El-Kheir v Pinnacle Construction Group Pty Ltd

El-Kheir v Pinnacle Construction Group Pty Ltd - [2018] NSWDC 155 - NSWDC 2017 case summary — Zoe

[3]

Liability

Apart from the Plaintiff himself, two persons asserted to be co-workers, Mr Hadi Azadian and Mr Charbel Finianos were called in his case. The Plaintiff's wife, Ms Mariah Adams also gave evidence.
Following the conclusion of these witnesses' oral evidence and an adjournment of the hearing, the Defendant applied for the Plaintiff, Mr Finianos and Ms Adams to be recalled for further cross examination. [5] For reasons given on 7 December 2017, I allowed a limited recall of each of these persons. [6]
Neither Mr Finianos nor Ms Adams responded to the call made on subpoena. [7] The Defendant did not seek an order [8] pursuant to s 97 of the Civil Procedure Act 2005. [9]
On 5 December 2017, the Plaintiff's Senior Counsel indicated that he did not believe Ms Adams was residing with the Plaintiff. [10] The subpoena addressed to her had been the subject of a substituted service order. [11] There was evidence tendered that before the Refugee Review Tribunal in 2013 and subsequently in this case that Ms Adams had supported the Plaintiff's claim for a protection visa on the false basis of him being a homosexual. [12]
In the case of Mr Finianos, the terms for the recall included, leave to cross-examine in relation to documents produced by the Department of Immigration and Border Protection, [13] which show that he departed Australia on 9 April 2014 and returned on 2 May 2016 and hence was not in Australia on the accident date. [14] .
In the case of the Plaintiff, the terms for the recall included the questions of Mr Finianos' involvement in the proceedings. Although there was an application by the Plaintiff to adjourn the proceedings, and re-open its case for reasons given on 7 December 2017 I refused to accede to it. Ultimately, no case in reply was called. [15]
The Plaintiff was recalled. He maintained that Mr Finianos was not close to him at the time of the accident, [16] and that he was on the job site. [17] He stated that he informed his solicitors that he could be a witness in the case. [18] When it was put to him that Mr Finianos was not even in Australia at the time of the accident, he stated that he was on the job site and he saw him, [19] and that he was telling the truth. [20] In re-examination, he stated that he had a conversation with Mr Finianos concerning his accident after he "saw him at the job site for Yossef Nassif," and was working at the site at the time. [21] He stated that as a result of the conversation, he asked Mr Finianos to come with him to see his lawyer, to help him in his case, which he did. [22] Mr Finianos also said in his statement that he had seen the Plaintiff at a job site where he observed him to be performing light duties. [23]
Mr Youssef Nassif whose substantive evidence I will address later in these reasons gave evidence that he knew Mr Finianos as he was from the same area in Lebanon. He said that prior to the hearing, he met him maybe a year and half ago but that he had never worked for him and he didn't know that he knew anything about the matter. [24]
The Defendant submitted that the Plaintiff's involvement of Mr Finianos in the matter was such that the claim should be dismissed as the Plaintiff was involved in fabricating evidence. Beyond this, it drew attention to the fact that the Plaintiff applied unsuccessfully to obtain a protection visa falsely asserting that he was homosexual and falsely maintaining that claim on appeal. [25]
The Plaintiff's counsel conceded concerns as to the Plaintiff's credit but submitted that it is more appropriate to treat the Plaintiff's evidence with caution, particularly where it cannot be corroborated. [26]
I do not consider the proceedings should be dismissed in these circumstances without analysing the evidence further. [27]
I have earlier referred to Youssef Nassif. He and the Plaintiff's brother, Mr Khaled El Kheir were called as to the Plaintiff's post-accident employment and assistance said to be provided to the latter.
For reasons beyond those stated thus far, I have had serious cause for concern about the credibility and reliability of the Plaintiff, Ms Adams and other witnesses called in his case; particularly Mr Azadian and Mr Finnianos. This will be discussed further in these reasons
In the circumstances, I have closely analysed all the evidence in accordance with the principles enunciated by Basten JA in Sangha v Baxter where his Honour stated:- There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44]. [28]
In the Defendant's case, evidence was called from Mr Joseph Bechara and Mr Andrew Tetlow.
Mr Bechara was the Director of the Defendant and indicated he was a construction manager responsible for the day to day running of construction work. Mr Bechara, prepared two statements dated 21 October 2016 and 15 August 2017. [29]
At the time of the construction, the Defendant was not running any other construction project and Mr Bechara stated that he was present on-site most days undertaking duties being:- 1. Checking progress of works; 2. Reviewing supplies; 3. Making sure that everything was going okay; and, 4. Taking complaints. [30]
Mr Bechara recalled that on or around September 2013, the Defendant commenced the process of sub-contracting work for the construction including sub-contracting formwork to Dynamic. In relation to the construction, the Defendant engaged a number of staff, including Mr Andrew Tetlow. Mr Tetlow was employed for a period of three years, up to the end of February 2015. [31]
Mr Tetlow was described by Mr Bechara as being the site manager, whose duties during the construction include:- 1. Organising and facilitating tradeworks; 2. Making sure contractors turned up to site; 3. Ensuring that construction works were being undertaken in accordance with the architectural plans and programs; 4. Site inductions; and, 5. Making sure diaries were maintained and updated.
Specifically, Mr Tetlow was working on the site, on and around the date of the accident. A statement as to the accident dated 22 May 2014 was prepared by him for presentation to the Human Resources team for investigatory purposes. [32] He stated that he believed that this was something to do with the insurance company. [33]
Mr Bechara also stated that the Defendant employed Mr Dennis Harden as a labourer on-site to provide the following:- 1. General cleaning; 2. Ad-hoc construction work when directed to do so by the Defendant; and, 3. Safety tasks.
Mr Bechara stated that Mr Harden did not perform work duties for any other contractors. In order to assist Mr Harden, Mr Elias Youssef was employed as a labourer under the supervision of Mr Tetlow and his duties included:- [34] 1. Traffic management; 2. Managing deliveries; and, 3. Unloading materials and material handling.
Neither Mr Harden, nor Mr Youssef were called to give evidence.

[4]

Induction

The Plaintiff stated that he obtained a position with Dynamic after being advised by his cousin to contact a Mr Tarek Hbouss who had a company that did formwork. He said that he called him and was referred to a person named "Maneh," who he contacted and said that he was a carpenter looking for a job. He was told that he could start on Monday and to go to the site. He stated that when he got there on 5 May, he met Mr Maneh Hbouss, who was Tarek Hbouss' brother. [35]
On 5 May 2014, the Plaintiff attended an induction carried out by the Defendant on the subject site. A document titled "Pinnacle Construction Group Site Induction Form" dated 5 May 2014, containing his name was tendered and states:- "I have attended the Allpro's site induction program, which explained and detailed the Allpro's site safety and environmental rules, work conditions and other worksite requirements. My responsibilities and obligations were appropriately explained and are clearly understood by me, and I hereby declare that I will comply with Allpro's induction requirements." [36]
The inductor identified, was Mr Andrew Tetlow.
The Plaintiff stated, whilst his name was on the induction form, he did not recall if that was his signature. [37] Later he stated that it was not his signature. [38]
He further stated that he did not recognise any of the handwriting on the page [39] and it was not his own. [40] He added that he could not remember whether he wrote his name. [41] The employer identified on the form was Fast Form Group NSW. He said he had never seen that before [42] and did not know who they were. [43] He claimed that he did not say that he was employed by Fast Form Group NSW. [44] Despite this, the Plaintiff's response to the Statement of Facts in Issue identified agreement with the claim made by the Defendant, that he attended an induction on the site on 5 May 2014 and signed an induction form listing his employer as Fast Form Group NSW. [45]
Further, despite denials in cross-examination in relation to the induction form, the Plaintiff in his statement and evidence in chief stated that he was required to sign a "safety form." [46] The Plaintiff also stated that he did not read it before he signed. [47]

[5]

Work Schedule

The Plaintiff's evidence was that apart from the date of his induction, he worked every succeeding day leading up to 9 May 2014, when he occasioned his injury. [48]
In cross examination, the Plaintiff rejected the suggestion that he only expected to get three days' work out of the job. [49]
It was further put that after the induction on 5 May 2014, the Plaintiff left the site and did not return until the date of the accident. The Plaintiff rejected this proposition. [50] It was put to him that Fast Form, identified as the employer in the induction form, did not actually give him any work. The Plaintiff stated that he did not know who Fast Form was, [51] and rejected the suggestion that he rang Mr Hbouss later in the week and asked if he had any work. [52] He further rejected that the first day that he did any work on the site was 9 May 2014. [53]
The Plaintiff gave evidence that on the day that he attended the induction he started at 6:30am and subsequently at 7:00am started work there. He stated that Maneh Hbouss told him that the name of the company was Dynamic Formwork.
The Plaintiff described the instructions that he was given by Mr Hbouss as follows:- "On Monday we did work on a column - construction regarding the columns. On Tuesday there was a wall, a large wall that on the construction site we have to work on. On Wednesday it was raining. On Wednesday when it was raining, we worked in the basement, on the roof, on the ceiling. On Thursday we completed the work on the columns, and on Friday I was working on the columns and this is when I got hurt." [54]
The Plaintiff's evidence was that on 9 May 2014, he started work at 7:00am and Mr Maneh Hbouss was not on the job site. He stated that he called him and was told to "ask Mahmoud," who was the supervisor of the form workers. He stated that he was told that Mahmoud would tell him what to do. [55] He stated that he proceeded to ask Mahmoud what to do and was told, according to his statement, the basement level of the building had been laid and concreted and the columns were up and the next floor had been formed in slabs. He stated that they were working on forming up four columns so they could be poured when the third level would be slabbed as well. [56]
In cross examination it was put to the Plaintiff that when he attended the job-site, on 9 May 2014, he met Mr Hbouss there and he was told to go and work with Mr Mahmoud Hamoud. The Plaintiff rejected this [57] but later conceded Mr Hamoud was there at the time of the accident, he was a form worker and was in charge on the day of the accident. [58]
The parties acknowledged that Lbars (otherwise referred to as starter bars) was a term, given to the piece of metal which runs horizontally in the reinforcing cage in the slab or footing and then turns up at 90 degrees extending above the level of the slab or footing. The reinforcing cage of the column was typically tied to the starter bars during the process of installing the formwork for that column before concrete is poured so as to make the vertical concrete column properly attached to the horizontal concrete member below it. [59]
According to the Plaintiff, when each level of concrete is laid, L-bars are in put in place to identify where the columns are to be built, and concrete is then poured around the L-bar so that the horizontal part of the steel bar is completely covered in concrete with only the vertical part of the steel bar protruding. He stated that generally speaking, the form worker would form up three sides around the steel bars, leaving one side open until a cage has been lowered and tied together. Once the steel cage has been lowered and tied to the steel bars, the form worker would then form up the final side of the column so that the concrete could be poured. [60]

[6]

The Accident

The Plaintiff stated that on the morning in question he had been working to form columns around the steel bars so that the concrete could be poured to form the columns. He heard Mr Andrew Tetlow speaking to one of his labourers and saying words to the effect of, "we don't need these L-bars, they are in the wrong place, remove them." He said that he knew Mr Tetlow was speaking to one of his labourers as he heard him to asking "his boys' to cut the columns and before that if the labourers are for the builder they're cleaning they do something for the building "that mean they're working for Andrew." [61] The Plaintiff said that he continued to work. In cross examination the Plaintiff that he heard Mr Tetlow say those words at half past 7 or 8 o'clock in the morning and that the accident happened at 9.30, 10 o'clock. [62] When questioned about what he heard Mr Tetlow say to one of his labourers prior to the accident, the Plaintiff stated that he heard him say that "this column, we don't want it." He said that they cut it by grinder. He said that between the time that he heard those words and the time of the accident, he had been working in the one area. [63]
The Plaintiff's evidence in chief was that on the day in question, there were more than ten columns on the floor and before the cage was dropped, three sides of the column were formed. [64] He stated that they build three sides of the columns in order to secure the cage, after which, they close the remaining side. [65]
The Plaintiff stated that later in the morning, he was told by Mahmoud, to form up the final side of the subject column. He stated that he had not worked on this particular column before and did not know who had formed up the three sides of the column. [66]
In cross-examination it was put to the Plaintiff that the column was not due to be filled for another three days. He stated that he was told that he had to work very fast and that he had to finish quickly. He stated that Mahmoud, told him:- "Ali, we want to finish the column today. We want to be ready for the column and when everyone in the job site and the formworker, they weren't, they weren't be, like stronger, quickly, do everything to, to the boss to like him, to give him job everyday, to… (not transcribable)… job. [67]
The Plaintiff maintained that he was working on the column together with his co-worker named, Merhej. [68] According to the Plaintiff, a crane was overhead at the time and was lowering the steel cage which was to be tied to the steel bars but it could not fit and could not be tied. He stated that when the crane lifted the steel cage, he could see that one the steel bars was bent and was not vertically aligned. In these circumstances, he stated that, the crane was overhead and was waiting for the problem to be fixed. [69] He stated that he could not stand in front of the column for forty-five minutes waiting for the someone to come as it would be suggested that he was standing there doing no work and then he would be sent home. [70]
The position of the steel cage, referable to the column was depicted in a diagram in Exhibit B. The diagram identifies in stages 4 and 5, a bar being bent to the right indicating that the cage could not be pulled down.
In cross-examination, the Plaintiff maintained that the bar was bent before the cage was lowered onto it. [71] He stated that he noticed that it was bent when the steel cage was being lowered inside the wooden column. He thereupon told the crane driver that they were going to have to lift the cage so that he could fix it. [72] He conceded that he knew that it was not his job to fix it. [73] He stated that knew that it was the steel fixer's job [74] although he had fixed that sort of problem himself. [75]
The Plaintiff asserted that he called for the steel-fixer three or four times but no one came, they were busy working on the other side and he could not wait for them as they wanted to pour the concrete the following day and there was urgency. [76] In cross examination the Plaintiff acknowledged that he did not mention anything about calling out for steel-fixers in his statement. [77]
He therefore proceeded to grab a "U-jack" which was lying nearby so that he could manually straighten the bent bar. He stated that he had done this before on other construction sites and had seen it done by many before in his lifetime on other construction sites. [78]
He stated that the U-jack was approximately ten kilograms in weight and was "hollow." [79] He stated that surrounding the bars, one of which was bent, there was formwork on three sides [80] and was 3.6 metres in height. [81] He stated that when he used the U-jack, he was pulling back with all his power. [82] He said that the steel bar came away quickly at which point, he was struck on the forehead.
According to the Plaintiff, he did not have time to see if the steel bars had been set in concrete or epoxy glue, given that the crane was waiting overhead to lower the steel cage. He did not think that the steel bar could have been set in epoxy glue [83] and nobody had told him that the steel bar had been set in epoxy. [84] He proceeded therefore to place the U-jack over the bar and pull the bar so that vertical alignment of the bar could be achieved. After attempting this manoeuvre, the bar came away from the concrete and the U-jack struck the Plaintiff and hit the top of his head. [85]
The Plaintiff conceded that Mr Hbouss did not give him any instructions that if steel fixing was required to wait for a steel fixer nor any instruction as to how he should try and straighten the L-bars. [86]

[8]

Hardi Azadian

Mr Hardi Azadian described himself as steel fixer. [94] He stated that he met the Plaintiff on the job site where the accident occurred. Mr Azadian stated that he would not describe the Plaintiff as a friend but as a work colleague and that after the accident, he did not see him until he was asked to make his statement on 10 July 2017. [95] He had stated that he had been working as a steel-fixer from 2013. [96] In cross-examination however he qualified this by stating that there was no interpreter available when he made the statement and the conversation was not clear. He said that he was trying to say that 2013, was the starting point of his work with "Eddie," however that did not mean that he had been working for him since 2013. [97]
Mr Azadian said that he was not trained as a steel-fixer as referred to in the statement, but rather as a labourer. [98] When specifically asked when he last worked as a steel-fixer, he said "maybe once or maybe not even once, when the incident happened for Ali, maybe that was the only time." [99]
In relation to the day of the accident, Mr Azadian said that he working as a steel-fixer, but was a labourer for Eddie. [100] He said that he started working for Eddie, who told him what to do and was carrying iron and other metals for other professionals. [101] He said that he came to work on the site as he was very new in Australia and was trying to find a job and one of his friends was working with or knew Eddie and told him that he could come and do this work. He said that he tried for two days, it was very hard and difficult and he did not continue. [102] Specifically, he stated that he worked on the site for three days, being two days prior to the accident and the day of the accident. [103]
Mr Azadian stated that when he went to the job at Gladesville, he was given a short induction by the builder's representative. He recalled having some safety issues explained and there were matters which involved safety boots, helmet and safety glasses. He was told where the toilets were, where the office was, where he could get water and where he had to put the rubbish and he was also shown the lunch area. [104]
Despite the contents of his statement in his oral evidence, Mr Azadian said that there was an explanation given to white card holders and an induction of "for example, [when]… lunchtime is, where the bathroom is, these kinds of things." [105] He conceded that he did not report his presence to the builder, but only to Eddie. [106] He said he spoke to Eddie and told him that he needed an induction and he was using some people who had white cards in their pockets. He said that Eddie was meant to bring a white card for him. He said that because he was new and unable to communicate in English and his job was running behind, and the builder wanted to push this forward they did not take this induction very seriously. [107]
Mr Azadian stated that his boss, Eddie took instruction from the builder who was also the man who gave them their inductions. He stated that he also took instructions from Maneh, who he knew from other jobs and knew that he gave his boss, Eddie work. [108]
Mr Azadian went on in his statement to record:- [109] "After I had been working on the site for some time, I saw the builder having a discussion with another man concerning some steel rods which had been in place before the cement floor had been poured. It had since hardened. I do not know the name of this man that the builder was having a discussion with. I know that he was not working for Eddy or Maneh. I saw the builder point to the rods and point to the cement floor a few centimetres away. This man then went to the builder's office and came back with a grinder which he used to cut the metal rods off from the concrete slab. He then got an electric drill from the office and started drilling several holes in the concrete slab. He then got a glue gun from the office and applied the epoxy to the holes that he had drilled. He then placed the metal rods which he had cut earlier into these holes. The man who had performed that work which I have just described I believe was employed by the builder. I believe this because the builder informed us during our induction who the builders' workers were. This was one of those men. Whenever I had needed equipment which we did not have, I asked one of these workers for the equipment, as we have been instructed by the builder to do. The workers, including the man who did the work which I described in the preceding paragraph, would get the equipment from the office and bring it to us. The reason for drilling the holes into the concrete to install the metal rods indicated to me that the builder had either changed the plans or that the steel rods were originally put in the incorrect place. In either event, my experience as a steel fixer informs me that the movement of steel rods was a decision that only the builder on the site could make."
In cross examination Mr Azadian stated that prior to the accident he was moving around the metal bars and there were two more professionals who were working there doing steel-fixing; he was helping too. [110] He said that his role was to stay close to those two professionals and if they needed something, he would give it to them. [111] During the incident, he said that people were connecting and fixing up a column and he was giving them the things they needed from a bag. [112] The two professionals were connecting and tying off the columns. [113]
Mr Azadian further stated that he saw the workers put the metal bar in. He said he knew that because it was just one person and it was explained that if he wanted anything, he should try and get it from him. [114] He stated that was the person that works "for the boss." [115] The discussion between the builder and the other man concerning the steel rods was said to have taken place on the day of the accident or perhaps a day earlier. [116] In his statement, he said that he did not know the name of the person that the builder was talking to, and that he was "not working for Eddie or Maneh." When asked in cross-examination, the name of the person the builder spoke to, Mr Azadian stated that he was talking to Maneh who was in charge of the formwork staff. [117] He later recanted and said it was "a labourer who is working for the main boss." [118]
Mr Azadian gave evidence that Maneh "came towards the steel fixers and explained to them that the work needs to be finished." [119] He stated that he saw Maneh in the same area as he was working for an hour or some before the accident occurred. [120]
When asked whether he saw the person get the glue gun from the office and apply epoxy to the holes, he stated that he saw the person going backwards and forwards to the office to bring the grinder or "anything" but he was mainly focused and concerned on his own jobs and was not keeping an eye on him, to see what he was doing. [121]
He noted that he was not sure when the concrete pour was due but they intended to pour the concrete as soon as they could, and the job was under "a lot of push." [122] He maintained that he knew the person was grinding and putting the bars in the holes as well as drilling the holes in the area as it was close to him. [123]
Mr Azadian was adamant that he recalled Maneh being always present when he worked. He stated that he worked there for two days and he was there for the whole two days and that he recalls the boss or builder telling Maneh that he needed to sort out the metal bars. [124]
At the time of the accident, Mr Azadian stated that the overhead crane was lowering metal bars to where the steel reinforcement rods were sticking up out of the concrete. He stated that the metal bars were lowered and tied to the steel reinforcement bars sticking up from the concrete. He recalled the steel reinforcement rods that had been moved by the builder were not all vertical and one of the steel bars was not straight and protruded from the hole in which it had been placed at an angle, which meant that the metal cage that was being lowered could not fit around it. [125]
Mr Azadian stated that the Plaintiff was moving the formwork from one side of the column when his boss, Eddie, said to him, "go help him." He stated that he started to go over to where the Plaintiff was and as he approached, the Plaintiff had the timber removed and placed U-jack over the protruding steel rod. He stated that he then started pulling it towards him to try and straighten it. At that point, "he was about 1-2 metres away." [126]
Mr Azadian stated in cross-examination that he was asked to assist the Plaintiff about ten minutes before the accident, and that he was assisting him for those ten minutes. [127] He stated that the Plaintiff did not call out for any steel fixers in the ten minutes he was around him and immediately before the accident. Mr Azadian stated that this was his job and it was one piece of metal that he should have been able to manage. [128] He acknowledged that it was part of his job to fix bend steel but stated that they did not want to lose time, whilst steel fixing needed to be done and everyone can do it. He then stated that it was only part of the frameworks people's job. [129]
Mr Azadian conceded that if he was trying to fix the steel, he would have pushed it away from him. [130] He stated that the Plaintiff, to his observation, could have pushed the steel away rather than pulled it. [131] When specifically asked whether he knew what happened to the steel bar, that the Plaintiff was attempting to straighten prior to the accident, he stated that he was concentrating on his own duties but the builders, workers or labourers had put the metal bars in the holes in the ground. [132] He maintained that he saw the workers put the metal bar in. [133]
In cross examination, Mr Azadian reiterated that the metal bar came out of the ground. [134] He stated that after the Plaintiff left, the other friends and colleagues and Eddie had a look at the hole and the hole was too shallow. [135] In his statement however, the stated that:- [136] "In my experience, ordinarily it is not too difficult to straighten a steel rod in those circumstances, it is usually done by hand and usually a U-jack is used. The reason that the rod popped out of the ground was either that the hole in which it had been placed was not sufficiently deep, or that the glue in which it had been placed was insufficient or insufficiently set. I think the latter is unlikely, given that the accident happened about 2 hours after the builder's worker had applied the glue. Usually this glue takes about half an hour to set."
In his statement, Mr Azadian, stated that as the Plaintiff was pulling the steel rod towards him, it suddenly came out of the cement slab and hit him on the head, near the top of his head, that he was wearing a safety helmet at the time and that the Plaintiff fell down and his safety helmet fell off his head. [137] In cross examination Mr Azadian maintained that the Plaintiff was wearing a hard-hat and added that the company was very sensitive about these things and that they were all wearing a hard-hat. [138]
In his statement, Mr Azadian stated that he did not write the words on the Injury Notification Form under the name of Hadi Hardinpour, [139] or the Injury Notification form, under the name of Mohammad Havari. [140] He stated that in the first document he did not fill in the details and did not sign it. [141] In the second document, he said it looks like his signature, but he did not complete the document and it was blank when the builder asked him to sign it [142]
He said that shortly after the accident the builder took him to the builder's shed and he was asked to write his name and sign a blank form. He said he wrote "Hadi" and signed the paper and the builder told him that he would fill in the details later and nothing would happen to him. [143]
In examination-in-chief, the witnesses' attention was drawn to an Injury Notification Form. [144] Mr Azadian stated that he did not know any Hadi Hardanipour by that name and that the signature contained on the document was not his. [145]
Mr Azadian was also asked whether he knew of a person by the name of Mohammad Hervari. He responded that he knew that person. [146] He identified as his signature on this Injury Notification Form [147] which he marked with a red circle being adjacent to the name of Mohamad Hervari. [148] He stated that he could not remember whether there was any of the hand writing on the document that he identified before he signed it. [149]
In cross-examination, Mr Azadian conceded that he does not write English and with reference to Injury Notification Form, the name, Mohammad Hervari was not him, nor a name that he used. He stated that he could not identify anywhere on the document, where his name was written as opposed to a signature, [150] and that he was not any of the three people referred to in the document. [151]
On the day of the accident there was evidence of a Tool Box Talk involving "Eddy Morebani" as Manager/Presenter. [152] Adjacent to a name of Mohammad Hervari on the sign-off sheet Mr Azadian circled what he claimed was his signature in red. [153] He stated that he did not attend the toolbox meeting. [154] He could not remember if there was any writing on the sign off sheet before he signed but he didn't fill in any of the details. [155]

[9]

