Kabic v AAI Limited t/as GIO

Court of Appeal (NSW)|2019-03-15|Before: Meagher JA, White JA, McCallum JA

) 59 ALJR 492 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 Sungravure Pty Ltd v Meani (1964) 110 CLR 24; [1964] HCA 16 Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 Williams v Metcash Trading Ltd [2019] NSWCA 94 Category: Principal judgment Parties: Milan Kabic (Appellant/First Cross-Respondent) AAI Limited t/as GIO (Respondent/Cross-Appellant) Workers Compensation Nominal Defendant (Second Cross-Respondent) Representation: Counsel: B J Gross QC with F Curran (Appellant/First Cross-Respondent) M T McCulloch SC with R Perla (Respondent/Cross-Appellant) N E Chen SC with J C Lee (Second Cross-Respondent)

Solicitors: Carters Law Firm (Appellant/First Cross-Respondent) Moray and Agnew (Respondent/Cross-Appellant) HWL Ebsworths (Second Cross-Respondent) File Number(s): 2018/89704 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2017] NSWSC 1281 Date of Decision: 22 September 2017 Before: Button J File Number(s): 2014/129949

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[This headnote is not to be read as part of the decision] The appellant was a formwork labourer contracted to provide services to Calcono Pty Ltd ("Calcono"), whose position was represented on the appeal by the respondent/cross-appellant insurer. On 26 May 2011 the appellant slipped, fell, and injured himself while working on a construction site in Redfern. On 16 March 2018 the appellant was awarded $452,395.18 in damages in a negligence suit against Calcono ([2018] NSWSC 330). The circumstances of the fall as found by the primary judge (in [2017] NSWSC 1281) were that the appellant was required by Calcono to work on a plywood platform (a "safety catch deck") which was not enclosed by braces or protective barriers, at an elevation of about two metres from a concrete floor. Further, it was raining on the day of the fall. The water rendered the formply on which the appellant was standing slippery. The appellant slipped and fell to the concrete floor. The primary judge assessed the appellant's contributory negligence at 33.33% to reflect the appellant's failure to draw to his superiors' attention the unsafe conditions in which he was directed to work. The primary judge assessed the appellant's economic loss on the bases that (a) he had a residual earning capacity of at least $600 per week in performing light duties, (b) by the time he reached the age of 50 he would not, on the balance of probabilities, be able to work as a formwork labourer, and (c), the negligence did not harm the appellant's future earning capacity after the age of 50 because the appellant would have switched to light duties at this age even if the injury did not occur and he was capable of performing such duties. The appellant appealed against the finding of contributory negligence and the assessment of damages. The respondent cross-appealed against the finding of negligence.

The Court of Appeal (Meagher, White, McCallum JJA) allowing the appeal and dismissing the cross appeal, held:

Per White JA, Meagher and McCallum JJA agreeing (at [1] and [204] respectively): As to the finding that Calcono breached its duty of care:

