.

Telephone records

The further matter raised by the plaintiff is that, according to the plaintiff, Mr Mourad's telephone records do not support his assertion that he was close by when he received the call informing him of the accident. The plaintiff says that the telephone records suggest that Mr Mourad was at an address at Daisy Street, Revesby. Further, his phone records suggest at he was at Revesby an hour earlier and Peakhurst at an earlier time that morning. The first defendant agrees that that is what the records show but it does not agree that the records are accurate.
The plaintiff says this raises a doubt as to where Mr Mourad was at the relevant time. Being a further distance away would be consistent with the time it took Mr Mourad to return to the site, bearing in mind that he was informed of the accident at 11.26 am. Further, if he was at Revesby and Peakhurst earlier in the morning, he could not have been on site all morning (until 11.00 am) as he suggests.
On the other hand, the first defendant relies on the telephone records to support the assertion that Mr Zod was not at the property when he made the call to Mr Mourad.
There is a danger in relying on telephone records to identify a precise geographical position in these circumstances. I would not accept that the telephone records should be treated as entirely accurate, as positioning can sometimes vary depending on the position of the telephone tower. However, it is difficult to understand the basis on which the records have Mr Mourad at Revesby and Peakhurst an hour before the accident, when he says he was on site and was the last to leave at around 11.00 am.

Determination

In the end, I have considerable doubt about Mr Mourad's evidence for a number of reasons: 1. not only did Mr Mourad not accept any version put forward by the plaintiff but he did not really accept that an accident had occurred at all. He sought to raise this question in the form he completed after the accident; 2. despite his statements made for these proceedings about his site safety procedures, the material he produced under subpoena does not include any documents which might be kept by a builder exercising proper control and safety of a site; 3. the information provided by Mr Mourad to SafeWork is somewhat telling. He did not mention the role of the second defendant at all and he seems to have portrayed the accident as a minor one, wherein the plaintiff fell over in the dirt or rubble adjacent to the building. It seems likely that Mr Mourad would have known that the second defendant was uninsured. At the very least, he took no steps to check the insurance of the second defendant; 4. Mr Mourad's oral evidence and the incident report which he completed are inconsistent as to whether he spoke to the plaintiff about how the accident occurred or whether he only heard the plaintiff informing the police of what had occurred. His evidence that he never actually asked the plaintiff what happened is difficult to accept; 5. in order to accept Mr Mourad's evidence, I would have to accept that the plaintiff speaks English at a reasonable level. The plaintiff denies this and there is no independent evidence that he does; 6. Mr Mourad said that all of the second defendant's employees had left the site before him that morning, so the plaintiff must have been alone on the site at the time of the accident. However, the second defendant's employees were all seemingly onsite after the accident. It is difficult to accept that everyone had left the site other than the plaintiff before the accident, bearing in mind that all of the second defendant's workers were involved in the "Rockcoting"; 7. at the very least, the telephone records raise a doubt as to Mr Mourad's movements on the morning of the accident, particularly as to whether he was on site when he suggests that he was. If he was not there, he could not have observed the things that he says he did; 8. whilst I would not place too much weight on impression or demeanour, it did seem to me that Mr Mourad was keen to advocate his case. His evidence, just like the incident report and the information provided to SafeWork, was self-serving; 9. Mr Mourad's statement that the plaintiff told him as he was driving him home from hospital that he would be pursuing a claim for compensation based on made up injuries seems implausible. The plaintiff might have signalled an intention to claim compensation but the proposition that he was already thinking about claiming that he had sustained injuries to parts of his body that he did not injure seems improbable. It might be asked: why would he be thinking like that? He was a middle-aged man without residential status who had been receiving a good income, working in a good job and who had just been treated at the hospital and discharged. The idea that he was already contemplating a long-term fraud and telling the person who he would be suing about it seems far-fetched. Mr Mourad did not mention this in his incident report or tell the SafeWork inspector about it; 10. having regard to the incident report completed by Mr Mourad and the information he provided to SafeWork, it is clear that Mr Mourad wanted to convey the idea that, if the accident occurred, it occurred in circumstances in which it was the plaintiff's fault and was minor in nature (that is, it is not his responsibility or the responsibility of the second defendant); 11. Mr Mourad's doubt about whether any accident occurred on his building site would seem to be inconsistent with the fact that the plaintiff was found on the garage floor having sustained, at the least, a frank injury to his shoulder; and 12. Mr Mourad said that he installed the metal grate some time before the day of the accident and could think of no reason why anyone would move it. Yet, on his evidence, not only did the second defendant lay plastic without him knowing about it until shortly before the accident, but someone thought it was necessary to lift up the heavy grate and put the plastic underneath the grate, rather than laying the plastic over it. No explanation has been offered as to why that would have occurred.
As I have identified, there are some inconsistencies in the plaintiff's evidence. He changed some of his statements between his first and second statements. However, the critical point has always remained the same: he fell because of the absence of the grate covering the drain hole. That is consistent with his explanation to his GP, with whom he conversed in Arabic.
It may be that because of the versions contained in the police, hospital and ambulance records and based on the instructions of Mr Mourad, the first defendant was well-entitled to challenge the plaintiff on his version of events. It might have been possible to maintain that it was a version made at some subsequent date for the purposes of these proceedings.
However, perhaps the two most significant contemporaneous documents emerged during the course of the hearing and only after the plaintiff had been cross-examined. They both tend to support the plaintiff's version of events.
It follows that, contrary to the case pursued by the defendants, the plaintiff informed his GP (who spoke Arabic) shortly after the accident that he fell in the circumstances he maintains in these proceedings. Further, the worker's injury claim form was completed within a month of the accident but, because of the time at which it was produced in this hearing, no questions were asked of the plaintiff about the claim form. It was signed by the plaintiff and, again, it is consistent with the case he pursues.
The first defendant points to the evidence of its expert, Professor Carmichael (who is an Emeritus Professor of Civil Engineering at the University of New South Wales) as establishing that the accident could not have occurred as alleged. This is because Professor Carmichael offers an opinion as to whether, based on his analysis of the police photograph, the black plastic had been moved after being laid. Professor Carmichael comments that the photograph tends to suggest that the plastic had not moved at any time (meaning that the plaintiff had not fallen through the plastic). This opinion is based on his analysis of the positioning of the Rockcote.
Whilst Professor Carmichael was not cross-examined, I would approach that type of expert evidence (which is really a lay opinion of what is shown in the photograph) with caution. [1] I am uncertain of how Professor Carmichael's expertise allows him to comment on a photo. Further, if there was an attempt by someone to change the scene after the accident (as the plaintiff asserts), I would be cautious in placing too much weight on a photo of the scene taken after that attempt.
My examination of that same photo suggests that there is no Rockcote splatter on the grate. The defendants dispute this. I would be cautious in placing weight on my own examination of a photo when the defendants do not agree that the photo shows what I think it might depict.
Thus, I have considerable doubt about Mr Mourad's evidence and the plaintiff's version of events is consistent with two contemporaneous documents, which had not been available to the parties until the end of the case.
Further, in my view, the inconsistency of the accounts noted in the other contemporaneous records tends to diminish the likely accuracy of those accounts. I cannot be certain that it was the plaintiff who provided those versions of events to the relevant officers (whether it be the police officers, paramedics, hospital staff or the SafeWork inspector). The plaintiff says that his English language skills were not sufficient to communicate his version of events to the persons who attended the scene of the incident.
As the first defendant correctly submits, the plaintiff bears the onus of proving how the accident occurred. It submits that I would not be satisfied to the standard in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 ("Briginshaw") that Mr Zod placed the metal grate back onto the drain after the plaintiff had fallen into it. It also says that the plaintiff should have called Mr Zod to prove this fact. As Mr Zod was an employee of the second defendant, I can only say that it was also open to the second defendant to call Mr Zod and I am left with no clarity about his movements at the time of the incident.
The plaintiff does not have to prove that he is not lying (to the Briginshaw standard). He has to prove his case on the balance of probabilities.
I accept the plaintiff's evidence. He walked across the garage floor, which was covered with black plastic and fell into a drain which had been covered by the plastic. There was no metal grate covering the drain at the time. One of the workers on site covered the drain with the metal grate before the police arrived and inspected the site.
He did not fall outside the garage either on the scaffolding or the dirt. He did not fall from the garage onto the dirt. He did not slip on the plastic.
The second defendant placed the plastic on the tiles on the morning of the accident. This was observed by Mr Mourad when he attended. Mr Mourad must not be telling the truth about observing the grate on top of the plastic over the drain, even assuming the accuracy of his evidence as to when he was there.
The first defendant's case on liability is not based on any evidence from the second defendant's employees (as they were not called) or anything observed by Mr Mourad (as he acknowledged that he was not there at the time of the accident), but on what Mr Mourad said he heard and Mr Mourad's own insistence that this is not a genuine case and he was, in effect, told that by the plaintiff when the plaintiff left the hospital. This seems like a flimsy basis to accuse the plaintiff of fabricating a story to claim compensation.
In the circumstances, I accept that the accident occurred as alleged.