Charbel Finianos

On 22 August 2017, I was informed by Senior Counsel for the Plaintiff that it was proposed to call Mr Charbel Finianos to give evidence. [156] Further I was advised that a statement from Mr Finianos had not been served upon the Defendant prior to that time. [157] There was some issue as to whether directions had been made requiring such service. [158]
Be that as it may, Mr Finianos did give evidence and a statement signed by him, dated 10 July 2017, which was admitted. [159] Mr Finianos' statement asserted that he knew the Plaintiff from having worked at a building site in Canberra some six years prior. He stated that he had worked with the Plaintiff from time to time on various other building sites, but would not describe him as a friend as they did not socialise together away from work sites. [160] He stated that he was an experienced form worker, having worked since 2002. [161] His evidence was that at the time he was working for Supreme Formwork and his boss was a person who he described as "Ehab Arjaar" but he was not sure of the spelling. [162]
Mr Finianos stated that he had arrived at the job at Gladesville and was told to go and ask for Maneh. His evidence was that his first day at work was the Thursday before the accident. [163] He accepted that no one told him to go to the building site before that Thursday. [164] The purpose of his attendance at the building site on that day was to help pour the columns. [165] In oral evidence, Mr Finianos stated that he met a man called Maneh at the site on Thursday but did not see him on Friday. [166] He stated that whilst he was working around the area where the Plaintiff had his accident, he did not see Maneh at the time. [167]
In his statement, Mr Finianos stated that prior to the accident, at about 8am, he saw a man cutting steel rods that had been set in concrete with a grinder. He said he drilled some holes nearby and he used epoxy glue in the holes which he had drilled. He then replaced the steel bars in these holes and they protruded from the concrete about 800-900 millimetres. [168] On the basis of his observations, Mr Finianos stated that the holes were about 20-50 millimetres deep and a blower was used to clean out the holes before the epoxy was placed within. He stated that he slid the metal rods on top of the epoxy. The person was not someone that was known to him was definitely not a form worker or part of the form working team. He stated that he had never known a form worker to do that type of job, it was the type of job that a builder or builder's team would do and in particular that he did not have that job to make the hole. [169]
In cross examination, Mr Finianos stated that he did not see the steel fixers working around the steel bars where the Plaintiff was working. [170] He said there was nothing wrong with them being there on the job but he did not see any. [171] He stated that he did not talk to any of the steel fixers. [172] He stated that the person that he saw using a grinder, he did not recognise as a form worker. When it was put to him that other than the fact that he was not a form worker he did not know who he was working for he responded "he was cutting steel and drilling." [173]
Mr Finianos was adamant that the form worker does not do the cutting. He stated that this was the role of steel fixer. [174] He stated that only a steel fixer did this work because the surveyor had to be brought in the next day to check if the steel had been cut correctly. [175] In re-examination, Mr Finianos asserted that it was not the job of a form worker to drill holes in concrete slabs. [176]
He stated that there were two slabs of formwork. One had already been poured on the ground and he did not notice any steel fixers around there. [177] He agreed that he was working in close proximity to the Plaintiff. [178] He did not know Mr Azadian and stated that he had not heard of him or met him before. [179]
Mr Finianos stated that in the half hour before the accident, he saw the Plaintiff was working on a column. [180] He stated that he was working by himself and whilst he was working nearby, fixing the panel. [181] At the time he said he was approximately three metres away. [182] He said that he saw the Plaintiff working alone in the ten minutes before the accident. [183] At one point, he recalled the Plaintiff shouting "U-jack" to which he responded saying "no, fix it yourself" and "you do it yourself because I'm just completing my job here." [184]
Mr Finianos stated that he himself had used a U-jack long ago. [185] He stated that if he was using a U-jack, he would pull it towards him. [186]
At the time of the accident, he said that he did not see what happened and that he only saw the Plaintiff screaming when he fell to the ground. [187] He said that the Plaintiff at the time had a hard-hat on. He stated that when the Plaintiff fell to the ground, it was next to him. [188] He said that he was told not to go near the Plaintiff and not to touch him. [189] He said he saw the Plaintiff lying on the ground and there was some bleeding from his head. He said the Plaintiff was taken away from the site by a man he did not know. He then worked half a day and was told by Maneh to go home. [190]
In his oral evidence he said that he left work at about 10:30am on the Friday, because of what had happened to the Plaintiff. [191] He stated that he did not attend the toolbox meeting on the Friday and it was not suggested to him that he should. [192]
After the Plaintiff was taken away, he saw a piece of metal on the ground with concrete and epoxy around it, near where the Plaintiff was lying. He stated that it appeared to have been pulled or yanked out of the ground. He said it was not deep in the ground because the hole that was left behind was not deep. In his experience, the only reason that the rod would have been bent was because it was not straight and if it was not straight, the formwork could not be placed around it. [193]

[10]

Joseph Bechara

In his statement of 15 August 2017, Mr Joseph Bechara records that the induction forms completed in relation the Plaintiff indicated that he was inducted onto the site on 5 May 2014 as an employee of Fast Form Group NSW. [194] He states that the Defendant had no contractual relationship with Fast Form but was aware through thirty years of experience in construction, that typically the formwork sub-contractor employs workers and engages specialised labour to supplement their work on a day-to-day basis. [195]
Mr Bechara asserted that the insulation and rectification of vertical starter bars that might have been installed defectively or in the wrong location were the responsibility of Dynamic. This is said to be so in light of the contents of the contract of 20 November 2013 at [13.1] between the Defendant and Dynamic, which stated:- 13. Defects 13.1 The Subcontractor shall maintain the Subcontract Works until Completion and thereafter promptly make good all defects that may appear in the Subcontract Works prior to the expiration of the Client's defects liability period or any extension of such period. If the Subcontractor fails to rectify any defects promptly the Client's Representative may rectify the defects and the resulting cost incurred by the Client will be a debt due from the Subcontractor to the Client.
Furthermore, the scope of works for concrete formwork annexed to the contract between the Defendant and Dynamic records:- [196] 1. Furnish all labour, materials, equipment's and incidentals required and design, install and remove formwork for placing concrete as shown on the Drawings and as specified 2. Secure to forms as required or set for embedment as required, all miscellaneous metal items, sleeves, anchor bolts, inserts and other items furnished under other specifications and required to be cast in the concrete. 3. Placing all reo and tying properly with tie wire as per structural engineer's design plans 4. Place all concrete on clean, damp surfaces, free from water, or upon properly consolidated fills, but never upon soft mud, dry porous earth, or frozen ground.
Mr Bechara stated that the site diary recorded the daily activities of labourers, sub-contractors and visitors on the construction site and he noted that it was completed in relation to this particular construction by Mr Tetlow and himself. Specifically, in relation to the diary entry for 5 May 2014, he recorded that he was able to identify the handwriting of Mr Tetlow and that it recorded that Easyform was working on the construction site. He was aware of an internal relationship between Easyform and Dynamic Formwork as they were two brothers operating the companies together and sharing resources. [197]
In relation to the diary entry for 9 May 2014, the site diary recorded that Mr Dennis Harden drilled starters. Mr Bechara stated that this refers to drilling horizontal starter bars on the fire escape stairway from the ground floor till level one of the construction. [198] Mr Bechara stated that the process used by the Defendant for drilling horizontal starter bars was to drill and set them into place because the concrete is already set before the bars are inserted. As this work was said not to fall within Dynamic's scope of works, it had to be performed by Mr Harden. [199]
Mr Bechara also stated that when a concrete pour is undertaken, it is planned in advance and arranged with concrete providers. In this instance, the concrete supplier was identified as Hanson Construction Material Pty Ltd. Mr Bechara stated that if the concrete pour was undertaken on 9 May 2014 that would have been recorded in the site diary. [200] On this day, the site diary had no record of the concrete pour being scheduled.
Mr Bechara stated that he needed at least three days to organise the concrete pour in order to organise a form worker and confirm the pour date, book the concrete supplier and arrange a concrete pump. He noted that the site diary for 12 May 2014 recorded the concrete pump on the site at 1:30pm, which would indicate that the pour was to occur at that time and not on 9 May 2014, such that there was no rush to undertake the work of installing the framework promptly. [201]
In cross-examination, Mr Bechara accepted that the Defendant was in control of the final outcome, according to the program with his trades knowing what was to be achieved. [202] He stated that if there were alterations to the program, deviated from the design, that they required the Defendant's consent. [203] He stated that the Defendant did not tell anyone who to employ but it did control the circumstances in which people were allowed to come onto the site. [204] He also accepted that the Defendant was in control of compliance with occupational health and safety requirements. [205] As to the question of how subcontractors do their work, Mr Bechara stated that they submitted their safe work statement and as long as they were working within that, they would tick that box and it was up to them to carry out all their sub-contract work according to their safe work statement. In the event that it became apparent that they were not doing something according to that statement, then the Defendant could intervene. [206]
Mr Bechara accepted that starter bars embedded in concrete could have come out depending upon on how deep it was embedded. He stated that his understanding was that the head contractor [207] had left the starter bars out and they were quite aware of that and the head contractor came and placed them in the concrete and depending on how deep and if it was not properly inserted, the chances were that it would not stay in. [208] Mr Bechara accepted, according to the diary note, that a sub-contracted company named AOR had been engaged onsite on 9 May 2014 as the supplier of the crane. The reference in the site diary noted "lift steel to columns 7:00am to 4:00pm." [209] It was said by him to have meant that the steel would have arrived and they would have been moved from one position to another, so that a steel cage could be formed up.
Mr Bechara's evidence was that if a starter bar was bent, this would have been worked out before the cage was lowered into position because the column would have been marked at the base. [210] Accordingly, before the cage was even dropped, the starter bar would have been observed as being outside the column area and in such as case, he stated that there was no need to bend it and that it would need to be cut and re-drilled in the right position.
He stated that the methodology of having the column formed on three sides and leaving one side open and then working out the starter bar was out of position was wrong. [211] He accepted that in the event that the bar was not in vertical alignment, one of the ways of fixing it would be to use an angle grinder to cut it. Further, he accepted that if it were necessary because of structural requirements, a hole would need to be drilled and some form of adhesive will need to be applied into the hole and the bar set into the hole using Chemset. [212] He stated that a cage could be dropped on three bars, [213] however, he would have addressed the issue of a protruding bar before dropping the cage. [214]
Mr Bechara was uncertain as to whether references in the diary entries to visitors to the site including a "Joe" would be himself as he was not the only person with that name on the building site. [215]
He stated that he lived nearby and most builders, he was an early riser and would get to the premises, catch up with persons on-site and might hang around for an hour or two. [216]
He stated that he did not know whether he was on the building site on 9 May 2014. [217] He accepted that it was part of Mr Tetlow's responsibilities to ensure that the starter bars were placed in the correct fashion by the steel workers and rectified if they had made a mistake. [218] He stated that it would be odd for the crane to be dropping steel cages at that point in the construction, in particular, the crane would not simply hold the cage up in the air. [219] He stated that they would not have persons operating the crane and using it whilst waiting for the bar to be fixed. [220] He stated that whilst the bar was being fixed there were other things that could have been done on the job site. [221]
Mr Bechara accepted that if there were no diary entries for 10th and 11th May 2014, and the those days were a Saturday and Sunday respectively, it would be safe to assume that the site was closed on those days. [222] He stated that with the concrete pour being booked for 1:30pm on 12th May, whether or not all columns and other matters involving the concrete had be complied with by the Friday or the morning of 12 May, depended on the extent of work, but that it was possible to work right up until that time. [223] He said it was not uncommon where there are twenty columns that need to be poured, that you leave columns and come back and pour them with the main deck. [224]

[12]

Plaintiff's Employment

Mr Tetlow stated that he first met the Plaintiff on 5 May 2014, being his first day of working at the Gladesville site. He stated that the Plaintiff was inducted and completed the site induction form personally. In the form, he said that he left out the details of his employment and noticed that he did not fill out who his employer was. Mr Tetlow stated that he asked him and was informed that it was Fast Form Group NSW. Consequently, Mr Tetlow says that he wrote the employer's details onto the induction form. In his principal statement, Mr Tetlow reiterates that the Plaintiff provided him with a partially completed form and left the employer name blank. Following a request to the Plaintiff, Mr Tetlow wrote "Fast Form Group NSW." [233]
In cross-examination, Mr Tetlow accepted that the Plaintiff didn't know the name of his employer because he was a sub-contractor to someone and stated that it was normal. [234] He stated that it sometimes happens when someone attends for induction, that their English is not good and he does not fill in the employer because he does not know. [235] He stated that he did not know if Mr El-Kheir knew who the employer was or not, but whatever he told him, he put down on the form. [236]
Mr Tetlow stated that he thought he had to ask him who his employer was because he forgot to fill it in. [237]
Mr Tetlow states that he believed that a few workers from Fast Form Group NSW working at the Gladesville Site on 5 May 2014. [238]
Mr Tetlow stated that the Plaintiff did not work at the Gladesville site after 5 May 2014 until 9 May 2014. Mr Tetlow states that he attended the site on those days and did not see the Plaintiff in attendance. In cross-examination in relation to this, Mr Tetlow stated that he doubted that the Plaintiff was in attendance on 6-8 May 2014 because it was not very busy. [239] However he accepted that he didn't pay any attention because once an employee had been inducted, as far as he was concerned, he didn't need to write his name down every day. [240] He stated that at the time, he had a recollection that the Plaintiff was not there. [241] He confirmed however that he had no records of who worked there and just kept numbers. [242]

[13]

9 May 2014

Next Mr Tetlow stated by reference to his site diary for 9 May 2014, that under the heading, Labourers, appears the name, "Dennis" with the work completed being, "drill starters" which was in his handwriting. He stated that site diary also refers to "install stair form" and he believes that the reference to the drill starters is a reference to starters for the stairs and not the columns. Mr Tetlow confirms that it is possible that he did give an instruction to cut off the starter bars which he observed were in the wrong place because the pins setting out the position of column. He stated that there would have been "mickey pins" at the corner of the rectangular footprint of the column to be formed and recalls installing the mickey pins himself on this job. He stated that the starter bars should have been sufficiently far away from the mickey pins to make sure that when the concrete is poured, there is adequate amounts of concrete between the reinforcing cage, from the starting bars to the outside edge of the columns.
However Mr Tetlow denied telling or having told the form workers or steel fixers that the "steel bar was set in epoxy glue" and denied directing anyone on the site to reset the starting bar for the column. He stated that the starting bars and the columns are part of the reinforcing cage for the footing or the slab and continued to become part of the reinforcing of the column and in this way, joined the two components together. He stated that there would be no purpose to drill a starter and filling it with epoxy as it was not needed to show where the column was to be poured because the mickey pins do that and could not be connected to the reinforcing of the slab or footing so it would hence not perform its function in accordance with the engineering design. According to Mr Tetlow, starter bars can be drilled and epoxied in for block walls and other types of walling systems and stair work because you do not need the extent of the embedment that you would for columns.
Mr Tetlow states that if he directed the starter bars to be cut off, there is no way he would have directed the starter bar be drilled and epoxied nearby. This is because it would serve no purpose and he would not have directed it to have been done. [243]
In cross-examination, Mr Tetlow accepted that there was an angle grinder in the office. [244] Mr Tetlow accepted also that there was an electric drill in the office, but stated that there would be no need for Dennis to drill the holes and that he did not tell him to do that. [245] He stated that in the event that Dennis did get a glue gun, that was something that he kept in the office, [246] and if he put Chemset into holes that he drilled, that would be a useless thing for him to do. [247] He accepted that it would not provide much structural support for the columns. [248]
In re-examination, Mr Tetlow stated that he had never instructed Dennis to do that work, never seen him do such work and in his recollection, Dennis was only applying epoxy to bars on the walls and the stairs for the stair form to go in, "other than that, I've got no idea what he was supposed to be doing." [249] He stated that because of the width of the bar, restarting the bar would require the coring of a hole and that was not normally done by anybody. [250] He stated that the Defendant did not have access to a core drill and nor did he own one. [251]

[14]

Accident

Mr Tetlow did not witness the accident.
Following its occurrence, Mr Tetlow stated that he told the Plaintiff that he would need to complete an incident report and the Plaintiff explained what had happened to which he wrote them down and asked the Plaintiff to sign the incident report after reading it back to him confirming that it was correct, where upon he asked him to sign it. [252]
The Injury Notification Form [253] signed by the Plaintiff records under the description, "how incident occurred" as follows:- "Working attempted to bend a steel bar with an extension tube. Steel bar, broke free from concrete and worker hit his head with steel tube."
In cross-examination, Mr Tetlow confirmed that was more or less what the Plaintiff had told him. [254] He confirmed that one of his duties were to then look at the accident site in due course. [255] He stated that on inspection there was a starter bar on the floor but he didn't know whether it had anything to do with the accident. [256] He had no recollection of seeing a Ujack because they are used for holding up the formwork and are everywhere. [257] He stated that there was nothing that he found that was inconsistent with what the Plaintiff described to him and that he then wrote down in the abovementioned description. [258]
Mr Tetlow also accepted that there was nothing inconsistent with what the witnesses, Mr Hardanapour and Mr Havari told him that he was able to write down and what he was able to see at the worksite. [259]
Mr Tetlow described that the boss of the steel fixers "Eddie" identified two witnesses to the accident. He said the witnesses gave their statements in the office. [260]
Mr Tetlow stated in his first statement that the metal bars that the Plaintiff was working on, have since been covered in concrete. He stated that U-jacks weight approximately ten kilograms and that the builders were responsible for putting the metal starter bars into the ground and sometimes the starter bars are fixed into the concrete and sometimes they are fixed with Chemset which is an epoxy chemical anchor and it was common practice to use Chemset to fix the starter bars. He stated that the Plaintiff should not have been touching the starter bars as this was the responsibility of the steel fixer. [261]

[15]

Personal Protection Equipment

Mr Tetlow also says that during the induction process, he informed that Plaintiff, "you must wear your hard-hat." He says that this was recorded on the form. [262] The form does in fact record this. [263]
On 9 May 2014, Mr Teltow completed Injury Notification Forms that did not reference the Plaintiff not wearing a hard hat and indicating that no further investigation was required. [264]
Nonetheless in his statement, Mr Tetlow stated that following the accident he asked the Plaintiff if he was wearing a hard-hat and he told him that he was not wearing a hard hat. He stated that he remembered joking with the Plaintiff that this would not have happened if at the time, he was wearing a hard-hat. [265] He stated that at the time, the Plaintiff was wearing a high-visibility shirt or vest and not a shirt with the logo, Dynamic Formwork or Fast Form. [266]
In cross-examination, Mr Tetlow maintained that the Plaintiff told him that he was definitely not wearing a hard-hat. [267] It was suggested to him that he was told that the Plaintiff was wearing his hard-hat but it came off during the course of the impact and the Plaintiff falling backwards. He responded, "no." [268]
Mr Tetlow accepted that there was nothing in the Injury Notification Form about the hard-hat. [269] He also conceded that there was nothing in the other witness injury notification statements about a hard-hat. [270] Further there was nothing in his injury report about the hard-hat either. [271]
Mr Tetlow maintained nonetheless, that when he made his statement, on 22 May 2014, he inserted that the Plaintiff was not wearing a hard-hat because that was what the Plaintiff had told him. [272] He acknowledged Mr Azadian in his witness statement, had mentioned that the Plaintiff was wearing his safety helmet and at the time when he fell down the safety helmet fell off of his head [273] - something that was known to him at the time that he made his statement in August 2017. [274]

[16]