The primary judge did not err in making the factual findings impugned on appeal. Calcono's case theory as to the appellant's position was based on evidence that was rejected by the primary judge as inadmissible. The finding that the appellant fell from the safety catch deck when he slipped on wet plywood was open to the primary judge, as was the finding that the cross-braces were absent: [62]-[63], [79], [98]-[105].
The primary judge was entitled to draw a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference from Calcono's failure to call the site foreman. The foreman could have been called to give evidence as to, inter alia, the presence or rain or water on the catch deck, the presence of cross-bracing, and where the appellant was standing: [107].
The appellant had adduced expert evidence to the effect that the plywood was more slippery when it was wet than when it was dry. The primary judge did not need to make a finding as to precisely how slippery the platform was. An essential finding of negligence was that the appellant was working at a height without a guardrail to protect him: [82], [84], [87], [94]. Australian Oil Refining Pty Ltd v Bourne (1979) 54 ALJR 192, Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21; Jackson v McDonalds Australia Ltd [2014] NSWCA 162; Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77, referred to. As to contributory negligence:
The primary judge reversed the onus of proof by requiring the appellant to prove that the site foreman could see that the safety catch deck was wet. The foreman must have been aware that the area in which the appellant was directed to work was wet: [110], [112]-[113].
The appellant was not guilty of contributory negligence because he followed orders: [115]. Hartge v F Lassetter & Co Ltd (1916) 16 SR (NSW); Meani v Sungravure Ltd [1964] NSWR 11; Sungravure Pty Ltd v Meani (1964) 110 CLR 24; [1964] HCA 16, applied.
Because the site foreman did not give evidence it was not possible to tell whether or not he would have resisted withdrawing the order if the appellant had protested: [114]-[121].
The finding of contributory negligence should be set aside: [122]. As to the assessment of damages:
In assessing past economic loss, the deduction of $600 per week reflecting the appellant's residual earning capacity must be excised because the evidence, although establishing that the appellant was physically capable of performing the jobs used to calculate this figure, did not establish that these jobs were available to the appellant or that he could secure employment in them: [136]-[165].
The $600 per week deduction must also be excised in the assessment of future economic loss: [168].
The approach taken by the primary judge in finding that, on the balance of probabilities, the appellant would have ended working as a formwork labourer by age 50 was inconsistent with Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 ("Malec v Hutton"). The Malec v Hutton approach advanced by the plaintiff at trial did not accord with the medical evidence, and did not acknowledge that Malec v Hutton applies to past hypothetical events. The method employed by the primary judge was proposed by Calcono and it cannot now complain that the method was more favourable to the plaintiff. The primary judge's assessment of damages for loss of future earning capacity as a formwork labourer up to the age of 50 should not be disturbed: [167], [170]-[171], [173]-[174], [190]-[192]. Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, applied.
Given the injury caused the appellant a period of unemployment and given the evidence of a correlation between the length of previous unemployment and the difficulty of obtaining employment, as a matter of principle the primary judge ought to have been invited to assess damages to reflect the reduction of the appellant's chance of obtaining employment in light duties. Neither party having raised this issue on appeal or at trial, it would not now be appropriate to allow the parties belatedly to address it, accordingly this part of the assessment ought not be disturbed: [194], [196], [198], [200]-[201].