The first defendant

In assessing the liability of the first defendant, Part 1A of the Civil Liability Act 2002 (NSW) ("CLA") applies. It is necessary to apply s 5B of the CLA. That is, I must identify the risk of harm, consider whether that risk was reasonably foreseeable and not insignificant (within the meaning of s 5B) and then consider whether there were reasonable precautions which the first defendant should have taken.
Of course, all duties of care may be discharged by the exercise of reasonable care. [2] What is reasonable depends on the facts and circumstances of the case.
In this matter, I accept (as agreed by Mr Mourad) that the first defendant: 1. was in control of the site; 2. was generally responsible for safety on the site; and 3. was required to undertake safety checks to ensure that the condition of the site was safe for all workers, including employees of any sub-contractors.
As I have accepted the plaintiff's version of events, I am unable to accept that Mr Mourad is telling the truth about his observations as to the presence of the grate over the drain when he left the site (or his suggestion that everyone else had also left the site). Indeed, having regard to the lack of the usual safety documents which Mr Mourad should have kept and my general reservations about his evidence, I am unable to accept his evidence generally and particularly about his observations and practices and procedures.
Whilst the first defendant is not vicariously liable for the conduct of the second defendant, nor is the duty of care owed by the first defendant discharged by simply relying on the second defendant to ensure the safety of the work site: Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 at [20], [28] (French CJ, Gummow, Hayne, Heydon, Bell JJ); Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1.
The first defendant was both the occupier of the site and the builder which organised the work. As accepted by Mr Mourad, the first defendant was responsible for the safety on site and was required to inspect the site to ensure that it was safe for all workers coming onto the site. This necessarily included the garage. To the extent that Mr Mourad knew or ought to have known that there was a risk of injury arising out of something on the site, then he owed a duty to take reasonable steps to reduce the risk. The first defendant could not discharge that duty by merely relying on its independent contractor to do something to ensure the safety of its employees.
The key question is, thus, whether Mr Mourad knew or ought to have known of the risk of injury to the plaintiff at such a time when he could have reasonably done something to eliminate or reduce that risk. The simple answer is that, having regard to Mr Mourad's own evidence, he must be taken to have known that the drain should have been covered by the grate. He was in a position to see whether the drain was covered by the grate. I do not accept his evidence that when he was onsite that morning before the accident, the grate was on the drain.
Applying the principles set out in s 5B of the CLA, it follows that: 1. the risk of harm was the risk of the plaintiff stepping into the hole created by the drain, in circumstances in which the hole was obscured by the plastic; 2. that risk was both reasonably foreseeable on the part of the first defendant and not insignificant; and 3. there were reasonable precautions which the first defendant could have taken, including ensuring that the grate was on the drain or placing some form of barricade around the drain or making sure that the plaintiff knew that the plastic was covering the drain.
The first defendant says that it is not vicariously liable for the conduct of the second defendant and that the second defendant was in a position to take steps to ensure that the grate was placed back on the plastic. I understand the submission to be that the first defendant was entitled to rely on the second defendant to make sure that the grate was on. The first defendant also says that the plaintiff fails on causation because there has been a novus actus interveniens between any failure by the first defendant and the accident, being the conduct of the second defendant in removing the grate.
The fact that the second defendant was also obliged to take measures to ensure the safety of the plaintiff does not lesson the standard of care imposed on the first defendant and does not absolve the first defendant from a failure to take the simple precautions which would have prevented the accident. The negligence of the second defendant did not break the causal nexus between the first defendant's failure and the accident.
I do not know when (if at all) the grate was last on the drain prior to the accident but, at the very least, Mr Mourad knew that it should have been. The first defendant was negligent in not ensuring that the drain hole was sufficiently guarded or covered so that workers on the site, such as the plaintiff, could not fall into the hole, whether through inadvertence or otherwise.

Liability of the second and third defendants

As I have said, the third defendant represents the second defendant in all respects, in the sense that any judgment entered against the second defendant may also be entered against the third defendant.
The second defendant was the plaintiff's employer at the time of the accident. The plaintiff was employed by the second defendant to assist in the rendering work. There were at least three other workers employed by the second defendant working on the site who were undertaking rendering when the accident occurred. One of the workers was a supervisor or in charge. There was an issue as to whether any other of the second defendant's employees were on site at the time but, having regard to my factual findings, it must follow that they were.
The plaintiff said they were and said that one of them replaced the grate immediately after the accident. Whatever the state of the drain in the garage floor prior to the accident, there is no dispute that the second defendant placed the plastic over the garage floor on the morning of the accident. Mr Mourad said that the plastic was on the garage floor when he arrived that morning. He was not challenged on that by the second or third defendants. When the grate was last covering the drain is not known but having regard to my findings, at the very least, the second defendant placed the plastic on the floor covering the hole and did not ensure that either: 1. the grate was placed back over the hole; 2. something was placed under the plastic (such as the grate) to ensure that no one could fall through the hole; or 3. some sort of barrier or warning sign was put in position.
A very simple step which could and should have been taken by the second defendant when placing the plastic over the garage floor and the stormwater drain, was to ensure that the grate was in position, either under or over the plastic.
The second defendant must have covered the drain cover with plastic, thereby obscuring the hole. The plaintiff was instructed by the second defendant to work in the area where the second defendant must have known that the black plastic obscured the hole. In these circumstances, the negligence of the second defendant is obvious. It is plain that the second defendant: 1. failed to ensure that the drain hole was covered with the grate; 2. placed the plastic over the open drain hole; 3. failed to place something over the drain hole, either underneath or on top of the plastic, so as to ensure that no one could fall through the hole; 4. instructed the plaintiff to work in the area without warning or reminding him of the existence of the hole; and 5. failed to place any sort of warning material or barricade around the hole.
The ordinary principles of negligence apply in assessing the liability of the second and third defendants. The accident was plainly reasonably foreseeable and there were simple steps which the second defendant could have taken to prevent the accident.

Contributory negligence

The third defendant says that the plaintiff is guilty of contributory negligence because he had been working on the construction site in the days prior to the accident and he must have been aware of the drain's existence. It also submits that he must have known that there was no metal grate covering the drain. Whilst that assumption is partly valid, the black plastic covered at least part of the garage floor and concealed the hole. As such, it was hidden at the time of the incident. Obviously, the plaintiff would not have intentionally walked into the hole if he had remembered that it was under the plastic.
Forgetting about the presence of a hole is not negligent. There is a difference between mere inadvertence and failing to take care for one's own safety. Accidents occur on work sites for both of those reasons. As McColl JA said in Rabay v Bristow [2005] NSWCA 199 ("Rabay") at [56]: "It is trite that in considering the issue of contributory negligence, the common law distinguishes between an error of judgment and a blameworthy want of due care: Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37 per Windeyer J; Vial v Housing Commission of New South Wales [1976] 1 NSWLR 388 at 392 per Glass JA (with whom Moffitt P agreed); see also Mahoney JA at 397."
This is a case in which the plaintiff's employer concealed a danger and the plaintiff, who was working in the area and could not see the danger, overlooked its existence. That could not be described as a failure to take care for one's own safety.

