He then said:
"From the driveway, proceeded down the driveway and there was a lot of ruts and holes but in the process of saying holes they weren't round holes, they were sort of L-shaped holes. You picture a driveway and a bob, what a bobcat driver does is digs into it and then lifts out (indicated). So there was humps and bumps and dips, craters, try to go past and avoid as many as I possible could. Pretty much at the end of the driveway got to the very bottom and I couldn't not (sic) avoid the last one. The wheelbarrow fell into that one. I went in with it and as we both went down I just felt a massive pain and just felt like I was getting crushed."
23 The plaintiff was extensively cross-examined on the variations discernible in his accounts of his injury given in the various documents extracted above. Attention was drawn, both in cross-examination and in subsequent address, to the description of the plaintiff's work as barrowing bricks (not mortar, cement or mud), and, particularly, to the absence in Dr Mihrshahi's note, of a fall, or indeed, any causative incident. Dr Mihrshahi's note merely records the onset of "terrible" back pain while pushing a barrow load of bricks. Likewise, the plaintiff was cross-examined at length concerning the date which he had given to various people of his injury.
24 There is, I accept, some mystery about the date. Dr Mihrshahi's record, taken together with the plaintiff's evidence that he attended her on the day of his injury, would support the present pleading that the injury occurred on 20 February 2003. However the note includes a reference to the plaintiff's inability to sleep on his back. This would not suggest that that attendance was on the day the injury was sustained. On the other hand, there is no earlier note in Dr Mihrshahi's records that would permit an inference that the injury occurred on an earlier date.
25 I am satisfied that this anomaly does not have to be resolved. The plaintiff's evidence was that he did not make any attempt to identify the date until asked to do so some time later. Then, his impression was that it had occurred during the first two weeks of February. It was only by a process of deduction on the part of the plaintiff's solicitors, principally by reference to Dr Mihrshahi's note, that the date of 20 February was fixed upon. But there is no dispute that the plaintiff worked on the site; it was never suggested to him that his description of the terrain was other than accurate; and it was common ground that, from time to time, bobcats worked on the site.
26 I am conscious, also, that Dyldam, especially, places considerable store on the date of 20 February. This is because of an opinion expressed by Dr Ronald Shnier, a radiologist who, in May 2007, reviewed various radiological examinations of the plaintiff, and concluded that a CT scan taken on 13 March provided evidence that the injury that it disclosed pre-dated 20 February, and was of closer to 5-6 weeks' maturity - that is, having occurred at the end of January or early February. But Dr Shnier was under the mistaken impression that the CT scan was taken only two, not three, weeks after the date on which he said he was injured.
27 The acknowledged fact is that the plaintiff never returned to work after the incident that caused his injury. In the ordinary course the date would be readily ascertainable by reference to wage records of his employer, Sydney Bricklaying. However, for some time after he ceased work, and until he made a claim for workers' compensation in May 2003, Sydney Bricklaying continued to pay him in the ordinary manner. And, in any event, Sydney Bricklaying has gone into liquidation and many of its records have been lost. Such records as do exist therefore do not clarify the position.
28 The plaintiff's credibility is not affected by the mystery surrounding the date of his injury. He has committed himself to the date of 20 February only on the basis of information supplied to him by his solicitors. He did not pretend to have any independent recollection that his injury occurred on that date. In my opinion the evidence concerning the date raised a false issue which need no longer be pursued.
29 On behalf of Dyldam one witness gave evidence. He was Trevor Chia, who, in early 2003 was employed by Dyldam as a leading hand. Mr Chia described the arrangements for organising work on the building site. However, it does not appear to me that, in any material respect, this evidence advances the issues with which I am presently concerned. It casts some light on the issues raised by the cross-claims.
30 Counsel for both defendants put submissions to the effect that I would not accept that the plaintiff's injury occurred as described by him. I have already outlined the basis on which that submission was put on behalf of Dyldam; the attack on behalf of Sydney Bricklaying was not significantly different. I reject both attacks. As I have stated, I found the plaintiff to be an honest witness and, while there were some inconsistencies, even in his oral evidence, I am comfortably satisfied that these arose because of faulty understanding of what he was being asked, or faulty recollection. In passing, I note (as will shortly become apparent) that it was common ground that the plaintiff's current medical condition is dire, that he experiences considerable and constant pain and discomfort, and that his physical condition has had a significant effect upon his emotional condition. The plaintiff was, at times, agitated; he frequently lost concentration, and he showed clear signs of not coping well with cross-examination or even examination in chief. That, however, was not because of any lack of integrity on his part. It was for the reasons I have given. His physical pain was readily observable, as was, frequently, his emotional pain.
31 Notwithstanding discrepancies, and notwithstanding a question mark as to when the injury occurred, I am quite satisfied that it occurred substantially as described by the plaintiff.
32 The negligence alleged against each defendant was particularised at great length and in great detail.
33 I am satisfied that the plaintiff has made out his case in negligence against each defendant. As against Dyldam, it is clear that the site on which the plaintiff was required to work was unsafe by reason of the ground surface. In this respect, I note Mr Chia's evidence that it was his practice to meet, on site, senior representatives of Sydney Bricklaying to map out the day's work; this included plotting access ways to locations where labourers or tradesmen had to work. He said that crushed concrete was used to produce a "safe walking area". But Mr Chia was not asked to, and did not, challenge the plaintiff's description of the general ground surface. And he did not suggest that labourers, such as the plaintiff, were routinely advised by Dyldam of what was agreed between the managers. It is not, in my opinion, of major consequence whether the particular disturbance in the terrain into which the plaintiff's wheelbarrow was caught was caused by a bobcat or by some other means. I interpolate that, on the balance of probabilities, I accept that it was so caused; but, even if there were some other cause, it was quite plain that the ground surface was uneven, was littered with rubble, crushed concrete, building materials and debris; it was, in places, wet, and was quite unsuitable for the use of a wheelbarrow, particularly one laden to the brim with wet concrete.
34 It follows that, so far as the plaintiff is concerned, Sydney Bricklaying was also in breach of its duty of care to provide the plaintiff with a safe place to work and with safe working conditions. Such a duty is, of course, non-delegable, and it was not suggested that Sydney Bricklaying had delegated this duty to Dyldam or anybody else. There was no evidence that Sydney Bricklaying had taken any steps to ensure that the plaintiff was provided with a safe working environment. There was no evidence that Sydney Bricklaying kept labourers, such as the plaintiff, informed of the agreed access ways. It is apposite to note that a director of Sydney Bricklaying was called, but gave no evidence capable of exculpating the plaintiff's employer.
35 No argument was addressed to the breaches of statutory duty alleged and it is unnecessary further to consider them. Subject to restrictions imposed by ss 151G and 151H of the Workers Compensation Act, the plaintiff is entitled to an award of damages against each defendant.
36 It will in due course be necessary, for the purposes of the cross-claims, and also for the purposes of s 151Z of the Workers Compensation Act, to determine the respective blameworthiness of the two defendants.