Judgment

MEAGHER JA: I agree with White JA.
WHITE JA: This is an appeal and cross-appeal from orders of the Common Law Division (Button J) (Kabic v Workers Compensation Nominal Insurer (No. 3) [2017] NSWSC 1281; Kabic v Workers Compensation Nominal Insurer (No. 4) [2018] NSWSC 330; Kabic v Workers Compensation Nominal Insurer (No. 5) [2018] NSWSC 1070).
The appellant, Mr Milan Kabic, was the plaintiff in the court below. He sued for damages for personal injury arising from a fall on a building site on 26 May 2011 on a property in Redfern. He sued three defendants. The first defendant was initially Caringbah Formwork Pty Ltd ("Caringbah"). It was his employer. It became deregistered and was replaced by the Workers Compensation Nominal Insurer. The second defendant, Deicorp Pty Ltd ("Deicorp"), was the head contractor for the carrying out of the building works. The third defendant, Calcono Pty Ltd ("Calcono"), was Deicorp's subcontractor engaged to carry out formwork services for Deicorp. Caringbah was a labour hire company. Mr Kabic's services were provided to Calcono.
On this appeal the insurer for Calcono (AAI Limited t/as GIO) has been substituted for Calcono. The GIO asserts Calcono's position as hirer of Mr Kabic's services. It is unnecessary to distinguish Calcono's position from that of its insurer and in these reasons I will refer to the submissions made by counsel for the GIO as submissions of Calcono.
Caringbah, and later the Workers Compensation Nominal Insurer, filed a cross-claim against Deicorp and Calcono claiming indemnity or contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and an indemnity under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) to the value of the workers' compensation payments made to Mr Kabic.
The primary judge found that only Calcono was liable to pay damages to Mr Kabic. Judgment was entered against Mr Kabic in favour of the Workers Compensation Nominal Insurer and Deicorp. He does not appeal from those judgments.
The primary judge found that Mr Kabic was contributorily negligent and assessed the proportion by which the award of damages should be reduced on account of contributory negligence at 33 and one-third per cent. On 16 March 2018 the primary judge assessed damages in the sum of $678,253.65. After adjustment for the finding of contributory negligence the primary judge ordered "verdict [sic] for the plaintiff against the third defendant, Calcono Pty Ltd, in the sum of $452,395.18."
There were arguments about costs. No issue is raised on the appeal about the primary judge's decision as to costs. The parties otherwise provided the primary judge with undisputed draft orders. These included a provision for judgment to be entered for the Workers Compensation Nominal Insurer against Calcono for $452,395.18 as enforcement of its right of indemnity from the tortfeasor under s 151Z(1)(d) of the Workers Compensation Act to recover workers' compensation payments paid to Mr Kabic. Calcono was also ordered to pay interest to the Workers Compensation Nominal Insurer on that sum. The orders provided that it was noted that the payment of $452,395.18 by Calcono to the Workers Compensation Nominal Insurer discharged Mr Kabic's obligation pursuant to s 151Z(1)(b) to repay the workers' compensation payments made to him in an agreed amount of $318,952.71. It also satisfied Calcono's obligation to Mr Kabic pursuant to the judgment entered against it in favour of Mr Kabic on 16 March 2018 (Kabic v Workers Compensation Nominal Insurer (No. 5)).
Mr Kabic appealed against the assessment of damages and the finding of contributory negligence. Calcono cross-appealed against the judgment and orders entered against it on 16 March 2018.
The circumstances in which Mr Kabic sustained his injuries on 26 May 2011 were disputed. He claimed that he fell about two metres from a raised platform when handing down timber to a co-worker below. He said that he was standing on treated plywood that was naturally slippery. He claimed that the plywood was even more slippery because it had been raining and the plywood on which he was standing was wet. He claimed that his feet slipped out from under him and he fell to the ground because there was no barrier to prevent the fall. Mr Kabic said that he was standing on a platform constructed across metal bays but the cross-braces on the upper part of the bay where he was standing were missing.
Calcono disputed each element of this case on appeal. Calcono said that Mr Kabic did not fall from the platform. It said that he was dismantling the platform and fell from a timber plank that he had laid from the floor up to an angle formed by the cross-braces on the bottom half of the bay below the platform to a height of about one to 1.2 metres.