Apportionment

There is a dispute between each of the defendants and the plaintiff about apportionment between the defendants.
The first defendant says that, if it is liable, the second defendant should be found primarily responsible. The plaintiff and the third defendant adopt the same approach: that the first defendant should be primarily liable.
The second and third defendants submit that the first defendant is principally liable to the plaintiff because it had control of the site and no effort was made by the first defendant to install safety measures, such as barriers or warning signs, around the stormwater drain.
The first defendant did not conduct toolbox talks or safety briefings. The second and third defendants submit that, in those circumstances, only the first defendant should contribute to the damages to the extent of a complete indemnity and that any cross claim against them should be dismissed.
I do not agree with that submission, although I accept that there is no evidence of the first defendant having proper systems in place to ensure the safety of workers on site.
The plaintiff and the third defendant have a common interest because the Workers Compensation Act 1987 (NSW) ("WCA") limits damages payable by employers and reduces the damages payable by a non-employer tortfeasor, having regard to the non-recoverable proportion of a judgment payable by the non-employer tortfeasor.
In my view, the first and second defendants are equally culpable for the plaintiff's accident. On my findings, and despite the first defendant's denials, Mr Mourad must have known that the second defendant covered the drain hole with plastic and that there was no drain cover on top of it. The first defendant was responsible for safety on the site and could have taken obvious steps to prevent the accident, such as locating the metal grate and placing it over the top of the drain.
The second defendant could have taken the same simple step to prevent the accident. That is, if it was going to cover the drain hole with plastic (as it did) it needed to locate the drain cover and place it over the top to ensure that, in the event that someone was walking in the area, that person did not fall through the hole. As such, I would apportion responsibility equally.