Liability Findings

I am unable to determine the primary source of the information recorded in the induction form of the Plaintiff working for Fast Form Group NSW. It seems to be unlikely that the Plaintiff was aware of the identity of his employer at the time- a factor which may explain why he did not complete that detail in the induction form in the first place. In any event, there is no evidence as to who Fast Form was, although the names bear some similarity with Easyform, which was described as one of the names of the head contractor Dynamic. [275]
Mr Tetlow's evidence about the site not being busy on days subsequent to 5 May 2014 does not correspond with the site diary which shows that there were on site from Easyform on 6 May 2014, ten employees, on 7 May 2014 eight employees and on 8 May 2014, eight employees. [276] Work described by the Plaintiff in his evidence, as having been performed on those days broadly corresponds with what is contained in the site diary. Although on Wednesday, 7 May 2014, the Plaintiff said was raining, the site diary records as fine. Nevertheless, the Plaintiff's evidence was that he worked in the basement and within the basement's ceiling. This is broadly consistent with the description contained in the site diary. He was not challenged as to his account of the work that he did those days.
The Defendant submitted that I would not accept Mr Azadian's evidence. [277]
Mr Azadian's evidence as contained in his statement did not accord with his oral evidence. In his statement he said he had worked with "Eddy Mobani" doing steel fixing from about 2013. In his oral evidence he said that this was the start of his work with Eddy not that he had actually been working for him from that time. [278]
Despite asserting that he was a steel fixer in his statement he said in oral evidence that he was not trained as a steel-fixer, as but rather worked as a labourer.
His claim that he did not have an interpreter when he completed the statement is not consistent with the fact that the statement appears to be witnessed by an interpreter. [279] Despite stating in his statement that he was given an induction by the builder's representative [280] he gave an account at one stage of not having a white card and the induction not being taken seriously. [281] He then stated that he didn't report to the builder. He could not recall the floor he was working on.
It seems somewhat extraordinary that Mr Azadian asserts that he signed two documents on 9 May 2014 where his actual name is not recorded but what he claims to be his signature it. This is particularly so in relation to the tool box talk sign off where the person recorded as the Manager/Presenter is his "Eddy Morabani" who on his evidence would be familiar with him. [282]
No questions were put to Mr Tetlow in cross examination as to Mr Azadian being asked to sign the Injury Notification Form, nor as to the identity of the witness whose name is recorded as Mr Hervari.
Mr Azadian was adamant that he recalled Mr Maneh Hbouss being always present whilst he was there and was there on the morning of the accident. [283] He said he recalled because the boss or builder told Maneh that he needed to sort out the metal bars. [284] This was at variance with the Plaintiff's evidence who stated that Mr Hbouss was not present and that he called Mr Hbouss and was told to "ask Mahmoud," who was the supervisor of the form workers.
In his statement, Mr Azadian said that he knew Maneh from other jobs, [285] however in his oral evidence he said this was his first job he just started working for Eddy [286] and he did not continue after the accident. [287] He added that this was the only occasion he worked as a steel fixer as working with steel and iron was very difficult and that he couldn't keep going [288]
Despite his assertion in his statement about seeing a man cut the metal rods off from the concrete slab, drilling and applying epoxy to the holes [289] in his oral evidence when asked, he stated that the person "kept going back and forward to the office to bring the grinder or anything. He described that person as "doing his own work" and said he himself was mainly focused and concerned in his own jobs. He said of the other person " I was not keeping an eye on him to see what he is doing." [290]
In cross examination Mr Azadian was asked about the person he identified in his statement as performing rectification work being a person he was informed about during the induction process. It was put to him that he did not participate in any site induction with this person and his response was "on the same day he was explaining to us he was there as well." [291] It is difficult to reconcile this response with his earlier evidence regarding the induction process.
Mr Azadian also gave evidence of working with two other steel fixers and being asked by his employer to assist the Plaintiff 10 minutes before the accident when he was ten metres away. Yet the Plaintiff's evidence was that he called out for a steel fixer but there was no-one available.
The Plaintiff's case relies on the evidence of Mr Azadian as to the circumstances of the Defendant's employee cutting the steel rod and epoxying it into a drilled hole. I do not accept that Mr Azadian made such observations. His account was inconsistent and unreliable. He himself acknowledged that his memory of events of 9 May might be vague at this time. [292]
The evidence of Mr Finianos is that he was only on site for two days to pour columns. His oral evidence was that he didn't attend any toolbox meeting and following the accident he was sent home. There is no contemporaneous document confirming his presence. Despite having completed his statement describing himself as a steel fixer he amended this and asserted he was a form worker. He said that when he went to the site he was asked to go to see Maneh although he was not present at the time of the accident. This was contrary to Mr Azadian's account. Contrary to the Plaintiff's account he was unable to identify anyone in charge of the form workers at the time. [293] He claims he was close to the Plaintiff at the time of the accident being three metres away and that the Plaintiff was calling for help shouting "U-Jack" but he told him "No you get it yourself because I am busy." The Plaintiff's evidence was that he was not close at the time of the accident and he had a co-worker.
Despite the evidence of Mr Azadian, Mr Finianos said that he didn't see steel workers. He said he didn't talk to anybody it was a huge project and they didn't have time to meet and talk to each other. He said he didn't count how many people were present on the site saying roughly maybe 15, 50 maybe 55. [294]
Yet despite his assertions of not having time to talk to others he asserted in his statement that the person who cut the rods and glued them in was not a form worker. He conceded that the person was not known to him but the person who put the steel in the hole was the builders' representative or a steel fixer.
Mr Finianos' evidence does not establish the identity of the person he claims was responsible for the cutting of the steel as being an employee of the Defendant although he suggests that it was the builder's responsibility.
Mr Nassif gave evidence prior to Mr Finianos. The latter was not challenged as to the circumstances of his subsequent encounter with the Plaintiff resulting in the Plaintiff informing his solicitors that he could be a witness in the case. Mr Nassif's evidence was that Mr Finianos had never worked for him.
The claim that the Plaintiff was involved in fabrication was not directly put to him when he was recalled and nor were the circumstances further explored.
The Plaintiff submitted that there was a consistent account of the accident from Mr Finianos' evidence, his statement and that of Mr Azadian, his statement and the Plaintiff concerning the facts relevant to this accident and that lends support to what the Plaintiff and Mr Azadian and also to what Mr Teltow said was reported to him. [295]
It is not in issue that the records tendered in Exhibit 8 evidence that Mr Finianos was not present at the time of the accident. Contrary to the Plaintiff's submission Mr Finianos was afforded as opportunity to provide an explanation over the Plaintiff's opposition. Despite being personally served he absented himself without notice to the Court. It is difficult in any event to understand what explanation he could have provided for the fact that immigration records disclosed that he was out of the country at the time of the accident and the Plaintiff did not suggest one. Beyond this his evidence does not evidence basic knowledge of circumstances he would be expected to know had he been present.
In all, I can have no reliance on his evidence of Mr Finianos.
Whilst Dynamic may well have sought to impress the Defendant by the speed of its work, as the Plaintiff indicated, I accept that the pour of concrete was not imminent at the time of the accident and it was for Dynamic to determine the speed and the order of columns to be worked on. I accept that the concrete pour was not scheduled until the following Monday, although the crane was booked to move steel on the day of the accident. I am satisfied that there was no work to be performed on the site on the weekend of the 10th and 11th of May.
I do not accept the Plaintiff's account that the crane was held in mid-air whilst he was attempting to straighten the bar or that he called steel fixers but none was available. I accept Mr Bechara's evidence that such a process would be odd at that point in the construction and that there would be other things that could be attended to while the bar was being fixed. [296]
The Defendant argued that if I did not accept the evidence of the Mr Azadian then there is no evidence produced on behalf of the Plaintiff that Mr Harden being involved in this case or doing anything because I would not rely on Mr Finianos very much in the case.
To an extent, Mr Tetlow's evidence corresponds with that of the Plaintiff who stated that he heard him speaking to one of his labourers and saying words to the effect of, "we don't need these L-bars, they are in the wrong place, remove them."
Mr Tetlow subsequently saw a steel bar on the floor near where the accident had occurred. The injury notification form that was completed specified that "steel bar broke free from the concrete and worker his head with steel tube." Mr Tetlow accepted that there was nothing inconsistent with what the witnesses, Mr Hardanapour and Mr Hervari told him that he was able to write down and what he was able to see at the worksite. In the circumstances, I am satisfied that the steel rod did break away as the Plaintiff described it and documented. [297] Neither party contended that I should not infer the bar breaking away was not positioned prior to the force applied by the Plaintiff.
The question which arises is how did that the repositioning occur. On the basis of the evidence of Mr Teltow and the Plaintiff, I can accept that it was the Defendant's labourer most likely Mr Harden who cut the bar in question. The Plaintiff proceeds further to contend that I should infer that he was also the person responsible for its repositioning arguing that as he was doing the work on the stairs in drilling holes and putting horizontal starter bars in, the similarity of that work makes more than likely that Mr Harden was the one who cut off these bars on the cement floor and replaced them, and replaced them so that one of them was at an oblique angle and that it is that bar that the Plaintiff attempted to extract.
The principles relevant to inferential reasoning were outlined in Seltsam Pty Ltd v McGuiness, by Spigelman CJ [298] That case was favourably cited in State of New South Wales v Fuller-Lyons. [299] Although the factual findings in were reversed on appeal by the High Court, the principles relating to the application of inferential fact-finding were not. [300]
In Henderson v Queensland, Gageler J referred to the principles for drawing inferences stating:- [89] "Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. The threshold requirement for the party bearing the burden of proof to adduce evidence at least to establish some fact which provides the basis for such a further inference was explained by Kitto J in Jones v Dunkel [94]: "One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed." [301]
Although His Honour's decision was a dissenting one, its reference to the relevant principles has not been doubted. [302]
In Jones v Dunkel, Dixon J stated:- It is possible of course to say that if you have an empty diesel truck coming down a winding road on the outside at thirty-five miles per hour and an International truck going up the road on the inside at twenty-five miles per hour, the former is more likely than the latter to be over the centre line of the road on its wrong side. But that is only to say that of two guesses one is more probable than another. It may be remarked that these are not the only two guesses open as to the cause of the accident. But in any case we are not concerned with a choice among rival conjectures. In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that "you need only circumstances raising a more probable inference in favour of what is alleged". But "they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture". These phrases are taken from an unreported judgment of this Court in Bradshaw v. McEwans Pty. Ltd. (Unreported, delivered 27th April 1951). which is referred to in Holloway v. McFeeters [1956] HCA 25; (1956) 94 CLR 470 , by Williams, Webb and Taylor JJ. The passage continues: "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood." (1956) 94 CLR, at pp 480, 481 But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. [303]
The Plaintiff's counsel argued in light of the fact that Mr Harden was not called there is an immensely persuasive Jones v Dunkel inference to be drawn. It was submitted it is was clear that something was done to this cement floor to create the holes in which the bar is said to have been placed and " It wasn't the work of the steel fixers, it was the work of Mr Harden and the Defendant is liable for that work."
The Plaintiff's counsel proceeded to argue … When it came to his statement to the insurance investigator, this was two weeks later or a bit over two weeks later, it is clear that his statement was part of an investigation. The fact that his statement was part of a workers' compensation file which was tendered your Honour can infer that it was a workers' compensation investigation. But it is clear that there was an investigation. His statement of May 2014 says that. So somebody investigated this. There's nothing in the workers' compensation file your Honour can accept although it's an exhibit I believe, your Honour can check through it, or if it's not an exhibit the parties have had access to it. If I'm wrong in this Mr Cavanagh will say in reply that I'm wrong but I could find no record of an investigation as to who put this steel bar into the concrete. Presumably there were people on site who could have added to the knowledge or information about this. The defendant presumably, because the investigation was said to be the Human Resources Team of the defendant; that material would be available to the defendant. It should have or could have included asking the steel fixers who were there what happened. Did anybody see this. If Azadian is correct then his boss who had said to him, "Go and help him", must have seen the incident. Or the lead up to it. No evidence about that at all in circumstances where it is said it was investigated but nothing came of it. The defendant had the resources. It supervised all the people on this site in a general sense. It knew who these people were; it knew who the subcontractors were, Maneh Hbouss and this other fellow Edi, the boss of the steel fixers. It knew the existence of these people but we have no information. So any inference favourable to the plaintiff ought be drawn and these are inferences which are quite contrary to the submissions advanced by Mr Cavanagh saying that you couldn't accept that this accident happened in this matter that gives that causes liability to the defendant. [304]
Whilst the rule in Jones v Dunkel entitles the trier to more readily take into account whether to accept particular evidence which relates to a matter on which an absent witness could have spoken I am unable in the circumstances to accept Mr Azadian's evidence for the reasons indicated.
In any event, according to the Plaintiff Mr Hbouss was not present. In cross examination, Mr Tetlow stated that he asked for witnesses in the Plaintiff's presence and Eddie advised Mr Hadi Hardanipour and Mohammad Hervari. [305] There was nothing put to suggest that at that time there were other witnesses let alone that these persons were in the Defendant's camp.
It could be accepted that in the context of what was occurring on site that day Mr Harden would have been aware the request to remove the L bars was to facilitate the placement of the steel cages. If so there is an oddity in the Defendant's labourer cutting the bar and then repositioning so it ends up at an oblique angle. The evidence of Mr Teltow is that it would be a useless thing to do and he would not have the tools in light of the size of the bars which were 25-32 millimetres, in particular the core drill required which the Defendant did not possess. He stated that there would be no purpose to drill a starter and filling it with epoxy as it was not needed to show where the column was to be poured because the mickey pins do that and could not be connected to the reinforcing of the slab or footing so it would hence not perform its function in accordance with the engineering design
Mr Tetlow conceded that he did not know whether Mr Harden did or did not attempt to do it but it was pointless and he had never instructed him to do it and had never seen him do it. Mr Bechara's evidence was that this would only be done if there were structural requirements. None were identified.
The Plaintiff referred critically in its submissions to the evidence of Mr Teltow and what was described as treatment of this accident with some disdain and his attempts to minimise the Plaintiff's injuries. [306] Nevertheless it did not challenge the accuracy of Mr Teltow's evidence on these matters.
At best contentions based on work Mr Harden performing elsewhere on the site and the tools available in the Defendant's shed amounts to conjecture. This is particularly so where there was no evidence that this task was instructed, the correct equiptment was not available to the Defendant and the repositioning of the bars was described as useless. Mr Harden was described as a labourer of 20 years. There were other workers working on the site and the Defendant's contact with Dynamic tasked it to "secure to forms as required or set for embedment as required, all miscellaneous metal items, sleeves, anchor bolts, inserts and other items furnished under other specifications and required to be cast in the concrete."
In my view, there is no evidence that I can accept that it was the Defendant's labourer who was responsible and no primary facts from which an inference to this end can be drawn.
In the circumstances, I am not satisfied that the repositioning of the bar in question was an act brought about by the Defendant's employee.
Whilst the Defendant accepted that an accident occurred, it submitted that I would be satisfied that the Plaintiff was not wearing a hard hat at the time of its occurrence based on the evidence of Mr Tetlow.
The Plaintiff was emphatic that he was wearing a hard hat at the time of undertaking the works with the U-jack, but that it became displaced during the accident. He denied any conversation with Mr Tetlow as asserted by him.
Whilst I have noted that tool box talk meetings were scheduled on the day of the accident to discuss personal protective equipment they do not specifically raise the question of what is said to have occurred involving the Plaintiff. [307] Beyond that, the Induction Form indicates that tool box talk meetings were to take place daily prestart and fortnightly. Even if the meetings were scheduled subsequently the fact that tool box talk meetings were held does not support an inference that it is more likely to follow a failure on the Plaintiff's part to wear a hard hat as opposed to a hard hat falling off. Mr Tetlow made no references to the helmet in Injury Notification Forms and nor did the listed witnesses.
In clinical notes of the Westmead Hospital of 9 May 2014, there is reference to a recording referable to the Plaintiff who "states [that he] was wearing a helmet but it was pushed off by a pole." [308]
On balance, I am inclined to accept the Plaintiff's evidence on this issue.

[17]

Conclusions on Liability

The Plaintiff pleaded breaches of various statutory duties it neither opened its case nor submitted on such a basis. The case advanced was one in negligence.
The principles governing the liability of a head contractor such as the Defendant to subcontractors and others coming onto a construction site within its control were set out by the High Court in Leighton Contractors Pty ltd v Fox and Calliden Insurance Ltd v Fox. [309]
In opening, the Plaintiff outlined its case as one where the Defendant through Mr Harden removed the starter bars set in concrete and drilled holes for them to be replaced at another position. It argued that Chemset was applied and the Defendant failed in its general duty of care to all those on the work site whom might come into contact with that misaligned starter bar. [310] Senior Counsel for the Plaintiff opened the case as follows:- "Factually, the plaintiff will tell your Honour that he overheard a person, I don't think it's in any dispute, Andrew Tetlow, the site foreman employed by the defendant tell one of his labourers, also an employee of the defendant, I think they're referred to as Dennis, and Loui. They're referred to as such in the site diaries your Honour will see in due course, and there's no issue that they were employees of the defendant. Anyway, Tetlow had said to one of his employees to move one of the columns of L bars protruding from the cement. One can infer they were in the wrong place. The plaintiff thought nothing of that. It was just a casual observation. It was none of his business. He was a formworker and not a steelworker. He did see one of those men or there will be evidence that one of those men went to the foremen's shed and returned with an angle grinder and used that implement to cut the vertical part of the starter bars off at the concrete level. He then got a drill and drilled new holes some centimetres away and then, into those holes, applied an epoxy mixture, a quick acting adhesive called Chemset into the holes, into which he then replaced the sawn off part of the starter bars into those holes. The plaintiff didn't see that part." [311]
The Plaintiff's Senior Counsel proceeded:- "Your Honour will find, we feel, that the offending starter bar was one of those that had been repositioned earlier that day at the direction of Andrew Tetlow and the plaintiff was unaware of this fact at the time he went to straighten the bent bar. The plaintiff's case is he should have been warned by the builder. Either the hole drilled by the defendant's labourer was not of sufficient depth or insufficient Chemset had been applied, or insufficient time had been allowed for the Chemset to set. Either way, he should have been warned. That said, our case is that the builder was negligent in an even more fundamental regard. The builder should not have left the start bar in such a position, that is at an angle from the vertical, in the circumstances where the lowering of the cage was anticipated. As I said, there was urgency surrounding the plaintiff's involvement. The crane was lowering the steel cage, hovering aloft, just above where it was intended to be lowered." [312]
In written submissions, the Plaintiff submitted that for the steel bar to have been placed in the manner described by the Plaintiff and Mr Azadian meant that someone (whether it be the steel fixers or Mr Harden) put the steel bar in the concrete in a manner which was negligent [313] and it was the duty of the Defendant to require it to be rectified.
In oral submissions, the Plaintiff maintained that the accident occurred in the manner described in its opening being that it was the Defendant's labourer that was responsible. It did not assert there was responsibility if the work was done by an independent contractor or a steelworker. Nor did the Plaintiff seek to identify how if the steel fixers were responsible, the Defendant was responsible. The submission advanced was as follows:- "… could I say as far as liability is concerned, we maintain the way we opened the case, that the accident happened in that manner. And if it happened in that manner, it is the responsibility of the defendant. Your Honour heard the evidence of Mr Bechara and Mr Tetlow. It is clear that the defendant had responsibility. It is more than likely your Honour would find that Mr Harden was the one who used the angle grinder to cut off these bars. It's more than likely that he used the drill, such as it was that he had, to drill some holes and applied the Chemset into them. It's more than likely that in so doing he either didn't drill the hole deep enough or wide enough and it's more than likely that the Chemset was insufficient. Now it is clear that the defendant had these tools in his possession in the shed where Mr Azadian said he saw the labourer, who he didn't identify, just called him the labourer, get it. Now your Honour hasn't heard from Mr Harden the labourer. He was the one that it is said, we submit, was doing the work on the stairs. Drilling holes and putting horizontal starter bars in. Given the similarity of that work and what has clearly happened in this case, it is more than likely that Mr Harden was the one who cut off these bars on the cement floor and replaced them, and replaced them so that one of them was at an oblique angle. And it is that bar that the plaintiff attempted to extract. The work was done negligently, it was done inefficiently and that is the work conducted by the defendant's employee for whom the defendant is vicariously liable. The defendant is liable for not only that work being done in a negligent fashion, but failing to see that it was done by its own employee in a negligent fashion. Mr Tetlow had the responsibility to see that it was done, not the work of independent contractors, not the work of steelworkers, but work of his own employee. Mr Tetlow said yesterday, this is at p 568, he is asked at the top of the page: "I assume that...anyway, but yeah." And he agrees that would be an incredibly useless thing to do on Dennis's part and it wouldn't provide any support. That's his witness. That's the defendant's employee." [314]
To the extent that the Plaintiff's case rested on a negligent positive act it is arguable as to whether s 5B of the Civil Liability Act 2002 [315] applies. However, I will proceed on the basis that it does, so as to avoid the consequence referred to in Caruana v Darouti. [316]
In Lee v Wickham Freight Lines Pty Ltd, Basten JA stated:- [15] The starting point for any legal analysis must be the basic proposition that the general law does not impose on a principal vicarious liability for the acts of its subcontractor. Nor did the appellant assert that Wickham was in any sense liable for the negligence of WBH. Further, generally, the law does not impose on the principal a duty of care with respect to the employees of its subcontractor.[2] There may, however, be particular circumstances in which the principal does owe a duty of care to an employee of a subcontractor; it is not, however, to be equated with the duty of care owed by the employer.[3] As further explained by the High Court in Stevens, in a passage adopted in Leighton Contractors Pty Ltd v Fox:[4] "The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur." [16] The trial judge adopted in his reasoning a passage from the reasoning of this Court in Bostik Australia Pty Ltd v Liddiard[5] to the following effect: "The fact that an employer may be obliged to take reasonable steps to provide a worker with a safe system of work, does not preclude the existence of a duty owed by others to take reasonable care in their dealings with the worker, whether they be other employees, independent contractors, the occupier of premises which the worker is required to attend in the course of employment or other road users encountered in the course of travel. Where work is undertaken on the premises of a third party, that party may have a duty, which commonly arises from: (a) the degree of control or direction exercised or which the third party is entitled to exercise over the worker; (b) the condition of plant or premises under the control of the third party, or (c) the activities of others on the site, generally for the purposes of the third party's undertaking or business." [17] In Sydney Water Corporation v Abramovic[6] the Court considered the liability of Sydney Water for the injury suffered by an employee of an independent contractor as a result of inhaling silica dust in the course of his work. A number of potentially relevant factors, none of which was necessarily determinative, was identified in that context:[7] "(a) the principal directs the manner of performance of the work; (b) the work requires the coordination of the activities of different contractors; (c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge; (d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so; (e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so." [317]
Relevantly in the instant case there was no exercise of control of the workers asserted other than Mr Harden. The activities of others (in particular Mr Harden in removing the bar and the crane operator) were in my view collateral to the creation of the risk that created the harm.
In terms of s 5B of the 2002 Act, I am required to identify the risk of harm in accordance with the principles of Uniting Church in Australia Property trust (NSW) v Miller. [318] The Defendant submitted:- "It wasn't suggested to Mr Tetlow that he had to be there, nor could it have been. It wasn't suggested to Mr Tetlow that he knew of a problem with the starter bar, nor could it have been. It wasn't suggested he had to be there supervising, nor could it have been. So what is the case? It can only be that Dennis the labourer did something and did it badly. Your Honour will have to make findings under s 5B of the Civil Liability Act that the accident was foreseeable. What was the risk of harm? The risk of harm presumably is that if the plaintiff was asked to pull out a starter bar, which he wasn't, he wasn't a steel fixer. He wasn't asked to do that. If he was asked by my client, that is, that we should have foreseen he might do something he wasn't asked or trained to do in circumstances where someone else had done something badly, and apparently he wasn't wearing a hard hat. We had to foresee that as well." [319]
In Perisher Blue Pty Ltd v Nair-Smith the NSW Court of Appeal stated that:- "Generally, it is as unnecessary as it is undesirable to define the relevant risk with this level of particularity. Particularity is called for in the present case because several risks attend the process of boarding a chairlift and unless the relevant risk is identified with sufficient precision one cannot determine what, if any, reasonable precautions ought to have been taken in order to avert it." [320]
In my view, the risk of harm is that of a worker on a worksite when forming columns being injured when attempting to straighten an unbeknown inadequately supported starter bar inserted by another worker. [321]
I am not satisfied that the Defendant knew or ought to have known of the starter bar being reinserted as alleged and nor do I accept the Plaintiff's account that the crane was held in mid-air whilst he was attempting to straighten the bar or that he called steel fixers but none was available.
In the circumstances of the Plaintiff seeking to move a starter bar for which he was not trained or asked to do and where the alleged failure was neither known by could be anticipated I do not accept that the risk was foreseeable and not insignificant. [322]
Even if I were to accept the probability that harm would occur if care is not taken and the likely seriousness of the harm were high, I do not accept that a reasonable person in the Defendant's position in circumstances of contracting of an independent contractor to carry out steel fixing and form work would take precautions against the risk arising bearing in mind its responsibilities. [323]
I am not satisfied that breach of duty has been demonstrated and it follows that the Plaintiff's action must fail.
In the event that I am wrong, I proceed to consider the question of damages.

[18]

Pre Accident

The Plaintiff gave evidence that prior to the accident; he was fit and well and not restricted by any physical injuries in the performance of his work duties or household tasks. [324] He stated that he had not suffered any injuries or major illness nor treated for any emotional disorders. Although he described his work as a form worker, as physically hard, he said that he had no difficulties or restrictions with that work before 9 May 2014. [325]
Tendered in the proceedings was a report from Leena Kothari, Audiologist dated 5 June 2013 referring the Plaintiff to Dr Selim. The report attached a audiogram described as showing severe sloping to profound sensorineural and permanent hearing loss in both ears with residual hearing at low frequencies with no hearing recorded at high frequencies. Ms Kothari stated that otoscopy showed clear canal and normal appearance of tympanic membranes bilaterally. [326]
The clinical notes of Dr Bishay of 24 February 2014 record that the Plaintiff suffered" bilateral severe SN deafness/tinnitus." [327]
Subsequent to the accident the Plaintiff was seen by Dr Phillip Yeung, Ear Nose and Throat Surgeon on 25 July 2014 at the request of Dr Al-Shelh. Dr Yeung referred to a history of the accident, deafness, non-localising tinnitus and dizziness. He noted no observable nystagmus and on Romberg's, the Plaintiff demonstrated an exaggerated self-correcting sway. He also observed the Plaintiff bending over to pick up his son and regaining an upright posture with no evidence of unsteadiness. Dr Yeung organised audiology and a full battery of balance testing. [328]
An audiology report from Mitchell Davies dated 2 September 2014, reported that he was referred for audiological assessment and vestibular testing following persistent episodes of dizziness and nausea following recent head injury. In conclusion, it stated:- "The audiogram shows a mild sloping to profound sensorineural hearing loss in the right ear and a moderate sloping to profound sensorineural hearing loss in the left ear. It must be noted that Mr Kadoor El Khier's case history and apparent communication ability is not consistent with the audiogram and responses may be suprathreshold. Objective measures however do indicate a significant moderate degree or worse hearing loss in both ears and communication was poorer without visual cues available. A repeat audiology assessment is recommended to confirm today's results. Additionally an ABR assessment would be recommended however in view of the objective indications of a significant peripheral loss the clinical value may be limited." [329]
A further report of Samantha Rattos, dated 25 March 2015, obtained a history of no trauma to the Plaintiff's head or ears prior to the injury on the 9 May 2014, no ear infections no surgery to his head or ears, no facial numbness, no ear pain and no family history of congenital hearing loss. The audiometry found moderate to severe hearing loss. [330]
The Plaintiff evidence in chief stated that he was trying to be half the man he was before the accident and he lost his body and hearing. [331]
The Plaintiff made a concession through his Counsel that he did not tell the truth about the fact that he had no hearing impairments prior to the accident. [332]
Notwithstanding this, for reasons given [333] I allowed the Plaintiff to be recalled for cross examination regarding suffering hearing loss and tinnitus ringing in his ear before the accident. When asked as to whether he had hearing loss and tinnitus before the accident he responded that he did not get dizzy before the accident. When asked if he was accepting he had hearing loss he said he could not remember hearing loss. When asked if he accepted that he had ringing in the ears before the accident he responded, "Did I say that to you?" [334]
The Defendant submitted the Plaintiff clearly had both tinnitus and hearing loss before the accident and the concession made was to avoid the Plaintiff being asked questions. The Plaintiff's counsel submitted:- "The second piece of evidence that is damning to his credit is his assertion to perhaps all doctors that following this accident he developed deafness, leave aside tinnitus, because that doesn't appear to be part of the pre accident history and he has readily conceded that was false. It's not a big part in this case but it could be understood in the nature of an unsophisticated person that it's all the same and for all intents and purposes the tinnitus and the deafness are all linked together and he didn't have the tinnitus before, he has it after the accident, it may not be entirely satisfactory but it appears on the material, the doctors' reports, that that was the case." [335]
The Plaintiff had advanced a case that his hearing and tinnitus were consequent of the accident. Both were mentioned in the notes of Dr Bishay of 24 February 2014. The Plaintiff had an earlier audiological report dated 5 June 2013 from Leena Kothari. The report of Dr Yeung identified inconsistency in the Plaintiff's presentation particularly as to his unsteadiness. When the Plaintiff was recalled he was evasive as to his previous history of hearing loss and tinnitus. I am satisfied that these complaints do not arise from the subject accident and the Plaintiff's initial claims to the contrary and subsequent evasion undermine his credibility.

[20]

Andrew Tetlow

Mr Tetlow stated that on 9 May 2014, he arrived at the Gladesville site sometime between 6:30am and 7:00am and was informed at 9:45am by a worker, that another worker had hit himself on the head. [336] He stated that he walked over to the lunch shed and saw the Plaintiff sitting and holding something onto his head which he thought was toilet paper. He observed that no blood was coming from his head or face. He then asked him to remove the toilet paper and there were a few dots of blood on the toilet paper. He said he had to move closer to see the mark on the Plaintiff's head. He then saw a minor cut that was not bleeding and was three or four centimetres in length. He asked the Plaintiff to put his hands on either side of the cut to see if it was open and it was not open nor was it bleeding. He noticed that there was a small bump, local to the cut. He states that no first aid was completed as there was nothing that needed to be done. He described the injury as very minor. [337]
Mr Tetlow was questioned in relation to the fact that on the Injury Notification Form, [338] he recorded "no loss of blood." He recorded in his statement, [339] "a few drops of blood on the paper." When questioned, he stated that there "were two tiny spots of blood." One probably a millimetre and a half across and the other one, a maximum of 5 millimetres across." [340] He stated that he did not consider that a loss of blood [341] He accepted that with his head being hit with a steel bar and the manner of the Plaintiff following the damage being occasioned was what he would expect. [342]
Mr Tetlow stated that he did read back to the Plaintiff, the description of the injury that he recorded in the Injury Notification Form being:- "… to the head, caused a small 3-4cm cut shallow in depth and some localised swelling no loss of blood." [343]
Mr Tetlow confirmed in cross-examination that he asked the Plaintiff to put his hands on his head to show whether the cut was an open wound or not. He stated that it was not an open wound but rather a little cut. [344] When pressed, he accepted that the little cut was an open wound. [345]
In his statement of 22 May 2014, Mr Tetlow stated that he asked the Plaintiff what he wanted to do and it was agreed that he should go to the hospital "just in case." He says that the Plaintiff told him that he would go to the hospital. He stated in his evidence that this was normal practice where an accident occurs even though it may only be slight. [346] He further states that he contacted Mr Maneh Hbouss and told him what had happened. He stated that he did this because Mr Hbouss was the main contractor, even though he had written on the induction form that the Plaintiff worked for Fast Form, who were the main contractors, they bring in sub-contractors like a chain of command. [347]
Mr Tetlow stated that the Plaintiff made no complaints at the time of "severe pain in his head, neck pain, dizziness or buzzing in his right ear." [348]

[21]

Mariah Adams

The Plaintiff's wife, Ms Mariah Adams stated that she received a telephone call from the Plaintiff at around 10:30am when he informed her that he had been injured and was coming home. [349] She then arranged to come home. [350] She stated that she was waiting for the Plaintiff outside the apartment on the porch and half an hour later she saw the Plaintiff in his car with someone driving and pulling into the driveway. [351] She said that he arrived at approximately 11:00am. [352] At that time, she said he had a cloth on his head, did not get out of the car and the person driving got out of the car to open the door. [353] She stated that the cloth was full of blood. [354] She stated that as he got out of the car, he was walking towards the house but not properly and his balance was not proper. [355] She stated that his friend was holding him as he came towards her. [356]
As he came towards her, Ms Adams said that she complained about the fact that an ambulance had not been called and why he was not taken to the hospital. The person who was with him told her that he was following "Maneh's" orders. [357] She then put the Plaintiff in her car, took her son and drove him to her mother's house and then went straight to the hospital. [358] She stated that whilst she was driving the Plaintiff to the hospital, she observed that he was dizzy, and was not himself and was not speaking. [359] She stated that the Plaintiff complained of pain and dizziness and that his back was killing him. [360] She stated that when she got to the hospital, a nurse came and took the Plaintiff to clean the blood from his head and that she was the translator. [361] She stated that she told the nurses that the Plaintiff was injured, complaining that his head was in pain, of dizziness and that his back and neck were in pain. [362] She remained at the hospital for 5-6 hours before driving the Plaintiff home. [363] Hospital staff gave her a pamphlet for concussion and told her that if something was to happen to call a number. [364]
When the Plaintiff came home, Ms Adams stated that the Plaintiff was complaining about his pain and went straight to his room to sleep, after bringing him some food and assisting him to the bathroom. She described him sleeping until the next day. [365]
The following day (being 10 May 2014), Ms Adams stated that the Plaintiff complained about pain, dizziness, his head killing him, and his back hurting and that he could not handle the pain in his neck. [366] Consequently she said she drove him to doctor who informed her that he needed 6 to 8 weeks of recovery and rest. [367] This was Dr Bishay at the Universal Health Clinic in Merrylands. [368] In cross examination, Ms Adams stated that she went to the doctor because the Plaintiff fell in the shower and Dr Bishay stated that he just needed bed rest and the Plaintiff did not want to see him again. [369]

[22]

Contact with Mr Hbouss

The Plaintiff rejected the suggestion that he contacted Mr Hbouss on the day of the accident before he had been to hospital and said that he was fine. [370] He further rejected telling him that he needed a few days and the he would be okay. [371]
The Plaintiff rejected the suggestion that he contacted Mr Hbouss the following Monday (being 14 May 2014) and told him that he would come back to work on the Tuesday. [372]
On 13 May 2014 the Plaintiff with his wife went to Granville site to obtain the incident report and induction papers from Mr Tetlow. [373] The Plaintiff conceded that he went to the site a few days after the accident with his wife, [374] and that he asked his wife to go outside and speak to Mr Tetlow about getting forms such as the safety induction form. [375] He stated that he did this because he called Mr Hbouss, but he did not return his call. [376] He conceded that he had a bandage around his head at the time and said that he had that put on him at the hospital and was told to keep it on for a while so that it could heal. [377]
Ms Adams accepted that she visited the work site on 13 May 2014 to get induction papers and the incident report and spoke to Mr Tetlow following speaking to a solicitor. [378]
There was no suggestion that either the Plaintiff or Ms Adams had indicated or that Mr Tetlow understood that were proceedings against the Defendant were proposed at that time. Moreover there were no questions asked of Mr Tetlow or Mr Bechara in this regard.
The Defendant produced no evidence of the Plaintiff's calling Mr Hbouss either on 9 May or 13 May 2014 asserting that the Plaintiff was intending to return to work after "a few days' or on the 14 May 2014. The first assertion was timed before the Plaintiff went to hospital and sits oddly with Mr Teltow's evidence that the Plaintiff himself requested to go to the hospital. The second assertion sits oddly with the Plaintiff attending the worksite with his wife on 14 May 2014, (having not been able to contact Mr Hbouss) and seeing Dr Bishay on the 10 May 2014.