Calcono submitted that if it were found, contrary to its case, that Mr Kabic fell from the platform as he claimed, then it should be found that it had not been raining. Calcono denied that the plywood was wet. It said that if nonetheless the plywood were found to have been wet, the judge should not have found that this made the plywood more dangerous or more slippery in the absence of admissible expert evidence to this effect. It said that an expert's report relied upon by Mr Kabic should have been rejected. It denied that cross-braces on the upper half of the bay were missing.
Mr Kabic's account of how he came to be injured was substantially corroborated by his co-worker, a Mr Vujatovic. The primary judge made adverse findings about Mr Kabic's credibility, but was satisfied that Mr Vujatovic was an honest and reliable witness. The primary judge preferred the evidence of Mr Kabic and Mr Vujatovic to evidence given by a Mr Nicholas Reeves. Mr Reeves was an employee of Deicorp and at the time of the fall was the first aid officer and Occupational Health and Safety officer and structure foreman for Deicorp on the site. The primary judge placed weight on the fact that Calcono did not call its foreman, a Mr Gino Calautti, whom Mr Kabic and Mr Vujatovic said gave directions to them to do the work from the raised platform in circumstances in which they said that the platform was manifestly wet, and who might be thought to have had knowledge of the condition of cross-bracing on the metal bays. Calcono submits that the primary judge was wrong in drawing a Jones v Dunkel ((1959) 101 CLR 298; [1959] HCA 8) inference against it for not calling Mr Calautti.
It was common ground that Calcono owed a duty of care to Mr Kabic analogous to the duty of care owed by an employer to its employee.
It will be convenient to deal first with Calcono's cross-appeal that challenges the primary judge's finding that it was liable for damages for breaching the duty of care it owed to Mr Kabic.
On appeal, there being no appeal by Mr Kabic against the judgment given for Caringbah on his claim against Caringbah, Mr Kabic and Caringbah's insurer, the Workers Compensation Nominal Insurer, had the same interest in seeking to establish that Calcono was liable to pay damages to Mr Kabic for the tort of negligence. The burden of the argument on appeal on the question of Calcono's liability to pay damages was assumed by Mr Chen SC who appeared for the Workers Compensation Nominal Insurer.
As noted above, Mr Kabic appealed from the primary judge's assessment of damages and the primary judge's finding that the damages should be reduced by one-third on account of Mr Kabic's contributory negligence. The primary judge found that Mr Kabic was contributorily negligent because he accepted Mr Kabic's complaint that it was raining and found that he was well aware that he should not work in the rain (Judgment [343]). The primary judge said it was not clear that Mr Calautti was in a position to see that the wood on the top of the platform was wet but that was obvious to Mr Kabic (Judgment [345]). The primary judge said that if Mr Kabic had simply drawn the state of the wood on the platform to the attention of Mr Calautti and proposed different possible steps, the fall would in all likelihood not have happened (Judgment [346]).
Mr Kabic takes issue with this reasoning as addressed in more detail below.
On the assessment of damages, Mr Kabic was 39 years old at the time of his injury. The primary judge found that the fall put an end to Mr Kabic's ability to engage in the employment as a formworker in which he had been employed by Caringbah, such employment being physically demanding. The primary judge accepted that Mr Kabic would be able to earn a higher income as a formworker than in lighter duties, but that the fall did not preclude his engaging in other forms of employment with lighter duties (Second Judgment [10]-[12]).
The primary judge held that for many years Mr Kabic had been capable of doing any jobs that involved light duties and did not require great facility in English. He found that Mr Kabic had not made a sincere effort to find such work in the past. He found that Mr Kabic had been capable of earning $600 per week from a time three years after the date of the fall, that is, from 26 May 2014.
In assessing future economic loss, the primary judge also found that Mr Kabic was capable of doing any unskilled work that did not require significant physical exertion and did not require great facility in English, although there was a need for such positions to be part-time and for his hours to be gradually increased (Judgment [362]). The primary judge found that there were many such positions available to Mr Kabic.
The primary judge also found that but for the injury, Mr Kabic would not have worked as a formworker beyond the age of 55 as an absolute maximum because of the physical toll of that work on his body. He found that "... on the balance of probabilities, his ability to do that work would have ended at the age of 50." (Judgment [364])
Mr Kabic challenges the assessment of damages.