Damages

Prior to arriving in Australia, the plaintiff worked in various jobs, including as an attendant at a petrol station in Lebanon. After arriving in Australia in 2014, he worked as a tyre fitter before commencing work for cement rendering companies in 2016. He worked intermittently with the second defendant over the period 2016-2019, and he recommenced working for it in January 2020. At that point in time, he was working five to six days per week.
The plaintiff says that he has not worked since the accident. The defendants did not put to the plaintiff that he had, although they challenged his incapacity for work.
Before the accident, the plaintiff enjoyed outdoor activities such as fishing, hunting and four-wheel driving. He says that he is no longer able to do those things.
He says that, as a result of the accident, he suffered from injuries to his right shoulder, neck, back and right hip. He says that he continues to suffer from pain in all of those areas. His complaints of pain are extreme. On his case, there has been little improvement in his symptoms over time. He still has gross restriction of movement and significant pain.
He has had extensive treatment and investigation, including: 1. operative treatment on his right shoulder at the hands of Dr Mohammad Baba, an orthopaedic surgeon, on 10 July 2020. He remained under the care of Dr Baba between June and November 2020; 2. a CT scan of his right shoulder in August 2020 and an MRI of his lumbar spine on 12 October 2020; 3. an MRI of his right shoulder on 14 October 2020; 4. regular psychological counselling from Dr Mahmoud Abu-Arab since September 2020; 5. an MRI of his right hip on 2 November 2020; 6. consultations with Dr Jonathon Herald, an orthopaedic specialist, in respect of his shoulder and neck problems; 7. an X-ray and MRI of his cervical spine on 10 November 2020; 8. treatment from a pain specialist; 9. treatment from another orthopaedic surgeon, Dr Daniel Rahme, in respect of his right hip; 10. regular treatment from a sports and exercise physician; 11. regular hydrotherapy and physiotherapy; 12. nerve conduction studies; 13. a CT at L5/S1 passage of block injection, which he received on 14 January 2021; and 14. he regularly takes extensive medication.
The plaintiff says he is depressed. He has a limited education and limited English language skills, which are said to curtail his working capacity. He says that but for the accident, he would have continued to work up until the retirement age of 67.
The plaintiff presents as a person who suffers from a range of injuries and disabilities for which he has sought extensive treatment and has continued to receive workers compensation. He receives support from his GP and several medico-legal specialists who examined him for the purposes of this case. He presents as a person involved in unskilled or semi-skilled work who will now suffer from a long-term disability and loss of earning capacity.
The first defendant seeks to paint a different picture, seemingly based on: 1. the existence of and the failure of the plaintiff to properly disclose his pre-existing problems with his right shoulder and back; 2. a suggestion that the plaintiff did not complain of any problems other than his shoulder injury until long after the accident; 3. a challenge to his general veracity through the evidence of Mr Mourad; 4. material obtained through surveillance and commented upon by some of the medical experts; and 5. some medical evidence which casts a doubt on his reliability.
Indeed, the first defendant seeks to portray the plaintiff as a person who has recovered from any injuries he sustained in the accident. It says that, to the extent that the plaintiff may suffer from any symptomatology, it is not referable to the accident but to his pre-existing problems. This is best exemplified by the first defendant's schedule of damages which were included in its final submissions.
The first defendant says that, if the plaintiff is successful, damages should be assessed in the amount of $78,414. This assumes limited loss of income for the past and no ongoing loss. Despite the third defendant having paid an amount in excess of $70,000 for past medical expenses and the plaintiff having undergone extensive treatment, the first defendant allows very little for such treatment. The first defendant must be taken to be saying that the plaintiff is lying about the circumstances of his accident and the injuries he sustained. He must have subjected himself to that treatment for ulterior purposes: that is, this claim.
The plaintiff's claim is complicated by the fact that, in the years prior to his accident, he complained of pain similar to the problems which he says developed after the accident, which he did not disclose to some of the doctors who examined his injuries. The first defendant disputes the causal relationship between the accident and the neck, hip and back injuries sustained by the plaintiff.
In support of his claim, the plaintiff relies on the following expert reports: 1. four reports of Dr Andrew Porteous, occupational physician, dated 30 March 2021, 8 April 2021, 24 October 2022 and 13 April 2023; 2. a report of Dr Frank (Kai Tai) Chow, consultant psychiatrist, dated 23 June 2021; 3. a report of Dr Horace Ting, occupational therapist and vocational assessor, dated 5 July 2021; and 4. two reports of Dr James Bodel, orthopaedic surgeon, dated 18 February 2021 and 30 March 2023.
The first defendant relies on the following expert reports: 1. two reports of Associate Professor Michael Shatwell, orthopaedic surgeon, dated 26 May 2022 and 30 March 2023; 2. two reports of Dr Doron Samuell, clinical and forensic psychiatrist, dated 12 July 2022 and 4 April 2023; 3. two reports of Dr Seamus Dalton, consultant physician in rehabilitation medicine, dated 29 August 2022 and 22 March 2023; 4. a report of Ms Sue Smith, occupational therapist, dated 29 September 2022; 5. a report of Professor James Bright, registered psychologist, dated 30 June 2022; and 6. three reports of Dr Evan Dryson, occupational physician, dated 13 May 2021, 10 July 2021 and 27 September 2022.
The medical evidence gives rise to a number of central issues, including: 1. What injuries did the plaintiff sustain in the accident? 2. Are the plaintiff's ongoing complaints, such as they are, related to the accident or pre-existing conditions? 3. Are the plaintiff's complaints of pain genuine or fabricated for the purposes of this case? 4. Were the plaintiff's injuries merely a manifestation of pre-existing vulnerabilities, such that the plaintiff would always have become unfit for heavy work at some stage? 5. To what extent are the plaintiff's complaints affected by any psychological issues? 6. Does the plaintiff continue to suffer from any psychological condition? 7. Is the plaintiff unfit for work?
The plaintiff tendered the notes and records of his GP, Dr Tommalieh, and adduced oral evidence from him. Dr Tommalieh's evidence generally supported the plaintiff's complaints of injury and disability. He has treated the plaintiff on a regular basis. Perhaps surprisingly, the doctor produced an expanded version of his notes and records and a certificate of capacity which had not been made available to the parties previously. This certificate only emerged late and sheds some light on the complaints made by the plaintiff within three days of the accident. This is because the plaintiff was sent for an ultrasound of his right hip on 22 June 2020 and an MRI of his cervical spine in July 2020. It must be that, despite the content of the first certificate, the plaintiff was complaining of symptoms in those areas in the immediate period after the accident, albeit he did not mention any injury to his back, neck or hip on initial presentation to the hospital.
These contemporaneous complaints about the plaintiff's back, neck and hip are also consistent with the notation made on his worker's injury claim form on 21 July 2020 to the effect that: 1. he dislocated his shoulder at work on 19 June 2020, which required surgery; 2. at the same time, he also suffered an injury to his neck, back and right leg; and 3. the injury to his back was an exacerbation of a previous injury.
The late production of the GP's certificate of capacity, his further consultation notes and the worker's injury claim form, in combination with Dr Tommalieh's oral evidence, rather diminished the force of the first defendant's attack on the plaintiff to the effect that he had not complained of injuries to his hip, neck and back until some months after the accident. The worker's injury claim form only emerged after the close of evidence at the hearing and Dr Tommalieh's evidence was generally not considered by the medico-legal experts.
As such, any expert medical commentary based on the assumption that the plaintiff did not complain of any pain or injury to his neck hip or back until months after the accident is similarly diminished.
In addition to relying on the material from his GP, the plaintiff emphasised the opinions of Dr Porteous, an occupational physician who examined him for the purpose of this case. The plaintiff was assessed by Dr Porteous on 11 March 2021 and 19 October 2022.
During the first consultation, the plaintiff reported having chronic right neck, right shoulder and right arm pain which he rated 7-9 out of 10 on a pain scale. He told Dr Porteous that his right arm occasionally "locks up and he has got numbness down through and into the hand."
Having examined the plaintiff, Dr Porteous opined as follows: "In my opinion, he is restricted from right shoulder repetitive activity or activity above shoulder height. He is restricted from moderate or heavy lifting, pushing, pulling or carrying. He is restricted from frequent or constant bending, crouching and kneeling. He is restricted from constant sustained walking and standing or walking up and down steps or slopes or crouching and kneeling. He has reduced capacity, ongoing pain and restriction and remains a considerable distance from his pre-accident capacity."
During his second consultation, the plaintiff said that he continued to suffer from right neck, right shoulder and right arm pain rated at 5-10+ out of 10 on a pain scale. However, he said on most days at some point he could be free of pain. As to his chronic lumbar back and right hip pain, this was reportedly 8-10+ out of 10 on a pain scale. Dr Porteous noted that the plaintiff presented in a consistent manner as with previous occasions and that there was no evidence of exaggeration or feigning.
At the hearing, it was put to Dr Porteous that the plaintiff had not informed him of his prior shoulder dislocations. Dr Porteous confirmed he was not aware of that aspect of the plaintiff's medical history when he examined the plaintiff. It was also put to the doctor that there was no causal relationship between the injuries to the plaintiff's right shoulder and the accident, and the injury to the plaintiff's back and the accident. Dr Porteous disagreed with both propositions.
Dr Porteous accepted that there was a high risk of further dislocation if a shoulder has dislocated on two prior occasions, although he qualified that somewhat.
Dr Porteous also reviewed the surveillance material. He did not consider that the plaintiff's behaviour in the footage was inconsistent with the plaintiff's presentation to him. Indeed, he observed that the plaintiff's shoulder movement appeared to be restricted, which was consistent with his presentation at the time of consultation.
The parties arranged independent orthopaedic examinations by Dr Bodel, who examined the plaintiff at the request of his solicitors, and Dr Shatwell, who examined the plaintiff on behalf of the first defendant.
The plaintiff was initially assessed by Dr Bodel on 18 February 2021. On that occasion, Dr Bodel noted that the plaintiff had a right-sided limp, a restricted range of shoulder movement on the right side and that there was visible evidence of wasting. He diagnosed the plaintiff with: "…a soft tissue whiplash disorder involving the neck and the back, a rotator cuff injury to region of the right shoulder and a fracture of the glenoid in the region of the shoulder and a contusion to the region of the right hip."
He thought that all of these injuries were caused by the plaintiff's accident on 19 June 2020. In a supplementary report dated 30 March 2023, Dr Bodel confirmed that opinion. He stated: "…I am of the view that the injury was a frank dislocation caused by the fall. He may have been predisposed to an easier dislocation than might otherwise have been the case, had that shoulder not been injured previously, but the mechanism of the fall is the cause of the "injury" and that is entirely work related. Any pre-existing pathology is a minor component to the injury. The fact that he has had an unstable shoulder previously is a contributing factor but not the main contributing factor in this circumstance for the need for surgery."
A/Professor Shatwell assessed the plaintiff on 4 May 2022. He noted that the plaintiff complained of severe pain in the back and had lost 20 degrees of range of motion in his right shoulder. The most likely cause of this deficit was tethering of the anterior capsule of the shoulder joint.
In his report, A/Professor Shatwell said that the plaintiff would not be likely to return to work "in the near future". He considered that the plaintiff may have trouble returning to work as a cement renderer, even with a full range of movement in his shoulder.
However, he said in oral evidence that he considered the plaintiff fit to return to work as a renderer, subject to some restrictions in relation to overhead work. This opinion related only to the problems with the plaintiff's shoulder, as A/Professor Shatwell discounted the causal significance of the other injuries.
At the hearing, Dr Bodel and A/Professor Shatwell gave oral evidence concurrently. There was some discussion about whether there had been a pre-existing fracture in the plaintiff's right shoulder, in addition to the soft tissue injury caused by the dislocation. Dr Bodel thought that the fracture and the soft tissue injury could have both occurred at the time of the accident, given the amount of force required to cause a dislocation. However, he also noted that a pre-existing fracture could have been asymptomatic and would have meant that the plaintiff's shoulder was more unstable and vulnerable to further injury.
A/Professor Shatwell suggested that any earlier fracture was not relevant to the dislocation which occurred during the accident.
When asked whether they thought the plaintiff could return to work as a cement renderer, Dr Bodel replied (referring to the plaintiff's right shoulder): "Professor Shatwell…was of the view that it's now better than it was before the injury and I would agree with that. Because it's been stabilised. But I still would be reluctant to allow this man to go back to cement rendering because of the innate nature of what cement rendering is. It would put his arm in that vulnerable position, fairly frequently."
Later, A/Professor Shatwell said: "I wrote in the conclave joint report that I agree with most of Dr Bodel's opinions, except I felt, as he stated correctly, that having a stable shoulder after an operative repair would be an advantage. I think the shoulder was unstable prior to the prepare because of multiple dislocations, and I wrote in the conclave report that I would be happy for Mr Badra to do his pre-injury work but with precautions regarding his safety when working at heights."
When asked about the plaintiff's injuries to his back, neck and hip, A/Professor Shatwell said that he thought the back injury pre-dated the workplace incident and was not necessarily caused by the accident. He similarly discounted the neck problem which he thought had emerged some months later. Dr Bodel accepted the relationship between the back and hip problems but expressed uncertainty about the neck problems.
Dr Dalton, a rehabilitation specialist, reviewed the plaintiff on 5 July 2022. He opined that the plaintiff presented with a chronic pain disorder. He reported that there were "clear signs of psychological and functional overlay with a number of inconsistencies demonstrated at this assessment" in relation to the plaintiff's stated symptoms and his physical presentation.
Dr Dalton considered the main issue to be the plaintiff's lack of mobility in his right shoulder, which means that he is limited to semi-sedentary or light manual work using his unaffected dominant left arm.
In his supplementary report, Dr Dalton considered the likelihood of the plaintiff's shoulder dislocation, given the evidence of previous dislocations of the same shoulder. He said: "In my opinion, the fact that the plaintiff has suffered two previous dislocations of his right shoulder as a young adult makes it highly probable that he would have dislocated his right shoulder at some stage in his life, irrespective of the incident on 19 June 2002… …It is difficult to predict when a further dislocation would have likely occurred, particular given that it appears that Mr Badra's shoulder had not dislocated between 2015 and the incident in June 2020… The risk of re-dislocation tends to be greatest during the younger years and that reduces over time if there have been no further episodes of instability, particularly with increased age and modification of activities. It is very difficult to be more specific. On the one hand this man suffered two dislocations less than 12 months apart, but then he does not appear to have suffered any further dislocations for the next 4-5 years."
Further, in oral evidence, Dr Dalton considered the labral tear in the plaintiff's right hip, which was identified after an MRI. Dr Dalton said that labral tears can be caused by trauma, but they are also extremely common and often asymptomatic. Further, he said that they were often discovered incidentally to other injuries. He thought that the plaintiff's labral tear probably pre-dated the workplace accident.
Dr Dalton indicated that he disagreed with Dr Porteous' opinion about the plaintiff's working capacity. He thought that the plaintiff's shoulder was now stable and that it would require a "significant event" for the shoulder to dislocate again.
He also disagreed with Dr Bodel's assessment of the plaintiff's permanent impairment because, unlike Dr Bodel, he did not consider that the "whiplash injury" to the plaintiff's neck and back were caused by the accident on 19 June 2020. He said there was an unclear basis for that conclusion. Dr Dalton's opinion on this issue was also based on an incorrect medical history and, thus, must be discounted.
In his first report prepared on behalf of the third defendant, Dr Dryson noted the Bankart fracture to the plaintiff's right shoulder, which required open reduction and internal fixation. He said that although the plaintiff's back pain was pre-existing, this was aggravated during the accident and that aggravation was continuing. In relation to the labral tear in the plaintiff's right hip, Dr Dryson said that there was a small para labral cyst associated with the tear which would have developed in the five months between the accident and the date of the scan. He attributed the hip injuries to the accident, which would be consistent with the immediate complaint of hip problems to the plaintiff's GP.
Dr Dryson did not agree that the plaintiff had exhibited signs of exaggeration or unreliable pain behaviour. Instead, he said that the plaintiff was showing signs of chronic pain syndrome.
He opined that the plaintiff is "unable to undertake work above sedentary to light physical demand, work which requires frequent or constant standing or bending, frequent or constant sitting, or stretching or reaching at or above shoulder height on the right." In Dr Dryson's opinion, the plaintiff cannot return to work as a cement renderer.
Dr Chow, a psychiatrist, assessed the plaintiff on 12 May 2021 via video consultation. He noted that the plaintiff was suffering psychologically and that he was experiencing sufficient symptomatology for the diagnosis of major depressive disorder. He commented: "[The plaintiff] now does not want to go out much. All he does now is go for a coffee in a café nearby and then go home. He cannot stand, sit, or walk for long. He cannot walk more than five minutes without getting radiating pain and numbness into both legs. He is always in pain. He is unable to sleep well. He thinks about his life and future and how he can continue like this."
Dr Chow considered that the plaintiff's psychiatric injury is likely to impact his prospects of employment and earning capacity, although he said that this would depend on the plaintiff's responsiveness to further treatment.
Dr Samuell, a psychiatrist who examined the plaintiff on behalf of the first defendant, diagnosed the plaintiff with a chronic adjustment disorder with depressed mood. He stated: "I can accept that [the plaintiff's] lost expectation in life and chronic pain is sufficient to cause a mental health condition that, in my opinion, should be diagnosed as a chronic Adjustment Disorder with Depressed Mood. The stressor in this instance is the alteration in his physical functioning and sequelae. He satisfies the threshold criteria for an Adjustment Disorder as his mood experience is disable across several aspects of his life. The Adjustment Disorder is chronic as the stressor is chronic."
Dr Samuel said that the plaintiff had chronic sleep difficulty, mood difficulty and chronic pain, which would preclude him from working. He did not think that there was any psychological impact on the plaintiff's capacity to engage in domestic duties. In his opinion, psychological treatment was and is unlikely to be effective.
Dr Samuel prepared a supplementary report dated 4 April 2023, having regard to the changed opinion of Dr Shatwell and the surveillance material. He emphasised that his opinion that the plaintiff suffered from a psychological condition was based on the assumption that he suffered from a physical disability. In other words, if the plaintiff has no physical disability, then he has no responsive psychological disability.
Professor Bright conducted a vocational assessment of the plaintiff on 15 June 2022. The assessment involved an exploration of the plaintiff's personal, educational and employment background and a psychometric evaluation of his intellectual skills and personal preferences.
Significantly, having conducted psychometric testing on the plaintiff, Professor Bright concluded that the plaintiff's performance was "so bad it was lower than would be achieved by simply guessing." This suggested that the plaintiff had deliberately chosen the wrong answers and, as such, the results of the testing were unreliable.
Professor Bright opined that the plaintiff has "significantly more transferrable skills and vocational capacity than he appears to be willing to concede." He said that the plaintiff would benefit from some English language training. He listed a number of potential occupations for the plaintiff, which included a truck driver, courier of light parcels, security alarm monitor, weighbridge operator, service station console operator or a gatekeeper.
Dr Ting and Ms Smith are expert occupational therapists. They produced a joint report. They did not give oral evidence at the hearing. They also assessed the plaintiff individually and produced their own reports. Their reports primarily address the plaintiff's need for domestic assistance.
When assessing the plaintiff's need with respect to past self-care and transportation, Dr Ting and Ms Smith disagreed on the appropriate duration. Dr Ting believed that the plaintiff required six months of attendant care at four hours per week. Ms Smith recommended nine weeks of personal care assistance at 3.5 hours per week, which accounted for three weeks prior to the plaintiff's surgery and six weeks post-surgery.
They also disagreed on the plaintiff's need for past domestic care. It is not necessary to comment on their opinions as the plaintiff abandoned any claim for past care.
Ms Smith did not think that any allowance for future care was necessary and opined that a one-off payment of $149 was necessary for equipment. She thought that the plaintiff should be reimbursed for the cost of travel to and from medical treatment and monthly car washes.
Dr Ting thought that it was too early to determine the plaintiff's future care needs, but said that at the time of his report, the plaintiff required services amounting to 4 hours per week. He noted the cost of shopping assistance, car washing assistance and equipment in the amount of $1,600.
Ms Smith emphasised the fact that the plaintiff had full use of his dominant (left) hand and that he could perform many domestic tasks one handed. She relied upon the medical evidence which indicated that the plaintiff's back and hip injuries were not related to the accident on 19 June 2020. Conversely, Dr Ting noted that the plaintiff had suffered multiple physical injuries and a psychological injury. He did not engage in any analysis as to causation.