[23]

Plaintiff's Complaints

The Plaintiff gave evidence that since the accident he had difficulty sleeping due to his sore neck and pain. He says he feels bad and tired, waking early at around 3 or 4 o'clock. .He said that he had taken antidepressants however they did not make him feel better, they make him relax, do nothing but stay all day on the couch. He said physiotherapy did not help but the psychologist Sana Zaarour did but only as long as the medication lasted. Then he said he took too much medication and he didn't think it helped him as he did not get any better. [379] He said that he didn't have any other paid employment and he felt very bad as he said he felt he could do nothing and was living a nobody having lost his hearing, his head, his neck. He stated that he previously could lift 140 kg, but now maybe could lift 10 kgs. [380]
In cross examination, the Plaintiff stated that there had been no improvement in his condition since 2014. [381]
At the time of giving her evidence on 24 August 2017, Ms Adams resided with the Plaintiff with five children; three from a previous relationship and two with the Plaintiff. She stated from January 2012 until she became pregnant with a fourth child, she was working at her cousin's shop as a hairdresser's assistant, part time and through that work, she met the Plaintiff. Thereafter, they started dating. [382] She stated when she first met him, she introduced the Plaintiff to her daughters and the Plaintiff was "amazing with them." [383] In September 2012, she stated that the Plaintiff moved in with her in her apartment at Merrylands. [384] She described the relationship as very good, akin to a family unit. In 2013, she moved to her residence at Greystanes. [385] Apart from her children, she stated that she had her social life which consisted of going to parties, movies, dinners and "everything that [she] could get a chance to do." [386]
Ms Adams stated that for the first 3 weeks following the accident, she did not observe any improvement in the Plaintiff's condition. [387] He would either be on the lounge or in his room sleeping. [388] She stated that she would do everything for him in the same way as she did when he arrived back for hospital, [389] including assisting in the bathroom by holding his arm over her shoulder, assisting with bathing and making food. [390] She stated that she did this for approximately 2-3 months and would take him to medical appointments and translate. [391] She stated after a few months, the Plaintiff was able to go into the shower and walk into the bathroom, but not all of the time; sometimes she would have to go in and help him - perhaps once a week, sometimes twice. [392] She stated the reason for this was because he got dizzy and lost his balance. [393]
Ms Adams stated that since the accident, the Plaintiff has complained of pain from time to time in the neck, lower back, his leg and numbness in his hands as well as dizziness and frequent headaches. Some days she described were better than others. [394] She stated that she had observed the Plaintiff driving and that it depends on how he is feeling. [395] Before the accident, she said the Plaintiff did not complain of having suffered pain in the areas that she described. [396] In terms of his overall demeanour, and her relationship, she stated that the Plaintiff had changed and that he was not the same person. [397] She added that his change was in every way; he was never happy, always angry and was always in pain. [398] Ms Adams said he was not like that before the accident and instead was a loving, caring and happy person. [399] She said that since the accident, one minute he will go crazy and the next minute, he will be calm and that depends on how much he is actually hurt and in pain.
Ms Adams stated that when she referred to "go crazy" she meant that he started yelling, screaming and his eyes would flair up. [400] She acknowledged that the Plaintiff and her had a boy in June 2015 and stated that his reaction was not a happy one. When she was pregnant, the Plaintiff went crazy and did not want her to have the child and this was different to when her older son was born. [401] She stated that she struggled to look after five children and her relationship had been impacted on but she was able to get assistance from her mother. [402] She stated that the Plaintiff does not interact with the children or take them on excursions. [403] However Ms Adams stated that when the Plaintiff worked with Edessa, [404] she observed that he was happy, that he was able or trying to work, but would still come home and say that he was in pain. [405]
Ms Adams stated that she had observed that the Plaintiff's dizziness was a little bit better since the accident and that the headaches were also a little bit better. [406] She stated that he had not been looking for work, and had not been doing any work since stopping with Edessa. [407] Particularly that he was not working in 2016. [408] She stated that when he worked for Edessa, he had undertaken the injections which was the difference that enabled him to start work in January [409] and if he did the injections and it worked, he would be able to do some work. [410] She stated that in 2016 and 2017, the Plaintiff was suffering from dizziness depending on how he woke up in the morning. [411]
According to Ms Adams' observations, in late 2016 and early 2017, the Plaintiff was not able to do anything around the house, never did housework, did not cook (though he could make himself a cheese sandwich in the morning for breakfast). [412] She conceded that the Plaintiff drives a car and did drive regularly to the doctors, his cousin and maybe to get some breakfast if he was hungry. [413] Though she did recall going to Melbourne at the end of 2015, beginning of 2016, she stated that the Plaintiff did not travel with her and her children. [414]
Ms Adams said that prior to the accident, the Plaintiff would do the gardening including cleaning of the pool. [415] She stated that prior to the accident, the Plaintiff would pay his own bills, but after the accident, she would pay the bills. [416]

[24]

Plaintiff's Treatment

The discharge summary [417] from Westmead Hospital. noted that following the accident, the Plaintiff had complained of headaches, but nil nausea or vomiting. It noted a laceration to his mid-parietal, which was 4 cm, mild tendency to both maxilla crepitus, mid line C-spine tenderness. No fractures were detected. Nil active bleeding was noted but a compression bandage applied. [418] The Plaintiff was given analgesia and slow intravenous fluid and he had his CT brain, C-spine and facial bones which showed nil intracranial bleed/fractures. He was recorded as being "haemodynamically stable, eating and drinking and mobilising well with nil concerns.' [419]
On 15 May 2014, the Plaintiff saw his general practitioner, Dr Ghayath Al-Shelh, concerning his injuries. He noted that the Plaintiff was still dizzy since Thursday, and had severe neck pain but numbness towards both shoulders and arms, with restricted mobility of the cervical spine in all directions with pain. He was referred for a CT scan of the skull and the cervical spine and prescribed Keflex. [420]
On 15 May 2014, Dr Patrick Luckey reported in respect of the CT scan. No abnormity was noted in relation to the CT scan of the brain. In respect of the CT scan of the cervical spine, Dr Luckey reported:- "There is early anterior and posterior osteophyte formation, disc narrowing and broad-based dorsal disc bulging at C5-6, causing early flattening of the thecal sac without nervous impingement. There is early profile broad based dorsal disc protrusion at C6-7 causing early flattening of the thecal sac on the left and potential compromise of the existing C7 nerve route." [421]
On 16 May 2014, the Plaintiff saw Dr Al-Shelh. He noted that the Plaintiff was better but still had left radiculopathy. He noted that the neck restriction was better and front chest pain was coming down from both shoulder weakness. Valium Feldene was prescribed. [422] The Plaintiff was also referred to Professor James Van Gelder, neurosurgeon and spine surgeon and Mr Mustafa Moutsallem, physiotherapist.
On 20 May 2014, the Plaintiff presented for Physiotherapy. Mr Moutsallem recorded immediate complaint of pain to the cervical spine, dizziness and blurred vision. He recorded the blurred vision was intermittent and the dizziness and ringing in the ear was noted with increased cervical spine pain and movement. He also recorded constant lumbar spine pain described as a constant dull ache with a pain rating of 7/10 and intermittent numbness radiating down the left buttock and down the left leg. The report of noted that Mr Moutsallem advised on injury and injury self-management with a home based exercise program. Mr Moutsallem sought approval from the insurer to commence physiotherapy. [423]
On 27 May 2014 Dr Al Shelh noted the Plaintiff also had lower back pain since the fall but did not complain and did not feel as the major neck and back pain was masking. [424] He also noted the Plaintiff was suffering distress and anxiety.
On 28 June 2014, Ms Adams confirmed that she called the ambulance. [425] She stated that the Plaintiff got dizzy but she does not remember everything. [426] In particular, she stated that she does not remember whether it happened in the morning or afternoon or what she was doing, though she does recall being at home. [427] She recalled that she was home when the ambulance arrived the Plaintiff was in the lounge room. [428] She stated that she does not remember the Plaintiff was as it was long time ago. [429] She stated that she does not remember the Plaintiff lying on the floor or the lounge. [430] She stated that the Plaintiff was effected by dizziness, couldn't move and lost balance. She could not recall whether the Plaintiff had been with a friend immediately before calling the ambulance. [431] It was put to Ms Adams that the incident in 2014 was made up for the purposes of the case. She rejected this. She also rejected the suggestion that the Plaintiff did not suffer from dizziness requiring him to lay on the floor. [432] She reiterated that he has suffered from dizziness since 2014 and was not aware of what the requirements of work would be that he undertook in 2017. [433]
The clinical from Westmead Hospital recorded that the Plaintiff was ambulant but complaining of headaches and dizziness. [434] He was treated with a cervical collar and morphine and maxalon. Nil injuries were noted to the upper limbs and all movements were recorded as being intact. Nil back pain was recorded and on examination, nil injuries were noted to the back and nil tenderness to the thoracic and lumbar sacral spine. Pain and tenderness was noted on the mid cervical spine. The clinical notes record bilateral tinnitus and sudden onset of vertigo spinning. [435] He was discharged the same date and advised not to drive and consider using a walking aid if feeling unsteady on his feet.
On 12 June 2014, the Plaintiff was seen by Dr James Van Gelder, neurosurgeon. He noted no neurological signs and stated that the plaintiff would benefit from counselling about his condition. He stated the Plaintiff may require anti-depressants and the symptoms may take months to resolve. According to Dr James Van Gelder, the Plaintiff would benefit from rehabilitation and recommended that he be seen by Dr Steven Ng, consultant physician, occupational and muscular skeletal medicines.
On 22 July 2014, Mr Moutsallem noted that 8 sessions had been conducted of Physiotherapy. He recorded symptoms of constant pain the cervical spine, pain and numbness radiating down the left arm and constant headaches and dizziness. Approval was sought for further physiotherapy of 2 sessions per week for 4 weeks. [436]
The Plaintiff saw Dr Ng as a private patient whilst being assessed by GIO on 23 July 2014 [437] and subsequent to approval on 17 September 2014. He noted complaints of dizziness and pressure in head, tinnitus, subjective hearing loss, vertigo, headache, widespread neck, chest wall and lower back pain with reported spasm of the left leg but not true radicular pain to both upper and lower limbs. 'Dr Ng recommended Norflex for spasm pain in the neck and lower back, an MRI of the lumbar and a change in medication of Avanza to Duloxetine. He recommended neuropsychological assessment and referred the Plaintiff to Dr Henry Lam, pain medicine specialist at the Sydney Spine Institute. He found the Plaintiff unfit to work or attempt to return to work until his post-concussion improves and stabilises, which may take 3 to 6 months to settle. [438]
On 29 July 2014, the Plaintiff was seen by Dr Andrew Duggins Staff Specialist at Westmead Rapid Access Neurology Clinic who observed that possible ongoing symptoms were due to mild traumatic brain injury [439] A routine EEG was carried out on 29 July 2014 and found to be within normal limits. [440]
On 9 September 2014 Dr Al Shelth noted that the Plaintiff's complaints were still the same in terms of upper back and lower neck pain. [441]
On 21 October 2014, the Plaintiff was reviewed by Dr James Van Gelder, who opined:- "Mr Kaldor may have dizziness and headaches associated with his nonspecific neck ache. He does not have any indications for contemplating neurosurgical treatment or interventions like injections. I could not offer any important treatment suggestions with his dizziness and neck ache. He should manage these conditions symptomatically and using active treatments rather than passive physiotherapy treatments like acupuncture and massage. I have referred him for further imaging." [442]
On 5 November 2014, the Plaintiff was again reviewed by Dr Val Gelder, who reported:- "Mr Kaldor El Kheir is disabled by multiple symptoms after his accident. From a neurosurgical perspective, the symptoms in the cervical spine seemed disproportionate to the relatively minor spondylitic changes. I have recommended that he would be suitable for multidisciplinary treatment for his condition to try and address his psychological distress, to try and control his pain, to try and address his expectations about his condition and to assist him with his pain management and practical strategies to try to improve his symptoms. One option for treatment would be to have surgery at the C5-6 level for his cervical spine. He does have symptoms that radiate down into his arms and sensory symptoms that follow C6 distribution. It is difficult to predict the benefit he would obtain, but it would be unfortunate if he was denied an effective strategy given the severity of his symptoms. I recommended that he pursue conservative treatments for the time being and I will be happy to continue to review and reassess his condition." [443]
On 26 November 2014, the Plaintiff saw Dr Ng, who recorded that the Plaintiff reported improvement in pain level over the back of his neck and lower back from the present medication but not lasting long enough. The Plaintiff admitted being frustrated and labile in his mood as well as exhibited angry outbursts. His medication, Duloxetine and Gabapentin was increased. He was advised to continue on Norflex and physiotherapy as well as psychological intervention. He was recommended to have a neuropsychological assessment at the Brain Injury Clinic at Liverpool Hospital. [444]
On 11 December 2014, an MRI of the Plaintiff's lumbar sacral spine was performed consequent of what were asserted to be complaints to the left lower back and left leg since 9 May 2014. Dr O'Rourke reported:- 'The central canal is mildly congenitally narrowed across all levels due to shortened pedicles. At L3/4 and L4/5. Disc desiccation and minimal disc bulging with flaval hypertrophy clearly causing some bilateral lateral recess narrowing but there is no evidence of exiting or traversing nerve root impingement at either lever No annular tear or focal disc protrusion at any level." [445]
On 18 December 2014, Dr Al Shelth stated that it appeared that the Plaintiff's back pain was not present at the accident yet it was masked by head and neck injury and he never had an issue of his back and so presumed that his back pain related to his work cover injury. [446] Dr Al Shelh noted a tender L5/S1 disc.
On 22 January 2015, the Plaintiff was reviewed by Dr Glen Sheu for the workers' compensation insurer. He formed the view that the Plaintiff's symptoms were not consistent with his injuries and employment was not a substantial contributing factor. [447]
On 29 January 2015, the Plaintiff saw Dr Henry Lam, a specialist in pain management at the request of Dr Ng. [448] Dr Lam stated that during assessment, the Plaintiff had minimal pain coping strategies or pain management skills and would benefit from an integrated multidisciplinary work-related activity treatment in order to help his return and further vocation and avocational activities and goals. Dr Lam reported that it was "important that the multidisciplinary pain management pain work in association and synergistically in order to dampen down and break the pain cycle, thus creating a window of opportunity whereby the patient will be able to develop better pain coping strategies and pain management skills." [449]
On 3 February 2015, the Plaintiff was reviewed by Dr Ng and noted that he had been commenced on 2 newer medications prescribed by Dr Lam, which was helping to control his chronic pain involving his whole head, neck and the top of both shoulders as nociceptive and neuropathic pain, but he would feel dizzy and dazed when he wakes up. He noted that he would liaise with Dr Lam to fine-tune the Plaintiff's medication before he was next reviewed in March 2015 and in the meantime, he was to continue his psychological intervention through Dr Al-Shelh's practice as well as commence a supervised gym-based strengthening program with Interactive Physiotherapy Liverpool and await a neuropsychological assessment of the Brain Injury Clinic Liverpool Hospital. [450]
On 12 February 2015, Mr Peter Lim, Physiotherapist noted that the Plaintiff had completed the work conditioning session on 10 February 2015. The report noted that the Plaintiff was highly pain focused and had been complaining of pain with all exercises and movements, however the emphasis was to try and shift his focus away from pain and towards improving functional capacity and activity levels. The Plaintiff was encouraged to use his gym membership and attend the gym 2-3 times a week independently and perform prescribed exercises that were deemed appropriate during supervised sessions. [451]
On 18 February 2015, Dr Ng reviewed the Plaintiff and noted that Dr Lam had confirmed that he prescribed him with Epilim and Zaldiar in place of Gabapentin and Norflex. The Plaintiff was recorded as reporting ongoing chronic pain involving his whole head, neck, to the top of both shoulders as mixed nociceptive and neuropathic pain (worst pain in all regions at 10 out of 10, especially pressure pain in the head). He recorded the Plaintiff reporting that he was feeling very frustrated as he had always been a worker and was keen to resume work if he can think clearer and not feel so depressed. Dr Ng recommended continuation of the present treatment with some variation to his medication. [452]
The Plaintiff workers' compensation benefits ceased in February 2015. The proposal advanced by Dr Lam for a multi-disciplinary pain management team had not been advanced at that time by the Plaintiff. The Plaintiff asserted in evidence it was because he could not afford to feed his family, pay his rent or overheads. [453] He stated that he went to a chiropractor. [454] When his attention was drawn to the amounts deposited into his account as well as the workers' compensation monies he stated that "I don't know." [455]
On 25 May 2015, the Plaintiff was seen by Dr Lu, Physiotherapist who noted that he was significantly limited to less than a quarter range of movement in all directions with active movement of the cervical and lumbar spine. He noted that the Plaintiff was highly pain focused and displayed avoided behaviour is such that any physical activity significantly worsened his symptoms. The Plaintiff was advised to remain relatively active and to perform home based exercises; however, he questioned compliance in this respect and noted the functional capacity was limited. [456]
On 7 December 2015, the Plaintiff was seen by Dr Ng who noted that he reported further improvement to the chronic neck and lower back pain as well as calmer with Duloxetine. The Plaintiff was reported to have been more functional at attempts to do light swimming and walking in a home pool. The Plaintiff admitted that he was still very angry at times for no apparent reason. Arrangements were made for the Plaintiff to see Dr Lam. [457]
On 9 February 2016, Mr Moutsallem recommended that the Plaintiff undergo conservative management for 10 weeks and otherwise await instructions from the treating neurosurgeon regarding surgery. [458]
On 30 March 2016, the Plaintiff was reported on Dr Bakhos Hosni, Physiotherapist, who noted that the Plaintiff had only mild temporary relief from physiotherapy and no improvement to date. He noted that the Plaintiff had high pain levels in the neck and lower back with regular headaches, dizziness and arm pain. Active motion of the cervical spine and lumbar spine remain restricted and pain was proactive in both directions. He recorded the Plaintiff remained non-compliant with arm based exercise programs and was discharged. [459]
It appears that an MRI of the lumbosacral spine was carried out on 25 October 2016. This noted some minor central bulging at the L4/5 level and also a more significant central bulge at the L5/S1 level but there is no nerve root compromise at either level. The report noted a left sided disc injury at the L3/4 level however no sign of nerve root involvement on the left side was observed. [460]
A CT scan was carried out on 21 December 2016. It was noted that he had an epidural at the L4/5 level which showed that he had complete resolution of symptoms after the injury and that lasted 24 hours. [461]
There is evidence that the Plaintiff had two corticosteroid injections into the lumbar spine on 29 May 2017 and 1 June 2017, however to no benefit. [462]

[25]

Pharmaceutical Scripts

The Plaintiff in cross examination was asked about the absence of receipts for pharmaceuticals in his claim. It was put to his that he didn't get his scripts for medication [463] filled. The Plaintiff stated that that his wife Ms Adams made the purchases and denied knowledge of where they were made. [464] He stated that his medication had included analgesia, Valium and Zyrtec. [465]
Ms Adams stated that, she said that she bought the medication for herself and for the Plaintiff and would attend upon the Day and Night chemist at Wentworthville. [466] She described the medication she purchased as Tramadol every month, and that she used the Plaintiff's Westpac card. [467] She also purchased the Plaintiff's pain medication which she could not recall. [468]
In cross examination, Ms Adams at first stated that that she went to the same Day and Night Chemist. [469] She stated she did purchase medications for the Plaintiff and did not often go to the chemist to purchase things from her children or for herself. [470] Following being questioned as to the availability of receipts she stated that she did not need them as she had her bank statement. She subsequently added that she would not make all purchases from the Day and Night Chemist because it depended on where she was at the time. [471] She identified the other Chemist as one in Liverpool. [472]
The Defendant submitted that the that the Plaintiff received 223 scripts from his general practitioner since the accident and has filed approximately 25 noting that some of the scripts are for Serc which was identified as medication for hearing loss and tinnitus.
Ms Adam's testimony as to her making pharmaceutical purchases was unsatisfactory. At first she stated that she purchase from one chemist then stated that it depends where she was. The latter answer was proffered only when the absence of records was raised in questioning. The records produced, indicate only that the Chemsave Day and Night Chemist at Wentworthville was used to make purchases. On the evidence, I accept that the claimed amount represents the purchases made and these constitute only a small fraction of what was prescribed.
The Defendant submitted that the Plaintiff provided no explanation as to why he continued to seek and receive scripts from his doctor and what happened to them. Further that the records show that only $800 or 10% of the scripts have been processed. It noted that the issue of medication was central to Dr Ng's recommendations. The Defendant submitted that the Plaintiff lied to Dr Ng such that he proceeded on a false history and no weight can be given to his opinion. It noted that he received workers compensation until January 2015 [473] and agreed that he has not spent a dollar of his own money on medical expenses. [474]
Neither in oral nor written submissions did the Plaintiff respond to this submission. In particular the Plaintiff did not take issue with the Defendant's analysis of the what was submitted in respect of the pharmaceutical records in Exhibit P, Q and part of Exhibit 7 in so far as they related to the Plaintiff record pharmaceutical claims of $846.95 and $622.95. The expenses in part of Exhibit 7 appear incorporated the records of Exhibit P. The time period for the workers' compensation payment of pharmaceutical and the records in Exhibit Q overlap. I therefore infer that that the records referable to the accident before February 2015 were submitted and paid by the workers' compensation insurer in the absence of any more precise records.
Purchases appear to have declined significantly after workers' compensation payments ceased and pain medication Tramadol was first purchased in 2017. In all a relatively small amount of pharmaceuticals were purchased since payments ceased and not all purchases appear to relate to the injuries.