The medical records

The plaintiff relied on hospital notes and medical records from some of his treating doctors both before and after the accident. This material was the subject of some dispute at the hearing. The plaintiff sought to rely on it as contemporaneous evidence of his injuries, whereas the first defendant relied on it to highlight inconsistencies in the plaintiff's evidence.
Clearly, the plaintiff suffered from occasional or spasmodic back pain during the period 2014 to 2019. He last complained of back pain to his GP 10 months before the accident and, before that, two years earlier. I also accept that he suffered two previous shoulder dislocations. However, it is notable that, despite these earlier conditions, he was working full-time undertaking heavy work as a labourer working with cement.
I accept that (as it was put to him during cross-examination) the plaintiff did not generally or accurately disclose his prior medical problems, including some psychological symptoms, to the doctors who examined him for this case.
The medical records are also relevant for the purposes of assessing the plaintiff's post-accident course. There are extensive physio and rehabilitation records. As I have indicated, the treatment and investigation into the plaintiff's complaints has been extensive. There had been little questioning of the veracity of his complaints until the first defendant sought to raise doubts. Indeed, there is evidence of regular muscle spasms as well as wasting (which suggests a lack of use) which might seem to be inconsistent with fabrication.
On my analysis and allowing for the diagnosis of a chronic pain syndrome, until such time as the surveillance material emerged, the preponderance of the medical evidence was generally supportive of the plaintiff as a genuine complainant, perhaps with some exaggerated responses on examination.