[26]

Dr Michael Fearnside

On 10 February 2015, the Plaintiff was seen by Dr Michael Fearnside Neurological Surgeon at the request of his solicitors. Dr Fearnside opined that the Plaintiff sustained mild head injury and ongoing post-concussional symptoms. Headaches, vertigo, light-headedness and poor memory were indicative of his condition. Dr Fearnside anticipated a good prognosis and noted the majority of patients who see such a condition will see resolution within 12 months although Dr Fearnside noted the Plaintiff suffered an injury to the neck and had symptoms of a non-verifiable upper limb radiculopathy. He stated the Plaintiff sustained soft tissue injury to his lower back and both in the neck and lower back, there was ongoing axial pain.
From a neurological point of view, Dr Fearnside opined that no treatment was necessary although the Plaintiff would benefit from psychological counselling to help him understand post-concussional syndrome and his symptoms. Dr Fearnside stated that the Plaintiff would also benefit from referral to a Brain Injury unit for mild traumatic brain injury. He noted that based on the Plaintiff's presentation, he is not suitable for employment in any capacity at the present time. In a separate report, Dr Fearnside found a 5% whole person impairment of the spine for a non-verifiable upper limb radiculopathy.
After reviewing surveillance video on 22 May 2014, and 27 May 2014, [475] Dr Fearnside reported on 1 August 2017 that it was of little value and at one point, the Plaintiff when entering the Liverpool Medical centre seemed to have no neck movement, but later, a normal range of motion of the neck towards the left, but no other movement was visible. [476]
Dr Fearnside gave oral evidence. In evidence in chief, he stated that with ongoing post-concussion symptoms, there is usually a transient disturbance on consciousness and this did not mean that there was a loss in consciousness but not infrequently, a person has some alteration of consciousness just for a short period. He stated that it was difficult to be certain whether this was due to the actual blow to the head or the event of the injury itself which may have been to other body regions which can cause someone to feel shocked and dazed. [477] He stated that the blow sustained by the Plaintiff was consistent to the likelihood of development of post-concussion symptoms, although it is difficult to make a comment in relation to degree of energy of the impact. [478]
In cross-examination, Dr Fearnside accepted that post-concussion symptoms or post-concussion syndrome was part of a psychological condition. [479] He was asked whether his reference to an appropriate category for a DSM 4 post-concussion disorder meant the symptoms which the Plaintiff was suffering were more likely to be psychiatric than neurologically based. He stated that in this instance there was no rateable impairment under the particular section of AMA5 and the only other option was for assessment by a psychiatrist to assess under the DSM categories in psychiatric assessment where there is such a category. He accepted that when he examined the Plaintiff in February 2015 he could find no neurological abnormality. [480] He further accepted that he could find no radiological or objective basis for complaints of pain in the back and soft tissue. In relation to the arms, he stated that the complaints sounded like radicular pain which would not be a soft tissue injury to the neck but rather involve some disturbance of the nerve root areas in the neck. He stated the fact that the pain travelled down the arm to three particular fingers would suggest a particular nerve was struck. However when examining the Plaintiff, there was no objective evidence to support the assertion meaning that he had non-verifiable upper limb radiculopathy with no verifiable objective signs. [481]
In essence, Dr Fearnside accepted that the Plaintiff's complaints of pain and his symptoms may be explicable on that basis. [482] He accepted that his diagnosis of post-concussion symptoms rested upon acceptance of the Plaintiff's complaint throughout most parts of his body to which he related to the accident. [483] He accepted that there was no objective support for the symptoms. [484] He further accepted that he could find no reason why the Plaintiff had a 95% restriction to the movement of his neck, [485] but accepting the complaint offered an explanation for it, on the basis of post-concussion syndrome. [486] He stated that having regard to the mechanics of the accident, he regarded restriction to the movement of the neck as unusual, as was the fact that 9 months after the accident, complaints of headaches, neck, back, shoulder and arm pain were present. He also was unable to explain any reason why there had been no improvement since the accident had occurred. [487]
Dr Fearnside accepted that there are a small group of people who do not have a genuine injury but have ongoing symptoms, whether it's due to a belief or actual experience, it was impossible to dissect the two. [488] He stated that he did not believe that the Plaintiff required any treatment from a neurological standpoint. [489] He stated that he did not question him as to whether he was taking all of the medication, but simply accepted what the Plaintiff told him. [490] He accepted that the Plaintiff had genuine post-concussion syndrome and there would limitations on his work. [491] He stated that it would be anticipated that after 12 months, there would be natural history of improvement, even if not resolution. [492] He accepted that for a person to be still suffering thereafter would be very unusual, in fact rare, where the injury sustained was attributed with a normal Glasgow Coma Score, no post‑traumatic amnesia and the cut to the head did not require stitches and there was no active bleeding. [493] He then stated that he had seen it before, but the sample of patients or people that he saw was biased because he saw people who do not recover, but in the literature and in the general proposition, one would expect that there would be substantial improvement, if not resolution with time. [494] Given the history that he was provided with when he examined the Plaintiff in February 2015, Dr Fearnside accepted that his expectation was that he would have recovered within 12 months. [495]
Dr Fearnside stated that dizzy spells and vertigo were part of post-concussion syndrome and was variable in people. He stated that many people with minimal injury are quite severely affected, also that people with more major injury are not so affected. He described it as an individual symptom and it was not inconsistent with injury that the Plaintiff sustained dizziness as a permanent feature of his complaint. [496] Dr Fearnside described the dizzy incident or the vertigo as an injury to the vestibular system which was the inner-ear. He noted that the Plaintiff had a normal vestibular function test, which would exclude organic injury to the inner ear. [497] He noted the report of Dr Phillip Yeung, ear, nose and throat surgeon and accepted that Dr Yeung was suggesting that his observations were inconsistent with the Plaintiff having any balance issues. [498] He also noted that the MRI of the brain performed on 25 July 2014 indicated no intracranial abnormality. [499]
In re-examination, Dr Fearnside indicated that there are a small group of people with post-concussion syndrome in the order of 5% who have persistent symptoms for 2 years. [500] He stated that there was no way of predicting whether the Plaintiff fell within this portion other than the effluxion of time. [501]
In relation to his recommendation for psychiatric investigation and evaluation, Dr Fearnside reiterated the lack of precise knowledge about the pathology of minor head injury and not knowing a great deal about what actually happens in the brain, whether there is interrupted circuitry which would not show up in MRI scans or CT scans at the present state of knowledge. He reiterated that there is perhaps a little more to it in the organic basis than thought, but they really did not know. [502]

[27]

Dr Rushworth

On 15 July 2014, the Plaintiff was examined by Dr Rushworth, Neurosurgeon on behalf of GIO General Ltd. [503] Dr Rushworth noted on examination that the Plaintiff carried his head normally on his cervical spine, although movement of the cervical spine was carried out to a few degrees only. Both upper limbs were noted to be weaker than expected and sensory testing showed him to have glove hyperalgesia on the left extending to the elbow. Deep reflexes were unobtainable.
In terms of his current status, Dr Rushworth noted that the Plaintiff complained of an endless list of symptoms including dizziness, pounding in the head, hands aching upon waking, numbness in the fingers, neck pain, nervousness and ringing in the ear. He stated that he spent all his day sitting on the couch and did not do anything. He stated that he went to physiotherapy three times a week, but did not go out unless it was to a doctor or physiotherapist. Dr Rushworth stated that the symptoms were out of proportion to the described injury which he diagnosed as a minor head injury and possible neck injury. He stated that the Plaintiff may have sustained a minor neck injury but he was not unconscious and could not be said to have had a concussion.
In summary, Dr Rushworth stated that the only evidence that the Plaintiff on 9 May 2014 was the history. He was not of the view that the Plaintiff could pre-injury employment and the Plaintiff's current incapacity was due to his numerous symptoms, therefore the effects of the injury could not be said to have ceased. He noted that the Plaintiff's prognosis was poor and previous history with similar patients suggested that symptoms would continue indefinitely. Dr Rushworth concluded that physiotherapy and psychological counselling could be considered reasonably necessary and related to the work injury, but he stated that he was likely to require physiotherapy once or twice a week initially and psychological counselling once a week. He also recommended referral to a work rehabilitation clinic. Although he considered the worker as still suffering from a work related injury he did not regard the Plaintiff's presentation as consistent with the claimed injury.
On 6 August 2014 following reviewing a surveillance disc, Dr Rushworth noted that the surveillance [504] appeared to show the Plaintiff showing none of the illness behaviour that he demonstrated on examination. [505]
Following a further report of 3 September 2014, Dr Rushworth opined that based on the surveillance said to be taken on 22, 27 and 29 May 2014 [506] the Plaintiff would appear to have full functional capacity and should not be certified as totally unfit for work, although the video cannot be used as evidence that somebody could undertake heavy work such as construction. [507]

[29]

Associate Professor Jones

The Plaintiff was examined at the request of the Defendant's solicitors by Associate Professor Richard Jones on 10 May 2017. In his report of the same date, Associate Professor Jones records that following the accident, the Plaintiff's symptoms were pain in his neck and arms and he could not feel his arms and neck. He stated that he felt dizziness as the metal had struck his head and he remained in hospital for 4 to 5 hours and was given morphine before being sent home. Upon returning home, he is recorded as having informed Associate Professor Jones that his body froze and he could not move his neck or arms and called a doctor. X-rays were taken which showed discs in the neck and back and the treatment of physiotherapy, medication and massage were of no help. The Plaintiff reported that he had two injections but this gave him more pain in the lower back, although it did help his symptoms for a day.
In terms of continuing sequelae, Associate Professor Jones recorded that the Plaintiff stated that he was dizzy and wanted to sleep but he had ringing in his ear, his back hurts and his hands hurt. The Plaintiff also added that he had both left and right leg pain, pain in the right hand, particularly in the first, second and third digits, radiating to the shoulder and the neck. He also had pain in the jaw around the temporomandibular joint region and he could not open his mouth when he woke up. He stated that the got angry very quickly and the only part of his body he did not have pain was the chest. When asked about his general health, the Plaintiff was recorded as reporting that it was no good, that he was not happy to live and that everyday he was angry. Particularly he was noted as waking at 3:00am with right hand and arm pain. He stated that washing with hot water causes him dizziness, although he is able to dress himself. His sexual history was less frequent. Further, it was reported that he had reduced involvement in domestic chores which he previously undertook about 50% of.
Examination conducted by Associate Professor Jones found the upper limbs to be of normal tone with diminished pin prick sensation in the first, second and third digits of both hands. Movement of both shoulders were within the normal limits, although the Plaintiff informed him that it caused too much pain. His limbs showed no atrophy of muscle groups and reflexes were equal and normal. Sensation was better on the left than on the right and power was normal bilaterally and the Plaintiff stated that he could stand on his toes and heel and on the toes of each foot independently. Examination of the back revealed that there was no localised spasm or tenderness and general palpation back movements were to about 60% of normal in lateral flexion and forward flexion and extension.
In summary, Associate Professor Jones stated:- "… I have in this report faithfully recorded the history provided by Mr El Kheir and my finding on physical examination. I am not of the opinion that Mr El Kheir would be suffering physical symptoms consequent upon the accident of 9 May 2014, although it is possible that the hand symptoms and arm pain are associated with a neural compression condition, particularly around the carpal tunnel and this is aggravated by driving and is not an infrequent condition in the labouring community. I provided my findings on physical examination and believe that initial soft tissue impairments should have an expectation of resolution within 3-6 weeks of the accident of 9 May 2014. I am not of the opinion that now there is a nexus between Mr El Kheir's physical symptoms and the incident of 9 May 2014. I believe that he is eminently vocationally rehabilitable and that mild labouring duties would be appropriate. Limitations in his vocation potential would be due to his perceptions of impairment rather than any objective findings of physical impairment. I am not of the opinion that he requires personal care or domestic assistance now or into the future. From the time of the accident, I believe that Mr El Kheir should have remained independent, as a best estimate, in personal care and domestic activities."
In a supplementary report of 10 May 2017, Associate Professor Jones, having read previous reports in respect of the Plaintiff, prepared by other medical practitioners, noted that none of them caused any alteration in the opinions that he expressed in his principal medico-legal report. [510]

[30]

Conclave Associate Professor Jones and Dr Bodel

Professor Jones and Dr Bodel participated in an expert conclave, the outcome of which was a joint report dated 18 August 2017. [511] Both Professor Jones and Dr Bodel agreed that the Plaintiff's injuries were soft tissue injuries to the neck and back. Professor Jones was of the view that when he first saw the Plaintiff on 10 May 2017, he saw no evidence of organic tissue injury. Dr Bodel disagreed and found that the Plaintiff on 27 October 2014 and 21 April 2017 had clinical evidence of persisting soft issue injury to the neck and back which he described as restricted movement consistent with injury.
Professor Jones believed that the Plaintiff had perceptions of impairment but otherwise found no objective evidence of physical impairment caused prior to or subsequent to 9 May 2014. Dr Bodel found no evidence of any continuing injury or disability not caused by the incident of 9 May 2014. On this basis, Professor Jones found that no treatment was required, whereas Dr Bodel felt continuing conservative care for residual soft tissue injury to the neck and back was appropriate including intermittent physiotherapy and exercise. He acknowledged however that the main ongoing disability was due to psychological disturbances but these were outside of his expertise.
Professor Jones did not believe that any further allied health therapy was required. Dr Bodel felt that the Plaintiff may require intermittent physiotherapy on an as need basis.
Professor Jones felt that the Plaintiff did not require domestic assistance. Dr Bodel indicated that the Plaintiff indicated that he required domestic assistance, which was provided by his family. Professor Jones felt that there was no reasonable need for such domestic assistance, whereas Dr Bodel simply noted that historically he has been provided with such assistance and he was informed that it was ongoing. He did not respond directly to the question of whether it was reasonably required. Nevertheless, on balance, he expected that between 4 and 6 months of assistance for the management of soft tissue injuries after which improved physical fitness levels would allow the Plaintiff to dispense with the need for ongoing assistance. Professor Jones did not believe that he required domestic assistance and nor directly, did Dr Bodel. So far as the future is concerned Professor Jones did not believe that domestic assistance was required, whereas Dr Bodel felt that it may be required on an as needs basis, but from a physical point of view, only if he could not improve his general levels of physical fitness.
The claim for domestic assistance was not pursued by the Plaintiff.
So far as employment is concerned, Professor Jones and Dr Bodel agreed that the Plaintiff would not be able to go back to his previous employment. Professor Jones and Dr Bodel agreed that he could perform moderate labouring duties. In Professor Jones' opinion, on a full time basis and in Dr Bodel's case, for between 20 to 25 hours a week with a potential to upgrade to full time permanently modified duties. Neither of them viewed that the Plaintiff required assistive equipment.
In the joint evidence session, Professor Jones indicated that he found no organic reason for the pain; in fact every time he asked about the pain, the Plaintiff identified a new area of pain. He eventually asked if there was any part of his body where there was no pain and he thought about it for a while and said his chest which he found ordinarily unusual. Ultimately, he had determined that he could find no abnormal physical signs which would preclude him from being behind in his personal care and thought he should be considered for vocation placement if the Plaintiff was motivated towards that. Dr Bodel indicated that as he saw it, the disagreement between him and Professor Jones was over the longevity of the soft tissue injury. Dr Bodel accepted the plaintiff's history and that this was ongoing evidence of probable soft tissue injury causing some incapacity, but conceded there were no objective signs or neurological abnormality to confirm that may be so. [512]
Associate Professor Jones stated that he did not believe that a prospective employer would be enamoured by the Plaintiff's presentation and that if he was a vocational specialist trying to get him back to work, he would try to get him back into something that was not physically demanding, but Associate Professor Jones still felt that should be a labourer. [513] He reiterated that he would restrict the lifting to between 10 and occasionally 20kgs. [514] When it was put to him that was because of symptoms referable to soft tissue injury, Professor Jones responded that he did not accept the Plaintiff had continuing soft tissue injury. [515] On the other hand Dr Bodel confirmed that the reason why he would not suggest going back to full time work was because of the soft tissue symptoms based on his presentation. [516]
Dr Bodel stated that before the joint evidence session with Associate Professor Jones, he had the opportunity to view the video surveillance. [517] He stated that following the video evidence, there was a part of it that led him to conclude that what he saw in his examination in May 2017 was not as it would appear and therefore he was not accepting of the degree of incapacity associated with it. He confirmed that his answers given in the joint conclave were modified compared to the original report in May. [518] When he was asked specifically to indicate the part of the video he found significant and not consistent with his examination, Dr Bodel stated:- WITNESS BODEL: The section where the gentleman was seen outside of the medical practice in Liverpool waiting to go into an appointment and then an hour later he came back out again. It struck me that the video was being shot very close to him and I got an impression, but I have nothing more than an impression, that he was aware that he was being videotaped at the time. And that was a little bit more restricted than at times that I had seen him and I thought that that was unusual particularly three years down the track. CAVANAGH: You might be specifically referring to when he came out of the medical centre and he entered his car in a very slow and deliberate manner holding onto the door as if he couldn't sit down properly, is that what you're referring to in particular? WITNESS BODEL: I might but I was really more ‑ the part before that where he stood beside a car, faced towards the car where the videotape was being shot from and he looked very stiff and very rigid which looked unnatural to me. [519]
Dr Bodel was asked whether he accepted the Plaintiff's complaints of pain and therefore that he would be unfit to return to heavy industry work. He stated that based on the totality of the Plaintiff's presentation and in particular the nature of the injury, his clinical findings on examination on two occasions and the minor abnormalities on the MRI and CT scans, he is of the view that make it inappropriate for him to go back to unrestricted heavy labouring as a form worker-carpenter based. [520]
Professor Jones was asked whether that if a referral to a multi-disciplinary pain management clinic in 2014-15 had been enacted upon, it would have made a difference to the Plaintiff's capacity for employment and dealing with pain. He responded that this is an avenue of desperation that sometimes helps to assist persons not to become dependent on narcotics. As to whether it would help the Plaintiff, he could not say. [521] He stated that the Plaintiff has perceptions of impairment but his motive for those perceptions were beyond his knowledge. [522] Despite the fact that Professor Jones dealt with the psychological component as part of rehabilitation, he stated that he was asked in this case only to comment on physical issues, not psychological ones. [523] He stated that the Plaintiff was maximising his symptoms and that he was attempting to show him that he was worse than he really was. [524] He stated that there is question as to whether the Plaintiff was intentionally or unintentionally maximising, being a matter which he could not answer. He accepted however that maximising can be part of the somatoform disorder. [525] Professor Jones stated that he did not know whether the Plaintiff had psychological sequelae from his injuries. [526]
Both Professor Jones and Dr Bodel accepted the kind of work the Plaintiff was performed at Edessa [527] was the kind of light work that he could perform. [528]
Dr Bodel and Professor Jones accepted that the Plaintiff needed to be rehabilitated to go back to any form of work. Dr Bodel felt that as he has not done a lot of work then it would be inappropriate for him to go back to any form of work unless it was a graded program of some activity, maybe some retraining to assist him back into the workforce with the opportunity to upgrade to a full time position. [529] Professor Jones did not feel that he required any form of vocational placement and that it would be a matter of liaising with his employer to encourage him to be placed into a job that was appropriate for him. He stated that if the Plaintiff wanted to go back to formwork and he was highly motivated to that end, he will work with him accordingly. That said, the Plaintiff may face all sorts of problems so he thought it would be best for the Plaintiff to go into modified employment, not formwork as it involves lifting. [530] Dr Bodel did not feel that following reconditioning, the Plaintiff would be able to return to formwork, although Professor Jones felt that he could, if motivated, recognising that the Plaintiff has not done anything for years. [531]
On the question of consistency of the presentation, Dr Bodel, stated that:- WITNESS BODEL: The degree of the restriction at the moment when I've seen ‑ on the two separate occasions seem to be different and unexplainable, even when I accept the persisting soft tissue injury, and that's why as time has gone on I, like in answer to earlier questions with Professor Fearnside, would accept that the timeline is getting too long for a soft tissue injury to cause him total incapacity, and I would have anticipated no matter what the underlying structural injury, if there is any significant structural injury, would be compatible with some return to work and some return to normal life, doing things around the house, and these sorts of things. Yet I was under the impression he was still quite severely incapacitated at the time that I saw him and I don't think that's the case. CAVANAGH: Would you assume that he's given evidence to this effect, that he can't undertake any physical activity at all, he can't help around the house, he can't work, he can't shave himself, he can't shower himself, he can't bath himself, he cannot sweep, he cannot do anything at all around the house to help, he is physically unable to do it. At least from your perspective, physically, organically, there's no reason you can think of why he'd be in that position? WITNESS BODEL: You ask me to assume at an early stage that he actually worked at the beginning of this year, so that's to say that he is capable of that by virtue of the fact that he has been observed to work. So that's again part of the inconsistency of your assumption to me is correct, he should be capable of that sort of work. [532]
Professor Jones deferred to Dr Bodel on the question of inconsistencies in findings. He stated that there was nothing on examination which he found that would support the level of the Plaintiff's complaint of his inability to perform physical activities as described in his evidence. [533]

[31]

Conclusions on Physical Injury

I accept that as a result of the accident the Plaintiff suffered a laceration to his mid-parietal, which was 4 cm.
The Plaintiff and Ms Adams however exaggerated the extent of the injury the Plaintiff received and the impact it had on him. This is particularly so as to the extent of the bleeding and pain and the presence of dizziness. To the extent that their evidence is not supported by the Westmead clinical notes I do not accept it. Beyond that the Plaintiff's appearance in the surveillance was inconsistent with the history provided to doctors who examined him as discussed in these reasons. Furthermore I am satisfied that the Plaintiff dishonestly sought to associate his hearing loss and tinnitus to the accident and presently himself inconsistently before Dr Yeung.
The Defendant submitted that there was no reference to any report of a problem with the Plaintiff's back at the hospital on 9 May 2014. [534] This is incorrect. The clinical notes record complaints of back and neck pain [535] and at one point a cervical collar was applied. The summary also records the Plaintiff as having fallen backwards and hitting his head. [536] I accept the Plaintiff suffered from headaches at the time and that he was initially confused. However I am not satisfied he suffered dizziness as on discharge, he was noted to be hemodynamically-stable, eating and drinking and mobilising well with nil concerns.
Subsequent to his discharge it is reported the Plaintiff continued to suffer neck pain evidenced in the notes of Dr Bishay of 10 May 2014. Dr Bishay however makes no note of dizziness or back pain. Dizziness was recorded by Dr Ghayath Al-Shelh .who noted complaints in this regard since the accident. He also noted severe neck pain and numbness towards both shoulders and arms, with restricted mobility of the cervical spine in all directions with pain. The CT scan reported on by Dr Luckey noted disc bulging at C5-6 and broad based dorsal disc protrusion at C6-7 causing early flattening of the thecal sac on the left and potential compromise of the existing C7 nerve route. There was mention of back complaints on 20 May 2014 to the physiotherapist Mr Moutsallem and subsequently to Dr Shelh on 28 May 2019.
On 28 July 2014 when the Plaintiff was taken to Westmead Hospital there was also no complaint of back pain. The clinical notes record bilateral tinnitus and sudden onset of vertigo spinning. I am not satisfied that this arose from the subject accident. When the Plaintiff consulted the physiotherapist the Plaintiff was noted to have symptoms of constant pain the cervical spine, pain and numbness radiating down the left arm and constant headaches and dizziness. There was no mention of back pain. [537]
Dr Van Gelder noted no neurological signs and stated that the Plaintiff would benefit from counselling about his condition. On 5 November 2014, the Dr Val Gelder, remarked that from a neurosurgical perspective, the symptoms in the cervical spine seemed disproportionate to the relatively minor spondylitic changes. [538]
The proposal advanced by Dr Lam for a multi-disciplinary pain management team has not been actioned by the Plaintiff. For reasons that follow, I do not accept as the reason the Plaintiff's explanation that he could not afford it. [539]
The Plaintiff submitted that the Plaintiff's doctors cannot be dismissed on what was asserted to be the Plaintiff's unsupported testimony. [540] It was argued that they were based upon objective criteria, clinical evaluation and judgment.
Overall in light of the mechanism of the injury and the proximity of the recorded complaints, I am satisfied that that some intermittent back pain was caused by the subject injury.
I accept on the evidence that the Plaintiff sustained soft tissue injury to his neck and lower back in the subject accident. Such is consistent with the findings of Dr Fearnside, Professor Jones and Dr Bodel. Dr Fearnside accepted when he examined the Plaintiff in February 2015 he could find no neurological abnormality and no radiological basis for complaints of pain including the arms. Given the history that he was provided with when he examined the Plaintiff in February 2015, he accepted that his expectation was that he would have recovered within 12 months. He indicated that there are a small group of people with post-concussion syndrome in the order of 5% who have persistent symptoms for 2 years. He acknowledged that this was a psychological condition. Dr Fearnside's observation of the surveillance taken on 22 and 27 May 2014 was that the Plaintiff seemed to have no neck movement, but later, a normal range of motion of the neck towards the left, but no other movement was visible.
On 21 April 2017 when the Plaintiff was seen for a second time by Dr Bodel he observed that in terms of muscular skeletal injuries, he was at a loss trying to understand the level of ongoing incapacity. He opined that the Plaintiff was severely incapacitated by psychological issue and a diagnosis of Post-Traumatic Stress Disorder which relates to matter outside his expertise.
In the joint evidence session, the area of disagreement canvased the duration of the soft tissue injury.
Dr Bodel's was more qualified in his assessment of the Plaintiff since when he first examined him in 2014. Whilst he is more accepting of the Plaintiff than Associate Professor Jones as to suffering the effects of soft tissue injury, this has dissipated with time and more information coming to light. To the extent that Dr Bodel continued to support the Plaintiff, it is based on an acceptance of his complaints notwithstanding that the degree of restriction he observed to be different and unexplainable. I concur with Dr Bodel's observations of the surveillance referable to when the Plaintiff attends the Liverpool Medical Centre being unnatural. They are also inconsistent with Plaintiff's presentation later on surveillance on 27 May 2014 when he is turning his head in a patisserie. The Plaintiff when cross examined conceded that it was him in the patisserie although at one point stated that the person looks very ugly and didn't look like him. [541]
On the question of the duration of the Plaintiff's physical symptoms Associate Professor Jones' perspective was referenced to his expectation following on an examination in 2017. In oral submissions the Plaintiff relied on Dr Rushworth stating that his report of 15 July 2014 represented significant medical evidence in relation to what the Plaintiff and why the Plaintiff presents as he does. It was submitted that those were the findings that ought to be made with regard to the Plaintiff's medical condition, relying also upon Dr Bertucen. [542] The Plaintiff did not address the two subsequent reports [543] of Dr Rushworth which followed a review of the contents of the surveillance footage taken in respect of the Plaintiff.
Whilst there were differing views as to the duration of the Plaintiff's physical symptoms I would on balance accept Dr Fearnside's evidence that physical effects of the Plaintiff's condition ceased at the latest by 10 February 2015 when he examined him. This is consistent with the decline in the purchase of medication and the significant reduction in specialist treatment.