The surveillance material

The first defendant relies upon footage and images which were produced following covert surveillance of the plaintiff. This material was reviewed and commented upon by the medical experts in this matter. It was also shown to the plaintiff during cross-examination. Generally, it was used by the first defendant to discredit the plaintiff and as a basis for suggesting that he was not suffering from the level of symptoms which he maintained.
The first defendant undertook surveillance of the plaintiff over four periods, as follows: 1. in May 2022, more than 22 hours of surveillance was conducted over seven days. Two minutes of footage was distilled into video evidence; 2. in July 2022, more than 21 hours of surveillance was conducted over four days. Four minutes of footage was distilled into video evidence; 3. in August 2022, 20 hours of surveillance was conducted over four days. 19 minutes of footage was distilled into video evidence; and 4. in March 2023, 40 hours of surveillance was conducted over six days. 30 minutes of footage was distilled into video evidence.
Having watched the plaintiff for over one hundred hours, the first defendant produced an edited summary of 55 minutes for use in Court. This was appropriate, in the sense that there is no other way that this type of evidence can be produced in Court.
The footage obtained primarily depicts the plaintiff either driving his car, walking to and from his car or doing something to his car in various locations. There is no footage of the plaintiff engaging in regular work or otherwise carrying out activities that could signify an ability to carry out his usual work as a cement renderer. On the other hand, to the layperson's eye, it is not apparent that he is in severe pain.
The first defendant sought to emphasise certain aspects of the footage by extracting stills of the video footage which were tendered at the hearing. The images selected by the first defendant depict the plaintiff: 1. using his right arm to open a car door; 2. sitting in the driver's seat of his car smoking a cigarette, which he held in his right hand, at one point lifting his right arm out of the window whilst holding the cigarette; 3. holding a cup of coffee up with his right arm; 4. walking whilst holding a bag of takeaway food in his right hand; 5. bending over to pick something up off the ground; 6. conducting what appears to be a basic service of a car parked on the side of the road, which included leaning under the bonnet of the car; and 7. lifting his right arm above his head, amongst other day-to-day activities.
When these images were shown to the plaintiff during oral evidence, he said that some of the activities depicted, such as lifting his arm out the car window, caused him pain. He said that he takes Endone every day after he leaves the house, which allows for better movement.
Unfortunately, it emerged that some of the images were taken through a mirror, such that when viewed properly, he was actually using his left arm and shoulder and not his right arm and shoulder. Whilst this was clarified when discovered during cross-examination, it created some confusion during this part of the cross-examination of the plaintiff.
Different doctors expressed different views as to the significance of the surveillance material. Dr Porteous considered the surveillance images and stated that the range shown in the right shoulder "isn't much above 120 degrees above his shoulder", which was broadly consistent with his examination of the plaintiff.
Dr Dalton noted that "[o]n the surveillance, you can see that [the plaintiff] tends to hold his right arm in a slight position, in terms of a rotation. So, it is fairly evident which is the shoulder that's the problem…". However, he later said that the surveillance footage was "completely inconsistent" with how the plaintiff had presented during consultation.
As I said in Kelly v Thorn; Monteleone v Thorn (No 8) [2021] NSWSC 118 at [228], surveillance film is sometimes overused and overrated. Injured persons often do their best to go about their daily lives while waiting for their cases to be heard despite suffering pain and despite being unable to perform the work that they may have been performing prior to the accident.
Film of the plaintiff undertaking everyday tasks from time to time might suggest that his claims of an inability to perform such everyday tasks cannot be accepted. However, the ability to undertake such simple tasks does not then lead to a finding that the plaintiff could work for extended periods undertaking heavy work. In assessing the weight to be given to surveillance material, the Court is entitled to take into account the period of surveillance, the period in which a person is shown undertaking activities and, of course, the type of activity which is demonstrated in the film.
In my view, the surveillance videos tend to support the defendant's submission that the plaintiff has exaggerated his level of disability, particularly when it comes to restrictions in undertaking everyday activities. The plaintiff (perhaps, wisely) abandoned his claim for past domestic assistance.
Despite the extensive surveillance undertaken, there is no evidence of the plaintiff working or engaging in activities similar to cement rendering or heavy labouring work. Establishing that the plaintiff can lean into his own car or lift something on an occasional basis does not establish that the plaintiff could work as a cement renderer. Showing film of the plaintiff leaning into his own car engine for a few minutes does not establish that he could work full time as a car mechanic, with all of the lifting and raised arm and shoulder work which such a job would require.

Findings

I accept that the plaintiff sustained injuries as alleged, including to his right shoulder, neck, hip and back, following the incident on 19 June 2020. Although he only complained of injuries to his shoulder on examination at the hospital, it is not uncommon for the focus of a complaint to be on the injury causing the most pain. The suggestion that he did not first complain of pain in those areas until months after the accident is contrary to the records of Dr Tommalieh and the worker's injury claim form.
The plaintiff had suffered two earlier dislocations of his right shoulder, which rendered it vulnerable. I accept the evidence of Dr Bodel that the surgical repair of his right shoulder has caused his right shoulder to be more stable than it was prior to the accident, albeit he still has some restriction of movement in the shoulder, as confirmed by Dr Porteous. In other words, the surgical repair has reduced the risk of further injury to the shoulder. Subject to any ongoing symptoms in his right shoulder, the plaintiff would not be as vulnerable to further injury to his right shoulder as he was prior to the accident.
The defendants must take the plaintiff as they find him [3] and the fact that the plaintiff was vulnerable to further right shoulder injury prior to the accident does not break the causal nexus between the tortious conduct of the defendant and the injury to the right shoulder. The same must be said about the aggravation of the plaintiff's back injury.
I accept that the plaintiff sustained injuries to his neck, back and right hip as a result of the accident. I accept this because the records of his GP support complaints of injuries to those parts of the body within a short period following the accident, contrary to the defendant's case that the complaints were only made months after the accident. Having said that, the neck injury appears to have been "soft tissue" in nature and the back injury is an aggravation of a pre-existing condition. I accept that the defendant suffered from pre-existing back problems from time to time, which included disc degeneration.
The plaintiff's pre-existing back problem did not prevent him from undertaking heavy physical work in the years prior to the accident. Rather, he visited his doctor from time to time and complained of back problems without seemingly taking any lengthy period off work as a result of those back problems. Considering the contemporaneity and consistency of the complaints, I accept that the plaintiff aggravated his pre-existing back condition as a result of the accident and that his ongoing symptoms, such as they are, relate to that aggravation rather than the pre-existing condition.
The surveillance material tends to suggest that the plaintiff's complaints of extreme pain are exaggerated. The plaintiff presents as a person who will suffer from a long-term physical disability, but not at the level he maintains. His complaints may be complicated by a pain disorder. It is important to observe that my acceptance of exaggeration does not lead to the complete rejection of the plaintiff's case.
I accept that the plaintiff suffers from some form of psychological disorder which impacts him daily, although that may be a minor component emanating from his physical disabilities.
I do not accept that the force of the surveillance material is such that there should be a complete rejection of the plaintiff. It is difficult to know whether the effect of the Endone he takes is such that he can partake in everyday activities or whether there has been an exaggeration of his pain levels. On either view, the surveillance material does not establish the plaintiff's fitness for heavy work.