[32]

Dr John McMahon

The Plaintiff was seen at the request of the GIO as agent of the NSW work cover scheme on 25 June 2014, by Dr John McMahon, Clinical Psychologist. [544] Dr McMahon carried out a test for memory malingering, which was a form of forced choice recognition task for everyday objects. He stated that it consisted of 50 items presented over two trials and three recall tasks. He opined that research shows that performance of this test is relatively insensitive to neurological impairment so that accurate performances should occur on this test, despite impaired range performance on standardised tests of learning and retention. He stated that the test was sensitive to motivation defects and could accurately identify between people who are asked to simulate cognitive impairment versus the performance of those with actual impairment. He concluded that Mr El Kheir's pattern of responding on the three tests was inconsistent with a genuine pattern of responding and consistent with efforts to appear overly symptomatic.
Mr McMahon also administered the Minnesota Multiphasic Personality Inventory, which is a self-reported personality assessment inventory, which he stated was a widely used and researched objective personality inventory. He acknowledged that the test was administered with the assistance of an interpreter and at times the relationship became fractious. On symptom validity scales, Dr McMahon found that the Plaintiff's pattern of responding reported emotional distress and a number of unusual behaviours and symptoms.
On Clinical scales, he observed that persons with Mr El Kheir's profile had a mix of depressive features and numerous physical symptoms. In respect of content scales, he noted that the Plaintiff's pattern of responding was characterised by excessive worrying against a backdrop of nervous tension, disturbed sleep with problems of attention and concentration and he noted that persons with Mr El Kheir's patterns of responding had a number of neurological symptoms of persons believed that they are in poor health and worry about their health and catching disease. In respect of the supplementary scales, Dr McMahon noted that people with Mr El Kheir's pattern of responding were reporting a mild level of general distress, even though they are trying to inhibit or suppress any awareness of their problems. [545]
In determining whether the Plaintiff's symptoms met DSM4 criteria for a particular psychiatric disorder, Dr McMahon stated that this determination was complicated by Mr El Kheir's failure of the test of memory and malingering, which indicated efforts to appear overly symptomatic. He stated that if taken at face value, Mr El Kheir's presentation evidenced some somatisation in which anxiety about his medical condition is converged into physical symptoms that are like a medical disorder. He would therefore qualify for a "pain disorder" with both a general medical condition and psychological factors or undifferentiated somatization disorder. This could only be disambiguated by him being confronted by his medical practitioner. [546]
He stated that the Plaintiff's reported symptoms were excessive for such a situation and the failure of the test of memory malingering indicated a significant motivational component to his presentation. Dr McMahon stated that given the absence of radiological evidence of intracranial pathology and the brief loss of consciousness, it would be highly unlikely that there would be any neuro-psychological symptoms, not better accounted for by symptoms of depression or anxiety. In his view, a neuro-psychological examination at 18 months, post injury would be required to make any determination about permanent changes to neuro-psychological functioning. Dr McMahon stated that in his opinion, the Plaintiff was fit for 20 hours of work on duties within his physical limitations. [547]
From a psychological perspective, Dr McMahon stated that he had significant difficulty concluding that the event has been materially significant in the Plaintiff's development of psychological incapacity for work. [548]

[33]

Dr Vickery

On 20 January 2015, the Plaintiff was seen by Dr Graham Vickery, psychiatrist and pain management consultant, who reported on the same date.
Dr Vickery reported symptoms complained of by the Plaintiff were grossly excessive to the alleged cause and the Plaintiff's working conditions could not be confirmed as the primary contributing factor to the psychiatric disorder as he only suffered minor abrasions. He stated that the Plaintiff's psychological state was characterised as that of "common distress" which could be expected to resolve within 12 months if rehabilitation was successful. He stated that the Plaintiff did not appear to be unfit in the surveillance footage and would be fit for 10 hour shifts of 3 days per week in October 2014. He stated that the identified psychiatric disorder, being "somatoform chronic pain disorder with psychological features" was unlikely to explain the degree of incapacity to engage in employment and other life roles as there was not noted to be a significant "motivation" component. He stated there was marked illness exhibited in the examination but not in the surveillance footage and the most significant factor preventing the Plaintiff's return to employment was his illness behaviour. In conclusion, Dr Vickery stated there was no work-related psychiatric injury. He opined:- Medical liability Q2 "Mr El Kheir's symptoms are consistent with a diagnosis of somatoform chronic pain disorder associated with psychological factors (DSMIVTR 307.80) in which pain is reported to cause significant distress and incapacity and where there is the absence of significant underlying medical pathology to account for the degree of impaired functioning. The most common presenting symptoms are those of tingling, pain or of depression and numbness associated with comorbid symptoms of depression and anxiety and which is consistent with the symptomatology displayed by Mr EI Kheir. The development of Somatoform Chronic Pain Disorder is considered to be multifactorial in nature and is associated with dysfunctional personality traits, ineffective coping mechanisms, adverse life experiences, impaired relationships, a negative 'context ' of the circumstances of the injury and in which there is the development of incapacitating "illness behaviour and the adoption of the 'invalid" role. Somatoform Chronic Pain Disorder is psychologically embedded within abnormal illness behaviour where the symptoms and Incapacity are entrenched in the patient's lifestyle and relationships and are reinforced by continuing with ongoing intensive medical or supportive treatment in the absence of any significant recovery. Somatoform Chronic Pain Disorder is not utilised by the Motor Accident Authority or the Workers Compensation Commission in the assessment of permanent impairment (WPI) as Somatoform Disorders are not considered to be primarily related to the alleged injury. Mr EI Kheir's employment is not considered to be a substantial contributing factor in Somatoform Chronic Pain Disorder." [549]
Dr Vickery recommended that the treatment for the disorder was psycho-education followed by an active rehabilitation and return to work program as well as the cessation of ongoing "supportive" counselling or medical treatment which he notes can reinforce the "sick" role and perpetuate illness behaviour. In particular, Dr Vickery noted that participation in regularly scheduled activities despite the pain has a positive prognosis in comparison to allowing the pain to become the determining factor in significantly inhibiting both lifestyle and activity. Long term use of opioid analgesic medications was also shown to inhibit recovery and had been associated with substance abuse and dependence. Sedative and anti-anxiety agents were also considered not to be beneficial due to their adverse effects. [550]
The Plaintiff was seen by way of a follow-up examination on 7 August 2017, which was reported on 14 August 2017. [551]
In his report, Dr Vickery stated that in his opinion, based on all the information available, the Plaintiff's development of a chronic adjustment disorder is related to his particularly negative and unsubstantiated perception of events from the period following his injury to the present time, which was not directly due to any work injury. In this respect Dr Vickery stated:- [552] "In the report by Consultant Psychiatrist Dr Jeff Bertucen of 2 June 2017 it was noted "Mr EI Kheir recalls becoming extremely frustrated at the employer's allegedly negligent attitude and he had only been working for the employer about five days prior to the incident. He was very distressed and aggrieved that an ambulance was not called for him and instead he was seemingly 'dumped ' at home for his partner to take care of the problem. There was some initial insurer difficulties in acknowledging the claim and he states that he was further distressed when WorkCover payments (and treatment funding) were withdrawn in May 2015. This history provided by Mr EI Kheir to Dr Bertucen is inconsistent with Mr EI Kheir having only worked with the insured on 9 May 2014 and that he had allegedly sustained an injury within a few hours. In the Factual Report by Procare C&A Investigators of 11 June 2014 it was noted "Tetlow attended to Mr EI Kheir and noted that the injury consisted of a 'minor cut' which was not bleeding and about three or four centimetres in length. No first aid was completed and Tetlow stated the injury was 'very minor. The enclosed Injury Notification Form described the injury as 'a small 3-4cm cut shallow in depth and some localised swelling. No loss of blood.'" The history provided by Mr EI Kheir to Dr Bertucen was quite misleading as there was only a minor superficial skin injury suffered by Mr EI Kheir. Dr Bertucen concluded that 'Mr EI Kheir's current condition has been substantially caused by the subject incident and particularly the effects of pain and disability, chronic sleep disturbance secondary to pain, inability to return to remunerative employment, previous recreations and sports and dependence on his partner for previous mundane domestic tasks (ie loss of autonomy)." Dr Bertucen did not mention that there are a number of reports which substantiate there is no medical basis for Mr EI Kheir's symptoms or incapacity and he also did not address the absence of any incapacity in the surveillance which undermines the basis of his diagnostic formation and particularly in relation to the causation. The subjective symptoms reported by Mr EI Kheir would appear to fulfil all of the diagnostic criteria for Somatoform Chronic Pain Disorder with psychological factors (DSMIV 307.80). Dr Bertucen had also noted that a differential diagnosis in Mr EI Kheir's case would be "chronic pain syndrome" however did not give any indication why he excluded this condition in his diagnostic formulation. It was also noted that Dr Henry Lam and Prof Van fielder stated that Mr EI Kheir is suffering a psychological condition which affects his perception of subjective suffering which is consistent with a diagnosis of Somatoform Chronic Pain Disorder with psychological factors however this is not in their area of expertise. A diagnosis of Somatoform Chronic Pain Disorder with Psychological Factors does not however account for the apparent lack of any incapacity in the surveillance recordings and the lack of any medical basis for his complaints and the inconsistencies noted in his clinical examination, his presentation and the history provided. I disagree with the conclusions by Dr Bertucen that the Chronic Adjustment Disorder has been "substantially caused by the work related injury" as the primary symptomatology is alleged chronic pain and incapacity which has developed in the absence of any significant underlying medical basis and is not consistent with the injury, the expert opinion or the surveillance. I do however agree with the diagnosis of Chronic Adjustment Disorder which in my opinion has developed in relation to personal stressors associated with the unsubstantiated negative perceptions of Mr EI Kheir in relation to his employer, the insurer and WorkCover and which has been associated with significant financial stressors and marital conflict and which is not directly due to the incident of 9 May 2014. Mr EI Kheir's development of a Chronic Adjustment Disorder is related to his particularly negative unsubstantiated perception of events from the period following his injury and to the present time and that this condition is not directly due to the incident on 9 May 2014.

[34]

Dr Bertucen

On 2 June 2017, the Plaintiff was seen by Dr Jeff Bertucen, Consultant Psychiatrist at the request of his solicitors. Dr Bertucen noted that the Plaintiff complained predominantly of lower back pain and bilateral radiation down to the feet and occasional jolts of pain. He complained of dizziness upon movement which was aggravated by changing position quickly and showering. He complained of bilateral temporomandibular joint pain due to clenching of the jaw at night. He was unable to perform any domestic tasks although there was a secondary psychological component of demotivation. He noted that he was able to drive independently but became stiff and sore in the lower back after 15 minutes and walking was limited to 20 minutes before pausing to have a break. He further noted that the Plaintiff denied any history of pre-existing or underlying psychiatric condition at the time of the accident, nor any significant competing psycho-social stressors. Since the accident, he noted that the Plaintiff had become extremely frustrated by his employer, declined in mood, lack of exercise and became despondent at not picking up and playing with his son. He reported a considerable "loss of face" at not being able to provide for his family and was demoralised at having to rely of his wife, Samara for virtually all domestic tasks including heavier or traditionally "male" tasks of mowing the lawn and taking out garbage bins. [553]
Dr Bertucen noted the Plaintiff sought medical interventions quite early after the injury and consulted his general practitioner and was prescribed anti-depressants. Dr Bertucen found that the Plaintiff had signs indicative of severe or extreme depressive symptomatology. He described his mood as "depressed, hopeless and pessimistic" and this was reflected by the mood-congruent Beck Depression Inventory score, although the Plaintiff was capable in certain instances of dry humour throughout the interview. [554]
Dr Bertucen found that the Plaintiff was suffering from a psychological condition which affects his perception of subjective suffering. He noted that his mood plunged quickly following the accident to the extent that he received anti-depressant medication and received a psychological referral within 3 weeks. He stated that in his experience, this was usual as for the first few months, the standard mindset is geared towards rehabilitation and recovery. Recent best practice in the area of pain management, typically incorporates psychological therapy and support out of a recognition that improvement in morale and confidence can often assist people in dealing with their expectations of recovery more realistically and to carry on more effectively despite the presence of pain. He observed that the level of demoralisation and apathy, secondary to his psychological condition caused significant impairment of the Plaintiff's ability to perform even basic or light pre-injury domestic tasks such as light tidying, dusting, packing away items or light cooking. [555]

[35]

Conclave

Following a conclave between the two psychiatric experts, Dr Bertucen and Dr Vickery, a joint report was produced, dated 22 August 2017. [556] In that report, Dr Vickery was of the opinion that the Plaintiff had an adjustment disorder, whereas Dr Bertucen was of the view that the Plaintiff had a chronic adjustment disorder with features of depressed mood. Dr Bertucen in his oral evidence described the substantive difference between these two conditions stating that by their definition, adjustment disorders can be either non-chronic or chronic if the features last for more than 6 months and the characteristics of the disorders vary in nature - either characterised by features of depressed mood or anxiety or mixed emotions and sometimes all three. [557] He stated that he felt that there was compelling evidence, not only from the Plaintiff but also from his partner, that prior to the incident, there were no features of depressed mood, however subsequent to the incident on 9 May 2014, he began to develop disturbances in mood, with a low flat mood, constant ruminations about his employer's alleged attitude, perceived lack of care, appetite disturbance and loss of motivation to exercise. He also noted a loss of interest in socialising with friends and family, disturbances of sleep which were contributed to by the effects of pain and the inability to interact physically with members of his family because of the pain which gave him a great deal of distress. [558]
Dr Vickery accepted that the features identified by Dr Bertucen would amount to an adjustment disorder with depressed mood except the lack of interaction with family members, if that included the Plaintiff not being able to lift or play with his son. Dr Bertucen accepted that this would not be included. [559]
Next in the conclave report, Dr Vickery expressed the opinion that the Plaintiff's adjustment disorder was related to his negative perceptions of events since the injury, whereas Dr Bertucen was of the opinion that the disorder had been substantially caused by the physical effects of the Plaintiff's accident of 9 May 2014. In particular, unresolved pain, secondary sleep disturbance caused by pain, ongoing physical restrictions related to pain which prevented him from returning to employment and engaging in previous activities and interfered with his functioning.
In oral evidence, Dr Vickery was questioned with respect to his understanding of the physical injury that the Plaintiff sustained. He said that his understanding was a laceration of 3-4 cm, it did not bleed; and there was some swelling locally. It was put to him that if the description were elaborated upon so that it was more severe, and involved bleeding and investigations in relation to the head and CT examination to see if there were fractures, his opinion would differ. Dr Vickery responded that he had read the reports that he had available and that was not substantiated. [560]
Dr Vickery stated that if the accident caused a condition involving unresolved pain leading to the secondary sleep disorder caused by pain and ongoing physical restrictions, it was less in the area of psychiatric specialist, but more in the area of a pain consultant. His evidence was that you then are referring to a somatoform disorder and not talking about a chronic adjustment disorder. [561] He stated that once you say that a person had pain, then you have to determine what the cause of the pain is and what you are actually referring to is their perception of pain and it is the reaction to that pain perception that causes psychological disturbance, not in so much as separate identity called pain. [562]
Dr Vickery maintained the view that the Plaintiff's adjustment disorder was a reaction to the way he was treated by his employer, but added that it was also malingering. [563] He did not regard the accident and the physical injuries that have emanated from it as a contributing factor to his subsequent presentation. [564] This he said, was because of the many reports from specialists who stated that they do not relate to each other. [565] He stated that even absent those medical reports, he would not concede Dr Bertucen's opinion as to the cause of the diagnosis. [566] Dr Vickery accepted that his examination of the Plaintiff revealed a psychiatric or psychological condition on the basis of the reports and that fact that the Plaintiff sought psychological attention within several weeks of the accident which was unusual. He opined that it would appear that it was the predominant cause of the onset of his psychological problems. [567] He said that the surveillance was significant because it showed no abnormality, whereas in examination, there was gross abnormality which was reported in all the reports, not just his own. [568]
Dr Vickery maintained that in the surveillance he observed no abnormality. He said he noticed him sitting in café and interacting, he believed, with a few people. When it was suggested to him that he was not interacting with anyone, he accepted that. Dr Vickery maintained that he did not see features in the surveillance consistent with neck and back injury. [569] He stated that if some physical disability or pain was exhibited, then the question of whether that was abnormal pain was a question of degree. He said in his examination he noted gross pain behaviour and if there was just a bit of pain behaviour, then that was quite different and went back to the question of incapacity. [570]
Dr Bertucen stated that the adjustment disorder had been substantially caused by the physical effects of the Plaintiff's accident due to unresolved pain, secondary sleep disturbance, ongoing pain that has prevented him from returning to employment and engaging in his previous activities and functioning. [571]
Dr Bertucen opined that there was distinct contrast between the Plaintiff's mental state and psychological functioning before and after the injury, not only according to himself but also according to his family. He stated that it was difficult to accept malingering or fictitious disorder for a period of 3 years since the accident. He stated that if one looks at the conduct of the Plaintiff experience of financial hardship, matrimonial strain as a result of no income and difficulties in managing physical tasks around the house, then as an assessing psychiatrist, he has to ask himself whether there was sufficient motivation for a person to keep up a fictitious act over a period of three years rather than turn to employment.
In addition to that, Dr Bertucen opined that Dr Van Gelder assessed the Plaintiff suitable for inclusion in multi-disciplinary pain management programs which did not eventuate. The fact that he was judged to be significantly affected as to warrant inclusion such programs would by definition, meant that he sustained a physical injury sufficient to generate a secondary psychological condition. In his view, the presence of depression can enhance a person's suffering and consequent pain and the Plaintiff's physical injuries were judged by specialists as being of sufficient severity to be likely on the balance of probabilities to result in psychological injury. [572]
Dr Bertucen added that in the first few months after the injury, the Plaintiff was prevented from persevering in his work, not only by his pain but also by perceived dizziness and ataxia, which would have been enough to compromise him in his work as a form work carpenter, involving climbing ladders and working at heights such that his symptoms that might have led to a psychological condition in combination would have made it equally difficult, if not impossible to return to his previous work. [573]
Dr Bertucen accepted that he only had the opportunity of reviewing the patient on one occasion which was very much akin to a snapshot. Nevertheless, he said that in coming to a conclusion, he had the opportunity to rely on the material in previous examinations by other psychiatrists and also the presence of family members which in the Plaintiff's case consisted of his partner, who was present at the time. [574] He stated that he accepted that history as provided to him including denials of any competing psychological stressors. [575]
He was taken to the GP's notes which showed that from 2014, prescriptions of significant amounts of medication being prescribed on a fortnightly basis. He accepted that that must have indicated that the GP must have considered that the Plaintiff was complaining of a condition that warranted a prescription of such medications. [576] He was then shown PBS records [577] which showed that on 22 August 2014, one script was provided for Mirtazapine, which was an anti-depressant. [578] He stated that he understood that the Plaintiff commenced on anti-depressants a short time after the injury and that he continued for a short time for about four months and ceased it because of weight gain. He said that the PBS records show that he had only had anti-depressants filled in once on 22 August 2014 with one repeat and no other medication until January 2017. [579] Dr Bertucen said in his report that at the time of the examination, the Plaintiff was taking four medications including Lyrica and Cymbalta which did not appear on the schedule. [580] He accepted if that was the sole record of medication prescribed then he would admit that the information that was provided with at the time of his examination would not be correct. [581] Dr Bertucen said despite this, it would be unusual for a patient to commence a new anti-depressant medication unnominated and he would be uncertain as to where the patient would have got information to tell him that he was taking Duloxetine. He also noted that Naproxen was recorded on the schedule as having been obtained in May 2017, within a few weeks of his examination in June 2017. [582]
Dr Bertucen also accepted that the PBS records showed that for two and a half year between 2014 and 2017, no prescribed medication for pain though Tramadol was noted as having been prescribed from January 2017. [583] Dr Bertucen accepted that if in fact the Plaintiff wasn't on medication and had taken very little medication in the three year since he had seen him, then it would cast some doubt on the veracity of his complaint. [584]
Dr Vickery stated that the inconsistency as to terms of the patient's medication used would substantiate his diagnosis that the Plaintiff was malingering with a view of secondary gain. [585]
Dr Bertucen conceded that he was not informed either by the Plaintiff or his partner that he had suffered from hearing loss and tinnitus before the accident. [586] His attention was drawn to a reference in the GP notes of 24 February 2014 to hearing loss. [587] He conceded that that was not something he had noticed. [588] He also conceded that he had been informed of the opposite by the patient. [589] He was then shown a report from the national hearing centre dated 5 June 2013. [590] Dr Bertucen conceded that he not been informed of these matters - that he suffered hearing loss and tinnitus before the accident. [591] He accepted that one potential explanation for the Plaintiff complaining of pain and depression, telling the doctor that he is taking medication and requesting it but not taking it was a lie. Dr Bertucen stated that was one potential explanation. [592] Dr Vickery agreed. [593]
Dr Bertucen stated in cross-examination that he was not aware that the Plaintiff had worked during the period leading to his report. [594]
Dr Bertucen stated the resolution of the proceedings has not in all instances, even if there is a successful outcome, resulted in the benefit from the ending of the Court case, stating that the litigant can be so psychologically exhausted that they are unable to derive pleasure or joy from the outcome even if it is favourable to them. Dr Vickery agreed with this in the case of Chronic Somatoform Disorder but not where a person was malingering. [595]
Dr Bertucen was then shown the contents of Exhibit P, being the Patient history from 1 January 2014 to 22 August 2017 of purchases from the Night and Day Chemist at Wentworthville. Dr Bertucen accepted that on the basis of this document, taking medication in accordance with it would reinforce his conclusion that he came to in his report and his joint report. [596] That document does on its face identify purchases over a period, including anti-depressants and prescribed pain medication. Dr Bertucen accepted that the Plaintiff appears to have filled out more than on the original PBS schedule. [597] He stated that the first mention of Anti-depressant medication in that document was in November 2014 and then January 2015. He accepted that this was inconsistent with what the Plaintiff told him during his interview, that he was taking medication currently but at least, there was an appearance of that medication, whereas it was completely absent from the record in the PBS schedule. [598]
In his joint report, Dr Vickery opined that there was no psychological/psychiatric caused by the accident whereas Dr Bertucen considered that the Plaintiff would benefit from 4 to 6 visits from a consultant psychiatrist, continuing sessions with his psychologist over the next 4-6 months and some form of psychiatric therapy over the same period to off-set his depressive symptoms. In terms of employment, Dr Vickery was of the opinion that the Plaintiff was not psychologically or psychiatrically capable of returning to pre-injury employment and Dr Bertucen agreed with this opinion. Dr Vickery however was of the opinion that the Plaintiff was capable of full time employment in relation to the incident of 9 May 2014, however, his non-work related chronic adjustment disorder restricted him to employment of 20 hours. Dr Bertucen referred to his original report of 2 June 2017 and was of the opinion that at the time of interview, the Plaintiff was psychologically incapable of gainful employment for the foreseeable future. [599]

[36]

Conclusions on Psychiatric/Psychological Injury

The Plaintiff has not produced the records of Ms Zaarour psychologist and has not had psychiatric treatment. Whilst I was informed that reference in detail would be made to Ms Zaarour [600] none was forthcoming.
I accept that the Plaintiff has engaged in malingering. Such in my view is apparent not only from the surveillance but also from the variations in the examinations observed by Dr Bodel and the testing results of Dr MacMahon. Dr Bertucen did not comment on the surveillance nor the observations made by the medico legal specialists as to their findings.
Dr Bertucen accepted that the Plaintiff suffered from an adjustment disorder with features of depressed mood. Dr Vickery accepted that the Plaintiff had an adjustment disorder and that features identified by Dr Bertucen would amount to evidence depressed mood. The principal area of difference was the cause of this condition.
Dr Bertucen's opinion was the Plaintiff's pre accident history, the significance of the injury suffered by the Plaintiff, a history that the Plaintiff had not worked substantively since the accident, no hearing loss and tinnitus before the accident and the Plaintiff's medication use. On virtually all these matters the facts disclosed otherwise than as he had been informed.
Dr Bertucen's opinion as to the significance of physical injuries were based the Plaintiff being referred to a pain management programme. I cannot accept that this is an appropriate basis to determine the significance in the circumstances of this case.
Nor do I accept that the severity of the injury is to be assessed according to the level of investigation irrespective of the findings that follow. In this case consistent with my findings the injury the Plaintiff received was somewhat greater than that described by Dr Vickery. Nevertheless I cannot accept that it was as significant as Dr Bertucen described and the difference is not such as to ultimately undermine Dr Vickery's opinion.
Dr Bertucen also noted that subsequent to the incident on 9 May 2014, the Plaintiff began to develop disturbances in mood, with a low flat mood, constant ruminations about his employer's alleged attitude, perceived lack of care. This corresponded with the conclusion of Dr Vickery that the Plaintiff's adjustment disorder was a reaction to the way he perceived himself being treated rather that a reaction to the his injuries. Both Doctors remarked on the unusual feature of the Plaintiff being referred for psychological treatment shortly after the accident.
In all of the circumstances I prefer the evidence of the Dr Vickery. I am satisfied that the Plaintiff's adjustment order was not caused by his injury but rather to his unsubstantiated perception as to how he was treated. The Plaintiff did not argue that an acceptance of Dr Vickery's evidence in preference to Dr Bertucen the Defendant would have been liable for any psychological or psychiatric injury. In coming to this view, I do not attach any weight to the opinion on the material significance of the Plaintiff's injury to the development of psychological incapacity expressed by Dr MacMahon. This falls outside expertise of a psychologist.

[38]

Pre Accident Earnings

The Plaintiff gave evidence he completed a Diploma in electrical work at a Technical College in Lebanon and worked part time in his family's business; a bakery. He stated that he migrated to Australia on a Student Visa and commenced a Hospitality Management course at the Illawarra Business College, but did not finish the course because the College closed down. The records tendered including his own statutory declaration however show the Plaintiff did not complete the course requirements. [602]
The Plaintiff said that while studying, he worked part time in form working. Shortly after stopping the hospitality course he said he transferred onto a visa that allowed him to work full time and since then he worked full-time for a number of different formwork companies as a form worker. [603] In oral evidence he stated that he had not been out of work between 2010 and the accident. [604] He stated that his intention was to continue to work as a form worker until retirement age. In oral evidence, he added that he was thinking about going to TAFE to "do lesson as a carpenter," "do lesson as a foreman" and that he would "like to be a builder." [605] However, he acknowledged in his statement that he did not speak English very well, had limited ability to read and write English and had only basic understanding of how to use a computer. [606]
The Plaintiff's evidence was that he worked full time as a form worker between 2010 and 2014. The Plaintiff's visa status shows that he had work limitations until 23 October 2012. He had no conditions on his visa between 23 October and 30 September 2013, a no work requirement between 30 September and 21 January 2014 and thereafter had no conditions. [607]
The Plaintiff produced no records of his bank accounts for the period before his St George account which commences on 10 March 2014. He said that he did not recall what account he had and had not been to the bank to get bank statements which existed before March 2014. He also had not produced documents evidencing his earnings prior to May 2014. [608] Ms Adams stated she did not know with what bank, the Plaintiff was banking before March 2014. [609] She then added that he opened an account a month before the accident as they were intending on saving for a house [610] but she did not know that he had a bank account before then. [611] There was evidence of the Plaintiff recording another account number to those which he produced records of for purposes of his 2014 tax return. [612]
The Plaintiff's tax records as tendered show:- [613] 1. No evidence of a tax return for 2010 or 2011; 2. A return was lodged for 2012 which noted a taxable income of $10,240; 3. A return was lodged for 2013 which noted a taxable income of $10,550. According to correspondence sent on 29 September 2013 to the Plaintiff's accountant by his solicitors (in this matter) the Plaintiff earned $1,500 per week from 14 May 2013 to 30 June 2013 working on a contract basis with formwork specialists. 4. A return was lodged for 2014 which noted a taxable income of $3,921. This was amended in October 2014 to declare an income of $44,421. This was on the basis of the same solicitors advising the Plaintiff's accountant on 29 September that the Plaintiff's previously declared earnings of $3,921 came from earnings with Greenform. The solicitors instructed that the Plaintiff in addition worked on a contract basis form 13 May 2014 to 2 August 2013 and from 16 September until 28 February 2014 and was paid $1500 per week.
The Plaintiff was cross examined at some length about his tax returns. He stated that in the year ended 30 June 2010 he earned roughly $30 per hour or $600 for 20 to 22 hours a week. In 2011, he stated that he remembered working for D & G and RNZ. [614] He stated that he worked fulltime for around 48 weeks. [615] He said that he didn't remember if he filled in his tax return for this year or 2011 [616] however everyone he worked for didn't give a tax certificate and he was desperate for work. [617] Subsequently, he stated that he forgot. [618]
In 2012, the Plaintiff stated that he worked fulltime for 48 weeks. [619] The Plaintiff could not recall who he worked for stating that he worked for many companies. He stated that the declared income amount was put in by the person who filled in the tax return [620] based on the paper that he was provided with. [621] It was difficult to follow the Plaintiff's explanation of his earnings but he appeared to suggest he received $500 per week net. [622]
In 2013, the Plaintiff stated that he worked for Specialist Form fulltime. The
He accepted that his weekly wage suggested earning over $40,000 a year [623] but blamed it on the company. [624]
In 2014, the Plaintiff stated that he worked fulltime up until the accident. Plaintiff rejected the suggestion that he had not been working before contacting Mr Hbouss, asserting that he had been working for Specialist Form [625] for more than one year. [626] He conceded however, that he did not have any documentation to support this as he was paid in cash. [627] He said that in amending his return he wanted to fix up his mistake. He said the figure is what the accountant did. [628] At first, he accepted that he stated that he earned the money in his own business [629] but later stated that he did not recall [630] and subsequently that he didn't use an ABN [631] having stated that "no one give me job again." [632]
The Plaintiff rejected the suggestion that after he commenced the case in October 2015, he lodged the amended tax return for the year ended 30 June 2014 so he had a document that he could rely on that he had been earning money prior to his accident. He stated that he was trying to fix his mistakes and he knew his obligation to pay taxes and when he found out he got somebody to amend and fix and help him put in the proper amounts. [633]

[40]

Youssef Nassif

Mr Youssef Nassif was called in the Plaintiff's case. He identified that he owned the company referred to as Edessa NSW Pty Ltd. He stated that he knew the Plaintiff through his brother Khaled, who worked for him as an Apprentice Carpenter and he also knew the Plaintiff's cousin who had done work for him and for other persons in the industry.
According to Mr Nassif, sometime after Christmas of 2016 and probably in January 2017, the Plaintiff came with his brother a couple of times to work and his brother said that he just wanted to get out of the house. After a second or third visit, the Plaintiff asked if he could do some part time work with him. He said that he used be a good worker, but that he had an injury, had a lot of industry experiences, was happy to supervise things for him, fetch things and do some general cleaning work as well as point things out to apprentice workers and guide them. [636] Mr Nassif stated that he showed some photographs of his children and told them that he was under a lot of financial stress and consequently he offered him to work a few days a week and the Plaintiff told him that he could not work more than half a day at a time. [637] He agreed that he would work 3 days, 4-5 hours a day and he would pay him $450 per week. [638]
The Plaintiff started work and Mr Nassif stated that he could see him on the site in the morning stretching and he looked to be in pain. On one occasion, the Plaintiff showed him where he had an injection for pain relief. He employed him because in his view, he worked with his family and they were trustworthy. Whilst he was working, he identified that he would sweep debris on the site, collect tools, erect safety rails, mark out columns, keep an eye on staff and give them pointers and let him know if there are any major issues and take nails out. [639]
Mr Nassif stated that the job that they were working on was at Meadowbank and when the job came to an end, he told them that there was no more work available and that he could not keep him on. [640] He said that he was glad the job had come to an end and that he didn't have to employ him any further because the Plaintiff was not able to do much, often looked as though he was in pain and it was clear that he was struggling with the work. He said that he took breaks and slept in the car, stopped work early and waited for his brother to drive him home. He stated that he did not ask the Plaintiff to do any heavy work, it was all light duties that he could see and even those duties were too much for him and he was not a satisfactory worker. [641] Mr Nassif said he could not record exactly how long the Plaintiff worked from but it must have been four or five months and his wife does the paperwork. [642]
In cross-examination, Mr Nassif stated that he paid Khaled El Kheir around $600 a week for between 21 and 23 hours a week. [643] At first, he stated that he paid an apprentice at $28.00 an hour. [644] Later he stated that employees were paid $28 per hour. [645]
He stated that when he took on the Plaintiff, he was not looking for someone. [646] He stated that he agreed to pay him more than he was paying the Plaintiff's brother because he knew the business and could identify mistakes. [647] He stated that the Plaintiff would sometimes be asked to drive if he needed to pick up someone or he had to send him to another job for his cousin or because a tool or piece of equipment was required. He stated that he paid around $30 to $32 per hour. [648] He stated he had workers working and he supervised them and they would do work for him. [649] Generally, he described the Plaintiff doing light work, but he conceded that he was not there all the time that the Plaintiff was there. [650] He said he only hired him for a short period, because he had to do an operation himself. [651] He said that Plaintiff sometimes came in and said that he could not work. [652] He stated that Plaintiff had a desire to work but at the end, was not able to do much, he gave him easy jobs but he could not do much of it. [653]

[42]

SC Form - Khaled El Kheir

The Plaintiff's brother, Khaled El Kheir was called to give evidence. In his statement he said they migrated to Australia in January 2016 and married in February 2016. He stated that he had no qualifications but worked in the construction industry in Lebanon and when he arrived obtained a white card approximately one month after arrival.
Mr Khaled El Kheir's evidence was that when he arrived in Australia, he got a job working for Youssef Nassif as a Form Worker being paid $600 into his account and $1200 cash a week. [658]
He stated that he left Edessa NSW Pty Ltd in March 2017 when he obtained a positon with a Company known as Supercharge Formwork which was owned by Mr Elie Dib. [659] According to his statement, he was required to set up a company known as KE Formwork Pty Ltd and charged Mr Dib's company $45 per hour + GST for himself and another worker. He described this person as "Osman the Sudanese". He said that he worked for Supercharge Formwork through his company for 2 months, effectively charging $90 + GST per hour working 8 hours per day, as did Osman, 6 days per week, but would only pay Osman $220 per day. In all, he asserts that he charged Supercharge Formwork approximately $38,000. He stated that on 22 May 2017, he transferred $450 from his account to the Plaintiff's account as the plaintiff asked for some money. He said that this was not for any work that the Plaintiff had performed and that the Plaintiff had in fact never worked for him. He stated that he transferred the money because the Plaintiff was in need of financial assistance. [660]
In relation to the deposits recorded in the Plaintiff's account from SC Formwork, he stated that two payments were made directly to him being for $15,000 and for $7,000 and the balance being approximately $16,000 was paid by Supercharge Formwork directly to his brother, the Plaintiff at his request. He stated that he asked for this to occur, because he wanted to make sure that his brother was financially secure and did not want money to come into his account because he did not want to have any issues with his wife as they argued for time to time about him lending money to his brother. He stated that he knew that the amount of money would be enough to last the Plaintiff a while and to clear some of his debts and would give him a period of grace from arguments with his wife. [661] He stated that this was not the only money that he had given his brother, but generally when he withdrew money from his account, he gave it to him in cash. [662] He stated that the reason he set up KE Formwork Pty LTD was because Mr Dib did not want to employ him directly. Eventually, he did not continue with Mr Dib. [663]
In cross-examination, Mr Khaled El Kheir stated that he would give Mr Dib an invoice, [664] however Mr Dib would not give a document confirming the amount that he was paying. [665] Instead he stated that Mr Dib would pay the money in the account. [666] Mr Khaled could not identify the person who worked for him except by his Christian name, "Osman". [667] He stated that he didn't know if Osman had white card, but if the builder saw that he did not have one, he would not let him on the site. [668] It was put to him that he was making this up, however he rejected this. [669] Mr Khaled was asked about filling in a GST form, however he stated that he went to his accountant and told him that he didn't want to work anymore and "he did everything". [670] Though he stated he had some paperwork with taxation at home, none was ultimately produced. [671] Mr Khaled maintained however that the company did not give him any record that they were giving him GST money. [672]
It was put to Mr Khaled El Kheir that he didn't really work for Supercharge but rather his brother did, however these propositions were rejected. [673] He stated that he did not have a document from Supercharge, evidencing that they paid money into his brother bank account. [674]
Mr Khaled El Kheir stated that he contacted Osman through someone else who knew him, but he no longer had his telephone number as he had deleted it since they stopped working together. He stated that he does not know where he lives and does not know his full name and has no paper work which he could bring to court which shows that he ever employed him. [675]
After he left Supercharge, he stated that he worked from Khaled Diab for 20 days, but Osman did not go with him. [676] He stated that relationship ended in the third week of June, [677] and thereafter he worked with the BKH Group and was paid wages. [678] Payslips in relation to this employment were ultimately tendered. [679] Mr Khaled El Kheir stated that the first time he received any documents from anyone that he worked for in 2017 is when he received the payslips from BKH Group. [680] In his statement, the Plaintiff stated that the job was an organisation known as Precise Structure NSW Pty LTD which was part of the BKH Group, although Exhibit O states that it was with Scafform Pty LTD with an annual salary of $74,024.20. [681] Mr Khaled El Kheir could not confirm whether he had filled in a tax return for the year ending 30 June 2017. [682]
In producing the documents [683] Mr Khaled El Kheir stated that he was not able to locate documents evidencing any work that he did in 2016 or 2017 before commencing with BKH, [684] nor any documents evidencing his employment of Osman. [685]
Mr Khaled El Kheir maintained that since starting with BKH Group, he continued to assist his brother financially in cash. [686]

[43]

SC Form-Mariah Adams

Mariah Adams was then questioned about payments deposited in the Plaintiff's account from SC Form. She reiterated that this was money that came from the Plaintiff's brother who organised for his employer to have the money paid into the Plaintiff's account. [687]
Ms Adams was asked about a payment that was made on the Plaintiff's Westpac account to a "Youssef Na" on 29 June 2017 for $900 [688] despite the fact that this was an account that she stated that she was operating, she was unable to explain the payment, [689] but Ms Adams stated that it would not have been the Plaintiff who deposited the money. [690]
Mr Nassif's bank statement indicates that this was credited to his account from the Plaintiff. [691] The Defendant submits that there is no explanation as to why the Plaintiff paid a person $900 with whom he is said to have had no relationship at the time. [692] On 5 December 2017 Defendant sought to recall the Plaintiff to explore the matter to him. [693] I declined to allow it. [694]
In relation to 3 deposits between 12 and 17 July 2017, totalling $6,350, [695] Ms Adams stated that she got that from the government [696] and deposited it into the account. [697] In relation to a deposit on 12 July 2017 into the Plaintiff's account in the sum of $494.10 from "A El Kheir," she stated that this was the Plaintiff's brother who was putting who was putting the funds in and organised for the Company that he was working in to deposit it into the Plaintiff's bank account. [698] Ms Adams' account was that was half of the wage of the Plaintiff's brother and that he would have organised this with the Company. The pay slip from Mr Khaled El Kheir was tendered. It identifies the Plaintiff's brother as Khaled, not "A El Kheir." Beyond that, there is no identification in either of those payslips of payments made to the Plaintiff from the Plaintiff's brother's earnings. Relevant payment dates were by EFT on 9 July 2017 and 18 July 2017. It was put to Ms Adams that she was making this story up and that the Plaintiff was working, however she rejected this. [699]

[44]

Further Evidence as to Accounts

Ms Adams stated that in terms of bills, she would pay those from the Plaintiff's account to which she had access. [700] She stated that she had possession of a card linked to that account and she would use that for payment of living expenses. [701] She stated that whilst she'd go to family restaurants, she would not go with the Plaintiff. [702] She stated that she received money into her own account from Centrelink and would deposit the monies into the Plaintiff's account. [703] She said that she received $1,500 dollars per fortnight from Centrelink and that she transferred money on a weekly basis. [704]
Apart from the money she received from Centrelink, she stated that she stated received money from family, in particular from her brother, the Plaintiff's cousins and his brother. [705] She stated that when she needed money she would ask and they would help. [706] She stated that the money came from family and friends - whoever can help.
In cross-examination, Ms Adams stated that since 2005, she had been in receipt of social security benefits and had not worked. She conceded that prior to meeting and moving in with the Plaintiff she had her own handy card, being with St George Bank. She gave evidence that her social security payments were deposited into her St George Bank account and added, since 2014 she transferred payments that she received into her St George Bank account into the Plaintiff's bank account every week. According to her evidence, she did this because the processes on the Plaintiff's Westpac account were much easier to operate. She stated that although there is internet banking on St George, she did not like it and that the Westpac one was the one that she used. She conceded that if this arrangement was as she described, there would be a record of her withdrawing monies from St George and depositing it into the Plaintiff's account. [707]
Initially, she stated that between 2014 and 2017, the Plaintiff never used his own debit card [708] and that every record on the Plaintiff's bank statement was evidence of her using it. [709] She stated that the Plaintiff used cash when he went out driving, [710] stating that she had the card and he did not need it. [711] She was then asked about the period during which the Plaintiff was working for Edessa, and responded that she would have the card the majority of the time. [712] She then qualified this by stating that he would need to use the card, as far as she was aware, when he went to the doctors. [713] She stated that she used the Plaintiff's card when she did the weekly shop [714] and that she used direct debit from her account for childcare and also for the gym. [715] Ms Adams stated that before the accident, she was not transferring her social security money into the Plaintiff's account. [716]
The question of the use of the accounts was revisited later in Ms Adams' evidence. Specifically she was asked to look at the bank statements for her St. George account and to point out where it was that she would transfer money from her social security account into the Plaintiff's account. [717] She stated that she had another account which was a joint account with St George and that the money went into that account, she then withdrew it out from that account and sometimes deposited it into the Plaintiff's account. [718] When she was asked why she would do this, she stated that it was because the St. George account that she had was an old account that did not support Pay Pass, but the joint account did. [719] She stated that sometimes she would transfer the money into her joint account and other times into the Plaintiff's account. [720] She was then asked whether $750 would be transferred into the Plaintiff's account or the joint account every week and she said sometimes, adding:- "… like if I'm - I pull out the money. If I don't transfer into the joint account, then I will be pulling out the money and depositing it, putting it into the Westpac ATM."
When questioned about purchases made on 7 November 2016 at the Beanbag Café, using the Plaintiff's account on the same day as she made purchases at McDonald's from her St George account, [721] Ms Adams stated that they were both purchases made by her because she likes to use both accounts. [722] She rejected that the Plaintiff would be using the account sometimes, stating that he would normally carry cash that she provided. [723] She stated that the Plaintiff did not go anywhere, however during the week said he was working, he would probably take $20 - $30 and take food with him. [724] Ms Adams was then questioned about purchases made on 28 November at Big W and IGA using her St George account on the same day as purchases were made using the Plaintiff's Westpac account. [725] She reiterated that she had both cards and that she used each of them. [726] She similarly confirmed that this was what happened on 22 December 2016 when the Plaintiff's account showed purchases made at Oporto, Amby's Big Apple and Mc'Donald's. [727] She reiterated that she used the same cards on different dates. [728]
The transactions on Ms Adams' St George account during the period where the Defendant draws attention to the transactions also occurring on the Plaintiff's Westpac account coincided with low balances in the St George account. It is open for the Court to accept that Ms Adams was using both accounts at the time, depending upon the sufficiency of funds in the St George account.
Next, Ms Adams was questioned in relation to withdrawals from the Plaintiff's account as follows:- 1. $2,350 on 1 September 2014. [729] 2. $2,500 on 5 September 2014. In relation to both of these withdrawals, Ms Adams stated that she has withdrawn sums of cash because she needed things. [730] She then stated that this was many years ago and that she does not remember. [731] When she was asked whether she was sure it was not the Plaintiff who was removing the money, she questioned as to why he would need to, she did not remember and reiterated that it was probably her. [732]
Ms Adams was asked a sum of $1,500 withdrawn on 14 July 2014. [733] She again stated that she could not remember. [734]
On 21 July 2014, $1000 was withdrawn. Again she could not remember. [735]
Ms Adams' attention was then drawn to deposits made into the Westpac account being $3,800 on 6 August 2014. She stated that it was maybe from a family friend and thought it might be the Plaintiff's cousin who she described as a generous person. [736]
Her attention was also drawn to $2,590 deposited on 29 April 2015. [737] She stated that the Plaintiff's cousin again gave that money but she took $10 out to have coffee. [738]
A further sum of $1,800 was deposited on 11 May 2015 which she also said would be from the same cousin. [739]
Ms Adams' attention was also drawn to $6,600 which was deposited into the Plaintiff's account. [740] She stated that this would be from the Plaintiff's uncle. [741] She stated that the money deposited, around $10,000 in cash in April and June, she did not think was a gift, but had to be repaid. [742]
Ms Adams was next questioned about a deposit of $3,000 from her account into the Plaintiff's account on 28 July 2017. [743] She stated that these were funds from her St George account which came from a child care rebate. [744] A sum of $9,000 was also recorded on 19 July 2017 [745] and she stated that that was money that she deposited from social security. [746] She did not know why she made two withdrawals of $500 on 17 July 2017. [747]

[45]

Conclusions as to Loss of Earning Capacity

The Plaintiff's counsel submitted that the Plaintiff is an unsophisticated person when it comes to attending to his tax obligations. It was argued that it may be inferred from the Plaintiff's evidence and indeed others that the system of recruitment and payment for workers in the construction industry, particularly form workers and steel workers is far from compliant with the recording of financial details such as employment, payment of wages, retention of tax and retention of GST. It was suggested the matter should be viewed in the context the employment of migrant workers, new to the country and with limited English skills and knowledge of their financial and social responsibilities concerning tax and the like. It argued the evidence in the case illustrates cash payments being made and little or no records being kept. [748]
Plaintiff had claimed an earning capacity of $250 to $300 per day and a loss of $1500 net per week since the accident. [749] In its schedule of damages presented at trial the Plaintiff's claim for loss of earning capacity was based on the sum of $1366 per week from 9 May 2014 to date and less earnings of $4949 when he was working for Edessa. A claim for future loss of earning capacity past and future superannuation is similarly based on a loss of $1366 per week. [750]
In written submissions the Plaintiff asserted that he was capable of earning $300 per day 5-6 days a week uninjured. It was argued that this was an appropriate measure of the Plaintiff's economic capacity and that this figure is not discordant with average weekly earnings. Another means was to consider the earnings of the Plaintiff's brother Khalid, albeit that involved continuous employment. [751] It was acknowledged that the Plaintiff would not be in employment each and every week and it may not be possible at the conclusion of every project to walk into employment in another project. It was submitted that the Court could assess damages for future economic loss by way of buffer, but in any case, past and future economic loss should be assessed on a similar approach to ensure that there is consistency. [752]
In closing submissions, the Plaintiff advanced an argument for the use of a buffer for past and the future economic loss that:- "As far as economic loss is concerned, there is much to be said for a non-arithmetical or empirical approach. It is a case that probably would be best dealt with by way of a buffer, which would take into account the vagaries of employment in the plaintiff's industry, form working, that his past work record, at least as far as his declared income is concerned, would suggest that there are periods between projects. And if your Honour were to award a buffer, your Honour would take into account that in all likelihood these would be cash payments and there wouldn't be a superannuation component in relation to those. If your Honour chose to deal with the assessment of economic loss in the past by way of a buffer, it probably would follow at least achieving consistency, that your Honour would apply such an approach for the future. We have provided some figures which pre-supposes that he would be absolutely unemployable for the remainder of his working life. That may not be a conclusion that your Honour would feel comfortable with, but we have put it there because it is consonant with the medical evidence, with the prognosis of those that have examined him on both sides, save for Dr Vickery, that he is probably unemployable. Although from a physical perspective we would concede that both Dr Bodel, Fearnside and Professor Jones say there is some residual capacity. So those are vicissitudes that your Honour could take into account." [753]
The Defendant submitted that the Plaintiff after his case started filled in a tax return for 2013 and an amended return for 2014 to say that he earned $40,000. The amended return did not note any payer and the ABN number was his own, indicating that he earned it as a contractor. Yet no document has been produced to demonstrate his earnings or work. The submission advanced was that the Plaintiff completed the amended return for the purpose of demonstrating some earnings for the purposes of his claim. [754]
According to the schedule of damages submitted by the Defendant submitted that as amount of $19,904.80 (including superannuation and Fox v Wood) would be allowed for past economic loss based on the amount paid by Workcover and nil would be allowed for the future. This was to be subject to any deduction for contributory negligence. [755] The Defendant subsequently resiled from this, submitting that following cross examination the case was worth noting. [756]
In closing submissions, the Defendant submitted:- "In terms of economic loss your Honour, your Honour in our submission would not have regard to the plaintiff's evidence about working fulltime for three years absence any tax returns to support it. So all your Honour is left with is a man who recently, that is January 2014, was able to work in Australia and worked for a few days. He didn't have much training or qualifications; he says he sustained an injury. If your Honour accepts obviously that he was working for SC Formwork well then your Honour wouldn't accept anything about his claim for loss of earning capacity." [757]
The Plaintiff in his evidence, asserted that when he worked for Dynamic and was to be paid $1500 per week. [758] He rejected the figure was $150 per day. [759] His first entitlement to workers' compensation payment was in the amount of $464 net per week. The Plaintiff's evidence as to his earnings as disclosed in his 2014 tax return indicated earnings of around $859 net per week up until the week of the accident. There was no primary evidence as to the composition of this figure. Moreover, I do not accept that from 2010, when the Plaintiff asserts he was able to work full-time, he did so continuously. He was unskilled, lacking in English language ability and appeared dependent on his family and cultural network to obtain employment. This is evidenced by the referral by his cousin to Dynamic and by his brother to Edessa. The Plaintiff also stated that he received $1500 per week from 2011-2014 [760]
The low level of his declared earnings and the nature of the work incline me to accept that the Plaintiff received some undeclared earnings. To that extent, I accept his tax records prior to 2013 understated the true extent of his earnings and the 2014 amendment was an attempt to document earnings with a view to advancing his claim.
In determining the extent of any loss of earning capacity, I am mindful of the principles summarised in Moravatjou v Moradkhami. [761] The taxation records were not accurate. The Plaintiff's evidence was variable and unsatisfactory. Accordingly, it is necessary to exercise caution in determining the real figure of any loss. I need to also allow for times that the Plaintiff would not have been working as accepted by the Plaintiff in written submissions. Accordingly, I will proceed on the basis of a sum of $591 net per week; [762] best representing the average earnings of the Plaintiff at the time of the accident.
The Defendant submitted that the Plaintiff's evidence as to deposits into his account subsequent to the accident was implausible and should be rejected as it involved several thousand dollars a month from different people all around the same time. [763]
Overall, I do not accept Mr Khaled El Keir's, Ms Adams or the Plaintiff's evidence as to the source of the payment made into the Plaintiff's account being in respect of earnings owed to Khaled El Keir.
Mr Khaled El Kheir disputed that he was an apprentice carpenter and stated that he was employed on a full-time basis. [764] The Defendant submitted that despite the fact that the Plaintiff was doing a light duties job, Mr Nassif paid the Plaintiff $10 per hour more than form workers doing fulltime work.
As I understood Mr Nassif's oral evidence, Mr Khaled El Kheir was described as an Apprentice Carpenter in that he was "not number one" and "not qualified." [765] Beyond that, the evidence was that he paid the Plaintiff $30 to $32 a week because amongst other things he was more experienced and was prepared to drive. [766] Presumably because of the order that witnesses were called Mr Nassif was not cross examined as to the additional cash Mr Khaled El Kheir asserted he was paid.
The Defendant submitted that payment of $16,000 paid by SC Form to the Plaintiff on the basis of wages owing to the Plaintiff's brother over two month period was absurd bearing in mind Mr Nasiff's evidence. [767]
I do not consider I can form a judgment based on the amount paid by Supercharge in respect of whatever work Mr Khaled El Kheir was responsible for a two month period. His evidence was that his earnings with Mr Nasiff were in fact higher and he ultimately left for higher earnings.
However, Mr Khaled El Keir's evidence as to his employment of "Osman the Sudanese" and submitting invoices to Mr Dib for his and Osman's labour defied credulity. Despite requests, no records were produced and nor did he have any contact details for Osman. He asserted that Mr Dibb did not provide any record but just paid the money into the account.
The Plaintiff submitted that Mr Khalid El Kheir was not cross examined as to the truthfulness of the assertion that he loaned or advanced some $38,000 to the Plaintiff. The claim in fact made was that $38,000 was owed to Mr Khalid El Keir's company KE Formwork Pty Ltd by Supercharge and the latter arranged for some $16,000 to be transferred to Plaintiff. This was said to be done directly so as to avoid use of cash so that Khalid El Kheir's wife would not know. The Defendant put to Mr Khaled El Kheir that the monies said to have been advanced were in respect of work performed by the Plaintiff however he rejected this.
No records of Supercharge have been produced to support the asserted arrangement. Moreover the suggestion that it had to be done in this way to avoid use of cash so as to hide it from Mr Khaled El Keir's wife sits against the background of a claim that he gave other monies in cash and that since working with BKH he continues to assist financially in cash.
The question that arises is whether I should draw an inference that this was in respect of labour being performed by the Plaintiff. In Kuligowski v Metrobus, [768] the High Court stated that in general disbelief of a witness does not establish the contrary. The effect of rejection of such evidence is a factor for the Court to take into account in determining whether the Plaintiff has made out its case as to loss of earning capacity [769] on an assessment of all the evidence in the case.
So far as the bank accounts were concerned, the Plaintiff submitted that the manner in which funds were expended was perfectly unexceptional given the size and age of the Plaintiff's family. It was further submitted that Ms Adams ought to be accepted as a witness of truth as to the manner in which the funds were expended being consistent with a mother looking after an invalid husband and four children. [770]
The Defendant made no submissions as to Ms Adams' asserted use of the Plaintiff's card.
The Defendant's submission regarding the funds was not that the deposit of funds demonstrated earnings by the Plaintiff but rather that whatever the source, the Plaintiff had sufficient funds to afford the treatment he asserts he wanted and that the Court should reject that the reason he did nothing was because of a lack of money. [771]
Significant amounts of expenditure on the account were not able to be accounted for by Ms Adams. On an analysis of the use of the account, I do not accept that the Plaintiff could not have afforded the multi-disciplinary pain treatment as he asserted. Whatever the source of additional funds it is clear that the Plaintiff's family was not struggling financially as the Plaintiff asserted. On the evidence, I am not satisfied that the reason he did not undergo the treatment recommended by Dr Lam was due to not being able to afford it.
On the evidence before me, I am satisfied that the Plaintiff suffered a loss of earning capacity subsequent to the accident although the quantum is difficult to determine. The Plaintiff's earnings with Edessa broadly correspond with the Plaintiff's pre-accident earnings, albeit over two years apart. Having regard to my findings as to the medical circumstances and the Plaintiff's pre and post-accident earnings, overall, I would overall allow a buffer of $50,000 for the past including past loss of superannuation and Fox v Wood component.
So far as the future is concerned, based on my findings of the Plaintiff's injury and its aftermath, I do not accept that the Plaintiff suffers any ongoing effects of injury productive of economic loss referable to the subject injury and I decline to make any allowance.