Damages against the first defendant

Damages must be assessed in accordance with the CLA. The restrictions that apply to damages recoverable against the employer do not apply.
Assessing damages in a case such as this is difficult because: 1. the plaintiff had suffered from earlier problems to the parts of his body which he injured in the accident; 2. there is some exaggeration in his presentation and his ongoing complaints may be complicated by a chronic pain syndrome; 3. his ongoing back problems stem from the aggravation of an existing injury; and 4. he was vulnerable to suffering an injury because of his pre-existing problems, giving rise to the likelihood that he would have had difficulty performing heavy work on a long-term basis.
It is appropriate to restate the principles which apply to assessing damages in these matters as follows: 1. the plaintiff bears the onus of establishing on the balance of probabilities the nature and extent of any injuries and disability from which he suffers, and the causal connection between the accident and those injuries and disabilities: Todorovic v Waller (1981) 150 CLR 402 at 412; [1981] HCA 72 per Gibbs CJ and Wilson J; 2. in circumstances wherein the plaintiff suffered from pre-existing medical conditions which may impact upon the nature and extent of his ongoing disabilities, the onus remains on the defendant to disentangle the symptoms referable to the accident from those which are not. If the defendant seeks to assert that any symptoms from the plaintiff continues to suffer are caused by a pre-existing condition, the defendant must establish this: Watts at 160; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34; 3. the plaintiff bears the onus of proving that any diminution of earning capacity is productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347; [1961] HCA 48; Husher v Husher (1999) 197 CLR 138 at 139; [1999] HCA 47. The plaintiff bears the onus of proving the losses which he claims. It is necessary for the plaintiff to establish the extent to which any absences from work were caused by the accident, and that any costs and expenses for past and future treatment were caused by the accident; 4. to the extent that the plaintiff suffered from pre-existing vulnerabilities which may have rendered him susceptible to injury notwithstanding the tortfeasor's conduct, the principles set out in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 apply. The Court should assess the chances that, even without the tortfeasor's conduct, the plaintiff may have suffered a further injury or a reduced capacity for work, such that the allowances for future losses should be reduced on account of that chance; and 5. earning capacity is measured with reference to the plaintiff, his personal characteristics and his capacity in the labour market. The plaintiff does not need to identify which jobs he could not do. Once the plaintiff establishes that he is unable to perform his pre-injury employment and suffers a diminution of earning capacity accordingly, the onus is on the defendant to adduce evidence of the type of work which the plaintiff could obtain and perform: Rabay at [73] per McColl JA (Handley and Byrson JJA agreeing); South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [74] per Simpson JA (Macfarlan and Meagher JJA agreeing). Establishing a theoretical medical possibility of the plaintiff performing some of the work will not suffice.

Non-economic loss

I assess damages for non-economic loss at 37 per cent of the most extreme case ($267,000). This takes account of the range of injuries and the impact on the plaintiff. It also reflects my finding that the plaintiff's complaints are not as extreme as he maintains. The plaintiff will be unable to return to the work for which is suited, he is unable to engage in the recreational activities which he once enjoyed and he will likely suffer some pain and restricted movement on a long-term basis.

Past loss of earning capacity

Prior to the accident, the plaintiff demonstrated his earning capacity through undertaking unskilled or semi-skilled heavy work. There is no evidence that he earned an income in any other way.
There is no evidence that the plaintiff has worked since the accident. Plainly, the first defendant's case is that there is nothing stopping him from working, but it was not suggested to the plaintiff that he had been working.
During the period 2016 to 2019, he worked on a regular basis for MMM Cement Rendering 1 Pty Ltd and then Sydney Rendering. He says that he stopped work in 2019 because of his visa conditions but those conditions were lifted in July 2019.
His capacity to earn income in the cement rendering industry is supported by the statement of Ahmed Al Sadik, the owner of the A1 Rendering Group. According to Mr Al Sadik, the A1 Rendering Group is currently offering employment at $300 per day for six days per week. He describes the plaintiff as a hardworking, diligent worker and he says that he would offer him employment for six days per week on a full-time basis at $300 per day were he not injured. Mr Al Sadik also suggests that the plaintiff could have gained more experience and increased his earnings to $450 per day.
The plaintiff says that for the period 17 January 2020 to 19 June 2021, he was working and earning approximately $1,500 per week. The first defendant's approach is to average the plaintiff's earnings over the four years before the accident. It suggests that the plaintiff's earning capacity but for the accident should be assessed at only $476 per week, which seems remarkably low for a 40-year-old man engaged in heavy work.
The first defendant's vocational expert, Professor Bright, suggests that full-time cement renderers earn approximately $1,372 (gross) per week. Professor Bright also suggests that, having regard to his transferable skills, the plaintiff could work as a truck driver, courier driver, security worker, weigh bridge operator or service station console operator earning similar amounts, although the service station console operator would earn less. Professor Bright did not have regard to any physical or psychological incapacity of the plaintiff. The defendants did not adduce any evidence of actual jobs in those industries which the plaintiff could obtain.
It is incumbent on a defendant to adduce evidence of the type of work which the plaintiff could perform and that there would be jobs available to him. It is not sufficient to merely identify that there are other jobs which the plaintiff could secure without paying regard to his education, English language skills or prior experience. Of course, some of the jobs identified would not require much by way of re-training. It is remarkable how often it is suggested that an injured person could become a console operator irrespective of their education or English language skills.
The problem for middle-aged workers who have worked exclusively in semi-skilled heavy work throughout their lives is always obtaining and retaining employment, despite their ongoing disability.
Further, the fact that the plaintiff was a person with pre-existing injuries (which made him more vulnerable to injury on the work site) does not break the chain of causation between the accident and the disability. It merely means that a discount should be applied to my assessment, having regard to the likelihood of the plaintiff suffering an injury at some stage which might have rendered him unfit for heavy work even without this particular accident.
The plaintiff's tax returns disclose that during the period 2016 to 2020, he earned varying amounts between a low of $22,000 in 2019 and a high of $31,000 in 2018. In 2020, he disclosed a gross income of $29,110. He was initially paid workers compensation at the rate of $950 per week.
There is also a letter from his accountant dated 8 June 2021, which says that the amount disclosed in the plaintiff's tax returns for the period ending 30 June 2020 (whilst working as a cement renderer) equates to earnings of $1,500 per week.
None of this evidence was subject to any challenge. It was not put to the plaintiff that: 1. he had been working; or 2. the information provided about his pre-accident earnings was in any way inaccurate.
In my view, the first defendant's calculation of $476 per week ignores: 1. the evidence of the A1 Cement Rendering Group as to the amount that a cement renderer earns; 2. the fact that because of his visa restrictions, the plaintiff was unable to work for some of the period; 3. the evidence from the plaintiff's accountant about the weekly sum he was earning in 2020; and 4. the fact that, by the plaintiff's own admission, he did not work at various points during the period 2016 to 2020.
Of course, acceptance of the first defendant's approach to damages would be predicated on acceptance of the first defendant's proposition that there is really nothing wrong with the plaintiff which is referable to the accident and that he made a full recovery a short period after the accident.
Further, the suggestion that the plaintiff's loss of earning capacity should be assessed as $477 per week is contrary to the agreement on behalf of the second defendant (through icare NSW) that, for the purposes of paying statutory compensation, the plaintiff's pre-accident average weekly earnings were $1,300 (gross) per week.
I propose to use that figure for the purpose of assessing past economic loss. $1,300 does not represent six days of work per week, but it represents the likely earnings if they were averaged out over the year. That equates to $1,000 per week (net) and I allow that sum for a period of two years after the accident.
For the period thereafter (1 July 2022 to date), I allow the weekly sum of $1,100. I further accept that, having regard to the general increase in wages, the plaintiff's wages would have likely increased by a further $150 as at the time of this judgment.
I accept that the plaintiff has not worked since the accident. He has been certified unfit for work and receiving extensive treatment. He has had no re-training and his level of disability has prevented him from performing heavy work.
I allow the following amounts for past loss of earning capacity: 1. 20 June 2020 to 30 June 2022 at $1,000 per week for 105 weeks - $105,000; and 2. 1 July 2022 to 3 November 2023 at $1,100 per week for 70 weeks - $77,000.

Future loss of earning capacity

I accept that the plaintiff's earning capacity, if undiminished, would have been $1,250 (net) per week. He has a notional 27 years left until a normal retirement age.
I accept that his ability to perform heavy work is reduced, in the sense that he is unlikely to return to work as a cement renderer or undertake similar heavy work in the future. However, his pre-existing conditions rendered him vulnerable to injury, such that his future in heavy work must have been uncertain.
The plaintiff accepts that he has some limited earning capacity. The plaintiff submits that the sum of $300 per week is an appropriate figure. The first defendant's position is that the plaintiff's earning capacity is unrestricted.
The real problem for the plaintiff is that he is unfit for the type of heavy work that he used to perform. This is due to the combination of his ongoing symptoms, including his back problems and his restricted movement in his right shoulder.
Whilst his shoulder may now be more stable, he still has some restriction of movement and pain. It is difficult to see how he could return to labouring or cement rendering or any similar work. The consensus of the medical evidence is to that effect. However, he could obtain some form of employment in the future, whether that arises out of re-training or obtaining work such as light driving work, for which he appears to be fit.
Having regard to Professor Bright's assessment of potential earnings, and on the basis that the plaintiff is unlikely to work full-time regular hours, I assess his ongoing earning capacity at $500 per week.
Further, the amount allowed for contingencies must be increased. Whilst the first defendant must take the plaintiff as it finds him, the plaintiff was a person who was at risk of suffering aggravation of his pre-existing problems, even if the accident had not occurred. I will apply a contingency of 30% for the future.
In all of those circumstances, damages for future loss of earning capacity should be assessed in the sum of $750 ($1,250 minus $500), with a reduction of 30% on account of contingencies, assessed to the age of 67. Applying the 5% tables at the rate of $750 per week for 27 years, with a further discount of 30%, this amounts to $411,075.

Commercial assistance

By the time of the plaintiff's closing submissions, the plaintiff's claim for domestic commercial assistance had been modified. The plaintiff claims the sum of 1.5 hours per week at the commercial rate of $52-$70 per hour. Having regard to the surveillance material, the plaintiff's original claim that he could not perform a number of domestic tasks could not be accepted.
However, he will suffer from pain, discomfort and restriction of movement in his shoulder, and pain and discomfort in his back, on an ongoing basis. I accept the plaintiff's submission that a claim for 1.5 hours per week is a modest claim. I allow the amount claimed in the sum of $76,275.

Past medical expenses

Past medical expenses have been paid by the third defendant. The parties agree that, as all of the past expenses have been paid by the third defendant and there is no mechanism through which the third defendant can recover that amount, any damages awarded should not include a sum for past medical expenses.

Future medical expenses

The plaintiff also claims the sum of $77,528 on account of future out-of-pocket expenses. This is based on the amount of treatment he has received in the past. There was really no examination of these matters in the evidence, perhaps, because the first defendant's case was that there should be no allowance at all. I do not accept that as the basis for assessing ongoing expenses, nor do I accept that the plaintiff will see his GP or consult specialists as often as he claims. Further, I do not accept the claim for the cost of future surgery. I would allow the sum of $30,000 to reflect a reduction in the plaintiff's treatment going forward.
Damages against the first defendant are assessed as follows: Non-economic loss $267,000 Past loss of earning capacity $182,000 Future loss of earning capacity $411,075 Commercial assistance $76,275 Future medical expenses $30,000 TOTAL $966,350

Damages against the second and third defendants

Having regard to s 151G of the WCA the second and third defendants are only liable to pay damages for past and future economic loss. The plaintiff has been assessed at above the threshold for damages, which is permanent impairment of 15%, pursuant to s 151H of the WCA (the assessment of the plaintiff was 29%).
The findings I have already made in respect of loss of earning capacity apply to the second and third defendants. As such, damages are assessed as against the second and third defendants in the sum of $591,975.

Determination of judgments

The finalisation of judgments in any case involving an employer and a third-party tortfeasor may be complex. That is due to the differing statutory regimes. The differing statutory regimes lead to divergent results, which do not only impact the amount which might be recovered by the plaintiff against the defendants, but also the amounts which might be recovered by each defendant pursuant to any joint tortfeasor's cross claim (s 5(1)(c) of the Law Reform Miscellaneous Provisions Act 1946 (NSW). Further, any judgment against the second and third defendants (and on the cross claims) must have regard to at least part of the workers compensation which has already been paid.
Section 151Z(2) of the WCA applies. In this case, the plaintiff has pursued proceedings to recover damages from a person other than his employer (s 151Z(2)(a) of the WCA) and has pursued proceedings to recover damages from his employer (s 151Z(2)(b) of the WCA). As set out in s 151Z(2)(c) of the WCA, the damages which may be recovered by the plaintiff in proceedings against the first defendant, which is the non-employer tortfeasor, should be reduced by the amount the first defendant would have recovered from the second defendant by way of contribution but for the limitations on amounts recoverable under the WCA.
These provisions have a significant impact on the damages recoverable by injured workers, particularly in cases in which: 1. the amount of workers compensation payments received is high; and 2. the assessed contribution of the employer is high.
This is such a case. If not for the differing statutory regimes, the first defendant would have been able to recover contribution from the second and third defendants of 50% of the potential judgment against it obtained by the plaintiff - that is, $483,175. However, because of the limitation on damages payable by the second and third defendants, the first defendant can only recover 50% of the amount payable by the second and third defendants, which is $295,987. The effect of s 151Z(2)(c) WCA is to offset that difference adversely to the plaintiff. The judgment obtained by the plaintiff against the first defendant is reduced by the difference. The judgment obtained by the plaintiff against the first defendant is thus reduced by $187,188.
Further, the final judgments are affected by the decision in South West Helicopters Pty Ltd and Another v Stephenson and Others (2017) 98 NSWLR 1; [2017] NSWCA 312 ("South West Helicopters"). In South West Helicopters, the Court held (per Basten JA at [170]; Leeming JA and Payne JA agreeing) that an employer who has made compensation payments is entitled to be indemnified by another tortfeasor liable to pay damages to the worker pursuant to s 151Z(1)(d) of the WCA, but the right of indemnity is limited to circumstances in which the third-party tortfeasor is the only relevant tortfeasor. This impacts the cross claim pursued by the second and third defendants as against the first defendant.
The parties have agreed that, in circumstances wherein I find that all of the defendants are liable to the plaintiff, I would not enter final judgments. Instead, the parties will undertake the calculations in respect of the judgments against each of the defendants and on the cross claims.
With that in mind, the only orders I make at this time are: 1. Judgment for the plaintiff against the first defendant in an amount to be agreed or determined. 2. Judgment for the plaintiff against the second and third defendants in an amount to be agreed or determined. 3. I direct the parties to take steps to reach agreement on the amounts of the judgments, including judgments on the cross claims, within 21 days. 4. I direct that, thereafter, the parties approach my chambers to either have the judgment sums entered or seek to have the matter relisted for further argument.

Endnotes

Lang v The Queen [2023] HCA 29 at [6] (Kiefel CJ and Gageler J).
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 300; [2007] HCA 42 at [49] (Gummow J).
Watts v Rake (1960) 108 CLR 158 at 160; [1960] HCA 58 per Dixon CJ, Menzies and Windeyer JJ agreeing ("Watts").

Amendments 06 November 2023 - Amendment to sub-heading. 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: 12 February 2024

Law Reform Miscellaneous Provisions Act 1946(NSW)

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Judgment (26 paragraphs)

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Cases Cited (28)

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