[46]

Out of Pocket Expenses

The Plaintiff claimed an amount of $37,157.80 [772] for past out of pocket expenses although it had provided an initial schedule of $34,347.
The Defendant initially conceded the amount of $24,640.85 paid by the workers' compensation insurer but subsequently in light of the evidence submitted that it was not bound by the payments made by the workers' compensation insurer. [773] It was submitted that if that insurer agreed to pay GP expenses and payments to Dr Ng that was a matter for it. It was argued that as the Plaintiff wasn't following the advice of the doctors, wasn't taking the scripts it was not reasonable to impose on the Defendant costs of ignoring their advice just for the purpose of getting compensation in the case. [774]
The test is whether the costs incurred were reasonable and necessary. Those costs went beyond prescribing medication and included investigations physiotherapy and rehabilitation. The fact that that treatment may have been ineffective or failed does not preclude recovery. [775] Overall, on the evidence before me I would accept that payments made by the insurer were reasonable and necessary in the context of the treatment that the Plaintiff was receiving however I would not allow the psychologists fees.
The Plaintiff gave evidence of seeing a psychologist, Sana Zaarour, whose treatment was described as beneficial until medication wore off. There are no records for Ms Zaarour in evidence. [776] Some psychologist fees were paid by the workers' compensation insurer but there does not appear to be any overlap in the additional amounts claimed. Although the Defendant did not challenge the Plaintiff's statement that he derived benefit, I would not accept that Ms Zaarour prescribed medication and I do not accept that any condition is causally related for the reasons I have outlined. In short I would have allowed $24,298.45 from the workers' compensation schedule.
From the Plaintiff's claim for reimbursement, I would have allowed additional fees of $935 for out of pocket expenses incurred before 10 February 2015.
I would not allow the fees for chiropractic treatment. Whilst the Plaintiff gave evidence of having chiropractic treatment, there is no evidence that would make it reasonable and necessary for it to be incurred. Similarly, I would not allow the fees of Dr Van Gelder of 9 November 2016 and Dr Ng of 18 February 2015 and 17 March 2016.
On the Medicare statement, I would not allow the fees of Dr Van Gelder for similar reasons. The fees of Dr McDougall do not relate to the accident. I would not accept that the physiotherapy provided by Mr Moutsallem and Mr Lu after 10 February 2015 was reasonable and necessary. Nor the costs of Drs Hiew or Lui for tomography. The evidence of back pain leading to this was of a bad back massage after 13 September 2015 and before 5 October 2016. [777] I would also not allow fees for an MRI on 25 October 2016 by Dr Dimmick nor the fees for Dr Schlaphoff of 10 January 2016 for similar reasons.
I would allow the fees for Drs Wong, Luckey and De Costa and Karunaratne and Duckney.
I would make an allowance for the fees of Dr Bishay for 10 May 2014 and some of the fees of Dr Al Shelth, accepting that only part of these were reasonable and necessary in the circumstances.
In all, I would have allowed a figure of $2000 from the Medicare schedule
I would have allowed all up $27,234 (rounded up) for past of pocket expenses
The allowance I have made for past expenses is what I would regard as exhaustive for the purposes of treatment.
The claim made for psychiatric consultations was based on Dr Bertucen's evidence which I do not accept. Four years has past. I accept the evidence of Dr Vickery that the treatment has been reinforcing the Plaintiff's behaviour.
I do not accept the claim for a multi-disciplinary pain management programme as I am not satisfied on the evidence that it is reasonable or necessary. The Plaintiff gave no evidence in any event that he would undertake such consultation.
The claim of visits to the general practitioner in the future and medications cannot be supported on the evidence.

[50]

Endnotes

Exhibit 1D1 to Defendant's Witness Statements p. 91
Exhibit 1D1to Defendant's Witness Statements pp 92-106 (Hereinafter referred to as 'Dynamic')
Defendant's Statement of Facts-Issues in dispute-Questions of fact 1; also Amended Defence at [34]
Defendant's Statement of Facts-Issues in dispute-Questions of fact 1-6
Notice of motion dated 4 December 2016
See Judgment dated 7 December 2016
Exhibit 6, p. 37 (Mr Finianos was served personally) and T 484.24
T 487.15
Hereinafter the '2005 Act'
T 482.47
Exhibit 6, Affidavit of Murray Tavener dated 6 December 2017 at [5] and Annexure D
Exhibit 20 at [12] and [105]
Exhibit 8, tab 9
Exhibit 8, tab 9
T 577.26-578.31
T 498.12
T 498.18
T 498.22
T 498.29
T 498.32
T 505.43-.47
T 506.19-.24
Exhibit H at [15]
T 179.12-.18
Exhibit 8 and Defendant's written submissions at [8]
Plaintiff's written submissions at [4]
See Chen v Zhang and Ors [2009] NSWCA 202 per Sackville AJA at [51]-[52]
(2009) 52 MVR 492, (with whom Handley AJA agreed) at 526
Exhibit 9 and 10
Exhibit 10 at [7] (Statement of Joseph Bechara, dated 21 October 2016)
Exhibit 9 at [3] (Statement of Andrew David Tetlow date 15 August 2017)
Exhibit 9, Annexure A
T 543.06
Exhibit 10 at [9] (Statement of Joseph Bechara, dated 21 October 2016)
T 28.25-.39
Exhibit 1
T 95.45-.46
T 96.14-.28
T 96.30
T 96.43-.44
T 96.47
T 96.33
T 97.23
T 97.26
Defendant's Statement of Facts and Issues in Dispute-Statement of Facts at [7]; Plaintiff's Statement of Facts and Issues in Dispute-Facts at [1]
Exhibit A at [13]; T 28.47
T 28.50
T 98.36
T 113.14
T 97.50-98.06
T 98.20
T 98.26
T 98.30
T 98.48-99.03
T 99.43-.44
Exhibit A at [16]
T 112.01-.13
T 112.29-39
Defendant's Statement of Facts and Issues in Dispute-Statement of Facts at [4]-[5] and Plaintiff's Response to Statement of Facts and Issues in Dispute at -Facts at [1]
Exhibit A at [17]
T 31.40-.43
T 110.10-.14
T 110.16-.26
T 33.43-.49
T 33.47-34.02
Exhibit A at [19]
T 103.44-.48
Exhibit A at [19]
T 36.19-.30
T T37.38-.41 and 102.48-.50
T 102.25
T 102.29-.31
T 102.34
T 36.34 and T 102.41
T 36.43
T 37.24-.27
T 111.05
Exhibit A at [20]
T 37.11
T 38.05
T 38.14
T 40.24
Exhibit A at [21]
T 37.47
Exhibit A at [22]
T104.03-.12
T 41.25-.35
T 100.47
T 100.49
T 101.01-.04
T 104.27-.47
T 105.06-.08
T 112.47-.49
Exhibit D
Exhibit D at [17]; T129.27-.36
Exhibit D at [2]
T 133.33-.37
T 133.39-134.12
T 134.15-.16
T 134.27
T134.40-.44
T136.05.-08
T133.03-.18
Exhibit D at [2]
T136.30-.33
T136.36
T135.30-.36
Exhibit D at [3]
Exhibit D at [4]-[6]
T136.46-.50
T 137.05
T 137.16-.23
T 137.22
T 141.41
T 142.06
T 142.45-143.11
T 143.10-.18
T 144.02
T 144.11 (referring to the column)
T 144.20
T144.32-.35
T144.50-145.01
T145.10-.17
T146.15-.26
Exhibit D at [7]
Exhibit D at [8]
T138.08-.16
T139.02-.04
T139.10-.14
T139.29
T139.45
T141.20-.22
T141.36
T138.25-.26
T145.45-146.12
Exhibit D at [11]
Exhibit D at [9]
T139.48
Exhibit 2
Exhibit C
Exhibit D at [13]
Exhibit D at [14]
Exhibit D at [12]
Exhibit 2
T 129.43-130.08
T 130.06
Exhibit C
T 130.10-.17
T 131.10
T 132.24-.37
T 132.41-.133.01
Exhibit E
T 130.10-.17
T 135.14-.18
T 130.17
T 147.25
T 147.30
T 147.35-148.45
Exhibit H
Exhibit H at [2]
Exhibit H at [3]
Exhibit H at [4]
T 192.18; Exhibit H at [4]
T 192.24
T 192.27
T 194.43-.47
T 194.49-195.04
Exhibit H at [7]
Exhibit H at [8]
T203.20
T203.28
T203.40
T204.17-.25
T201.34-.49; T202.04
T202.02-.04
T204.30-205.10
T195.06-.18
T195.11
T195.18-.27
T195.34
T195.41
T195.43-.47
T196.07
T196.02
T196.03-.40
T196.46-197.01
T197.05
T197.09-.11
T197.15; Exhibit H at [11]
Exhibit H at [13]
T 192.07-193.02
T 193.04-.14
Exhibit H at [14]
Exhibit 1
Exhibit 10 at [5] (Statement of Joseph Bechara, dated 15 August 2017)
Exhibit D1D (emphasis added)
Exhibit 10 at [14] (Statement of Joseph Bechara, dated 21 October 2016)
Exhibit 10 at [16] (Statement of Joseph Bechara, dated 21 October 2016)
Exhibit 10 at [16] (Statement of Joseph Bechara, dated 21 October 2016)
Exhibit D1D to Statements pp. 131-132
Exhibit 10 at [7] (Statement of Joseph Bechara, dated 15 August 2017)
T 523.39-.47
T 524.05-.14
T 524.16-.36
T 524.40
T 524.43-525.17
A reference I accept refers to Dynamic
T 526.07-.13
Exhibit 7, p. 131
T 530.06-.09
T 530.16-.25
T 531.18-.30
T 531.44
T 531.46-532.02
T 533.16
T534.12-.16
T534.25
T534.44-.49
T535.49-536.05
T536.08-.13
T536.33
T539.05
T 539.07-.11
T 539.24-.30
T 564.04
T 564.08
T 564.13
T 564.19
T 564.23
T 564.28-.30
T 564.36-.41
T 564.36-.41
Exhibit 9 at [9]-[10]
T 549.01-.06
T 549.11
T 549.18
T 549.14
Exhibit 9 Annexure A, Statement 22 May 2014 at [11]
T 549.46
T 550.01
T 550.07
T 550.14-.17
Exhibit 9 at [16]-[21]
T 565.31
T 566.14-.19
T 566.23
T 566.21-.45
T 566.47-567.04
T 568.47-.50
T 568.20-.32
T 569.07-.19
Exhibit 9 at [25]; Annexure A at [26]
Exhibit 2
T 553.31-.34
T 553.39
T 551.30
T 551.36-.46
T 553.44
T 554.32
T 560.25
Exhibit 9, Annexure A at [45]-[49]
T 562.48
Exhibit 1
Exhibits C and 2
Exhibit 9, Annexure A at [42]
Exhibit 9, Annexure A at [44]
T 560.33-.40
T 560.44-.45
T 561.32-.37 (a reference to Exhibit 2)
T 561.41 (a reference to Exhibits C and 2)
T 561.45
T 562.01
T 561.19-.22
T 561.26-.30
T540.26
Exhibit 1D1 to Defendant's Witness Statements, pp 124-126
Defendant's written submissions at [12] and [13]
T133.35-.37
Exhibit D
Exhibit D at [2]
T 135.29-.35
Exhibit 9
T 144.20 and 146.14-.20
T 146.24-.26
Exhibit B at [3]
T 133.10
T 133.15-.30
T 134.15-.18
Exhibit AD at [4]
T 144.32-.35
T 144.22-.35
T 146.48
T 198.21
T 203.50-204.02
Plaintiff's written submissions at [8]
T 536.28-.34
Exhibit 2
(2000) 49 NSWLR 262 at [84] - [88]
[2014] NSWCA 424 (9 December 2014). See also Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [76]-[78]
Fuller-Lyons v New South Wales [2015] HCA 31
[2014] HCA 52 at [89] (Gageler J) (emphasis added)
See Macks v Viscariello [2017] SASCFC 172 at [601]
(1959)101 CLR 298 at p305.; [1959] HCA 8 (emphasis added)
T 591.36-592.14
T 560.21-.31
T 591.23-.33
Exhibit 1D1 to Defendant's Witness Statements, pp 128-13
Exhibit J, p 10
(2009) 240 CLR 1; [2009] HCA 35 at [20]-[21] and [48]
T7.48-8.6
T 5.20-.31
T 6.24-.37
Plaintiff's written submissions at [9]
T 590.23-591.03 (emphasis added)
Hereinafter the "2002 Act"
[2014] NSWCA 85 (McDougall J with whom Leeming JA agreed) at [108]- [111]
[2016] NSWCA 209 (Simpson JA and Sackville AJA concurring)
(2015) 91 NSWLR 752
T 585.39-586.02
[2015] NSWCA 90; 320 ALR 235 at [106]
See [11] of the Statement of Claim
s 5B(1)(a), (b) of the 2002 Act
S 5B (1)(c) of the 2002 Act
Exhibit A, p. 15
T30.03-.25
Exhibit 15 reports however they were not tendered see T 291.48-.48 and 342.16)
Exhibit 7, p 34
Exhibit 13
Exhibit J, p 137
Exhibit J, p. 166
T 46.49-.50
T 456.03-.05
Judgment 7 December 2017, p13
T 499.20-.28
T 589.06-.14
Exhibit 9, Annexure A at [14]-[15]
Exhibit 9, Annexure A at [16]-[25]
Exhibit 2
Exhibit 9, Annexure A at [20]
T555.04-.45
T555.45-.46
T557.07
Exhibit 2
T558.16-.22
T558.26
T559.15
T559.27-.48
Exhibit 9 at [26]
T 212.05
T 212.05-.13
T 212.16-.18
T 212.21
T 212.33-.35
T 212.48
T 213.01.-02
T 213.05
T 213.15
T 213.30
213.42
T 214.01-.05
T 212.21
T 214.23-.25
T 214.27-.34
T 214.36-.43
T 214.45-.20
T 215.25-.35
T 216.01
T 243.39-.49 Exhibit 7 at p34
T 244.36-.41
T116.41
T116.45
T116.49
T 247. 22
T117.37
T117.44
T117.47
T118.15-.24
T247.5-.27
T 46.16-.22
T 44.31-47.4
T 118.26-.27
T 209.01-.29
T 209.44
T 209.48
T 210.02
T 211.22
T 216.08
T 216.11
T 216.15
T 216.25-.36
T 216.50-217.10
T 217.22-.35
T 217.42
T 223.11-.21
T 223.23-.28
T 223.30-.32
T 223.30-.39
T 224.10-.13
T 224.18-.22
T 224.26-.32
T 225.01-.18
T 225.20-.40
T 225.43-.226.05
A subsequent employer to be discussed later in these reasons
T 226.07-.18
T 248.30
T 248.35-.45
T 249.24
T 249.27
T 249.35
T 249.37-.44
T 250.04-.47
T 251.10-.28
T 251.30-252.26
T 218.01-.50
T 219.10-.17
Exhibit J
Exhibit J at 16
Exhibit J, p. 1
Exhibit J, p. 90-1
Exhibit J, p. 97
Exhibit J, p.90-1
Exhibit J, p.177-8
Exhibit J, p 88
T 273.20-.42
T 273.40-274.08
T 274.10-.33
T 275.23-.42
T 276.13
T 276.26
T 277.17
T 277.27-.36
T 277.41-.48
Exhibit J, p9 and Exhibit 19, p7
Exhibit J, p32
Exhibit J, p179-80
Exhibit J, p158-9
Exhibit J, p149-50
Exhibit J p134-5
Exhibit J, p 37
Exhibit J, p 80
Exhibit J, p57
Exhibit J, p. 158
Exhibit J, p.151
Exhibit J, p 98
Exhibit J, p 76
Exhibit 4, at [1.8]
Exhibit J, p.160-4
Exhibit 7,p163
Exhibit J, p.153
Exhibit J, p.182-3
Exhibit J, p.154
T 121.18
T 121.13
T 121.31
Exhibit J, p185-6
Exhibit J, p155
Exhibit J, p187
Exhibit J, p185-6
Exhibit J, p99
Exhibit J, p52 ,100 and 199
Exhibit J, p46,101-2 and 222
Exhibit J, p92-6
T 122.14-126.4
T 119.13
T 222.26
T 222.28-.44
T 222.46-223.02
T 278.35
T 278.35-.48
T 279.20
T 279.23
Exhibit Q says last payment on 23 February 2015
T 581.25-.33 and Defendant's written submissions at [19]-[21]
Part of Exhibit 11
Exhibit J, p. 216
T 283.42
T 283.49-284.04
T 284.43
T 285.23
T 285.33-.39
T 285.49
T 286.08
T 286.11-.19
T 286.30
T 286.34
T 286.36- 287.02
T 287.08-.11
T 287.24
T 287.26-.37
T 288.29
T 288.34
T 288.45
T 289.01-.04
T 289.06-.11
T 289.38-.44
T 290.04-.14
T 291.03
T 291.05-.12
T 291.25-.27
T 291.34-.35
T 293.13-.22
Exhibit 18
Presumably part of Exhibit 11
Exhibit 18, p. 29
Part of Exhibit 11
Exhibit 18, p. 31-2
Exhibit J, p. 190-5
Exhibit J, p. 196-201
Exhibit 4
Exhibit K/3
T 287.01-05
T 289.07-.11
T 299.36-.37
T 289.42
T 300.15
T 300.32-301.20 ( A reference to part of Exhibit 11 referable to 27 May 2014)
T 301.15-.20
T 301.26-.41
T 303.19-.28
T 304.01-.05
T 304.01-.02
T 306.16-.17
T 307.15-.29
T 307.38-.44
T 309.10
See discussion below
T 301.38-311.25
T 312.04-.12
T 313.33-.40
T 315.21-.30
T 314.11-.21
T 314.44-315.11
Defendant's written submissions at [117]
Exhibit J p13 and 16
Exhibit J at 1
Exhibit J, p134-5
Exhibit J, p158
T 121.09-.18
Plaintiff's written submissions at [27]
T 164.20-.165.10
T 595.8-.33
Exhibit 18 dated 6 August 2014 and 3 September 2014
Exhibit 17, p12-13
Exhibit 17, p15
Exhibit 17, p11
Exhibit 17
Exhibit 17
Exhibit 5, p10-1
Exhibit 5, p12
Exhibit 5
Exhibit 5, Supplementary Report of Dr Vickery, dated 14 August, p. 14-6.
Exhibit J, p220
Exhibit J, p222
Exhibit 7, p223
Exhibit L
T 331.24-.31
T 231.37-.47
T 331.49-332.26
T 334.07
T 335.04-.08
T335.33-.42
T 336.14-.17
T 337.41-.46
T 337.45
T 338.25
T 338.35-.38
T 339.01-.07
T 340.22
T 340.28-.31
Exhibit L at [2]
T 341.06-.47
T 342.03-.12
T 343.08-.17
T 343.19-344.28
T 345.15-.38
tendered as part of Exhibit 7
T 346.35-.38
T 347.41-348.01
T 348.07
T 348.15
T 350.43-351.12
T 349.21-350.25
T 352.26-.32
T 352.41-352.13
T 354.48-355.01
Exhibit 7, p 34 "Bill severe SN deafness-tinnitus family history of deafness"
T 354.07
T 354.13
Exhibit 15; T 354.15-.46
T 354.48-355.06
T 356.04
T 356.08-.10
T 356.12-.21
T 358.34-.48
T 364.19-.21
T 365.17
T 367.08-.24
Exhibit L, p. 4
Plaintiff's written submissions at [26]
[2000] NSWCA 133; (2000) 54 NSWLR 536 at [71] (Mason P and Handley JA agreeing)
Exhibit 8 pp 152-160 and166 at [9]
Exhibit A at [7]-[8] and 28.22-.38
T 27.40-.49
T 28.05-.19
Exhibit A at [10]
Exhibit R
T 152.46-153.9
T 235.22.-.26
T 235.10-.20
T 235.36
Exhibit F
See Exhibit J, tab 51-54 and Exhibit 12, tab 5
T 58.35-.48
T 58.22-.30 and T 59.24
T 56.48-.56.44 and T 59.50-.02
T 56.32
T 58.17
T 59.43 - 60.02
T 60.13
T 61.27-.22
T 60.29 and T 61.27
T 65.05
T 65.08
T113.19-.26
T113.37
T114.03-.10
T 66.45-67.02
T 67.06
T 67.48
T 68.21
T 68.01
T 58.3-.13
Exhibit A at [48]
Exhibit A at [50]
Exhibit G at [3]
Exhibit G at [4]
Exhibit G at [5]
Exhibit G at [8]
Exhibit G at [9]
Exhibit G at [10]
Exhibit G at [12]
T 181.41-182.25
T 182.01-.11
T 183.19
T 183.42
T 183.50
T 184.35-.50
T 185.45-.48
T 187.04
T 187.15
T 187.35-.43
T 188.10-.13
The Defendant's submissions suggested $170,000 however ultimately the questioning proceeded on the basis of the amount being $130,000T 87.1-.9
Exhibit 12
T 87.12-88.41
T 88.44-.49
T395.23-396.38
Exhibit N at [11].
Exhibit N at [12]-[13]; Exhibit 12, p. 130.
Exhibit N at [15]
Exhibit N at [16]
Exhibit N at [17]
T 398.46
T 398.50
T 399.02
T 399.17-.45
T 400.05-.19
T 400.28
T 403.26
T 403.30
T 404.05
T 404.34-.40
T 404.46-405.07
T 407.35-408.14
T 405.19-.40
T 405.46
T 406.10
Exhibit O
T 407.14
Exhibit O
T 408.34-409.47
Exhibit O
T412.30
T 412.34-.50
Exhibit N at [22]
T 265.20-267.38
Exhibit 12, p. 118
T 268.15-.43
T 268.50
Exhibit 8 p49
Defendant's submissions at [33]
T 449.49-452.10 and T458.1-459.36
T 496.5-.7 and Judgment dated 7December 2017 at p11-12
Exhibit 12, p. 126
T 271.33
T 271.41
T 271.43-272.09
T 273.05-.12
T 220.01-.14
T 220.16-.46
T 220.49
T 221.04-.23
T 221.30
T 221.39-.47
T 221.49-222.10
T 230.19
T 230.48
T 230.04
T 230.11
T 230.13-.22
T 231.35
T 232.02
T 232.07-.20
T 232.22-233.11
T 235.08
T 253.14-.24
T 253.30-.48
T 254.04
T 254.06-.11
Exhibit 12, p. 91, 158
T 257.01-.04
T 257.06-.13
T 257.20
Exhibit 12, p. 93, 158
T 257.30-258.29
Exhibit M
T 259.26
Exhibit 12, p. 16
T 259.45
T 260.18-.33
T 260.35-.48
Exhibit 12, p. 10
T 261.03-.09
T 261.14; Exhibit 12, p. 11
T 261.21-.41
Exhibit 12, p. 37
T 261.43-263.05
T 263.07-.16; Exhibit 12, p. 37
Exhibit 12, p. 40
T 263.04-.35
T 264.45
Exhibti12, p. 224
T 270.50-271.01
Exhibit 12, p. 125
T 271.17
T 271.29; Exhibit 12, p. 125
Plaintiff's written submissions at [24]
Plaintiff's Statement of Particulars filed 3 November 2015, p. 3
Plaintiff's Schedule of Damages
See Exhibit 0
Plaintiff's written submissions at [32]-[34];
T 595.41-596.12
Defendant's written submissions at [30]
T 3.03-.11
T 71.21-.39
T 587.07-.14
T 116.38
T 116.38 Earlier he stated he was told $250 to $300 per day T 99.41
T114.24-.29
[2013] NSWCCA 157
being approximately 50% of the average net earnings of all workers in construction in 2014 according to the Furzer Crestani tables
Defendant's written submissions at [31]
T395.6
T181.39
T 184.5-.15
Defendant's written submissions at [33]
(2004) 220 CLR 363, 385 [60]
Chen v Zhang and Ors [2009] NSWCA 202 per Sackville AJA at [50]-[51]
Plaintiff's written submissions at [22]
Defendant's written submissions at [35]
Exhibit Q
T 587.28.34
T 586.48-587.4
Lamb v Winston (No 1) [1962] QWN 18
T 46.6-.15
Exhibit J at p54 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: 18 June 2018

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Judgment (50 paragraphs)

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