Summary of conclusions

For the reasons which follow I have concluded: 1. Calcono's cross-appeal against the finding that it was liable to pay damages to Mr Kabic and to indemnify the Workers Compensation Nominal Insurer in respect of workers' compensation payments made to Mr Kabic should be dismissed; 2. Mr Kabic's appeal against the finding of contributory negligence should be upheld; and 3. Mr Kabic's appeal against the assessment of damages should be allowed in part.

The workplace

Deicorp was the head contractor for the construction of a multistorey building that was a redevelopment of the Redfern RSL. It engaged Calcono as a sub-contractor to carry out formwork services.
Mr Kabic described the work of a formwork labourer as being very physical and involving the erection and disassembly of formwork required on building sites for the pouring of concrete to form slabs. The work involved the unloading of large items used to make up the formwork such as planks, timber beams, boards, panels, steel jacks, steel beams and supports, ladders and the carrying of those items onsite, usually to heights, up and down scaffolds and ladders. He said: "The work involves hammering, sawing, cutting, drilling and screwing to fit the formwork into place and the process is then reversed after the concrete is poured and set and then the formwork is stripped and disassembled and re-erected at a higher level or at another place as the building project progresses upward, level by level".
The construction site was built level-by-level. On the completion of the concrete base of level 2, formwork was installed at the ceiling level of level 2 to support concrete laid as the base of level 3. The formwork was supported by metal scaffolding or frames of approximately four meters in height. This was made up of two interlocking metal frames of two metres in height. Metal jacks on the top of the metal scaffold supported what was called a back propping beam which in turn supported longer cross-beams on the top of which was laid a form of plywood. Concrete was poured over the plywood to form the base of level 3. The plywood was treated to provide a smooth surface so that it would not stick to concrete that formed the slab of level 3. Once the concrete had set the formwork was dismantled.
The two interlocking steel modular metal frames (also referred to as a "bay") were stacked on top of one another. Each bay had a height of about 1.8 to 1.9 metres, and a similar width and depth. The total height of two bays stacked on top of one another was thus approximately 4 metres. A frame would be locked into another with "adjoining lugs" which allowed the frames to "socket into one another" and be fastened by a fixing piece, such that the frames could not separate from one another.
A depiction of one of the bays is extracted below:
The layer of formwork, as well as the majority of the second (higher) frame, is depicted in the photograph extracted below:
At the point at which the two frames interlocked, the "working platform" (also referred to elsewhere in the evidence as a "safety catch deck", and I use the terms interchangeably) was constructed. The working platform consisted of timber planks, referred to as "bearers", onto which was nailed a plywood base. The plywood used for the base is the same plywood that is used in the formwork for the concrete pours. The purpose of the working platform was to provide a stable and safe surface from which workers could carry out work on the underside of the formwork platform above them, and to protect workers underneath it from being struck by falling objects. The photograph above may have been taken from such a working platform. There were no photographs of the working platform itself in evidence.
Level 2 was where Mr Kabic was working at the time of the injury. The floor of level 2, being the ceiling of level 1, was a concrete slab. The bays stood on top of this slab. The working platform was approximately two metres above the slab, and the formply ceiling, which is depicted in paragraph [30] above, would have been a further two metres above the working platform prior to its dismantling.
The stacked bays were arranged in a grid "network" on level 2, and they supported the entire formwork deck used to guide the concrete slab poured onto level 3. Counsel for Calcono advised the Court that in between each of the stacked bays in the network was a space of approximately 1.8 to 1.9 metres. This space was covered by the working platform, such that it would be possible for a worker to walk on the working platform from one bay to another. A worker could access the working platform by climbing up from its outside edge, using the metal framework as a makeshift ladder.
Mr Kabic provided a diagram of the site, which is reproduced below:
The diagram depicts six of the stacked bays on the site at the time of the fall. The tall rectangular structure with four crosses running vertically along it is a depiction of a tower crane that had been set up on the site. Each concrete slab was poured with a penetration such as to allow the crane to be situated as depicted in the diagram. The "X" marked at the very left of the diagram was drawn by Mr Kabic to represent Mr Vujatovic's location immediately prior to the fall. The markings "3m 4m S.V." were placed by Mr Vujatovic in his cross-examination to mark roughly where he thought he was standing immediately prior to Mr Kabic's fall.

Mr Kabic's evidence: before the fall

Mr Kabic gave evidence that on the day in question it was raining and windy. Mr Kabic said that he was working on the third level but because of a sudden downfall he was told by his foreman, Mr Calautti, to change his place of work. He and Mr Vujatovic then went to the second level. Mr Kabic said that he and Mr Vujatovic were directed "... to remove materials off the platform and to remove the platform itself and to put the back dropping and after that clean the materials and to stack it up."
No explanation was provided by what was meant by the words "to put the back dropping". It may have been a reference to the back propping beam, but if so, precisely what was meant to be conveyed by the instruction was never clarified in the evidence.
Mr Kabic said that he was standing on the work platform at the second bay from the left of the crane shaft (refer to the diagram at paragraph [34] above) removing materials that had already been stripped and handing them down to Mr Vujatovic who was standing on the concrete floor on level 2. He said that when he climbed onto the work platform he noticed that it was wet from water and was slippery. He said that, noticing it was slippery, he was careful.

The fall

According to Mr Kabic, as he was handing down a piece of timber to Mr Vujatovic, he slipped and fell backwards, onto his back, and fell towards the concrete floor of level 2 underneath him. His fall was broken by some rubbish, consisting of pieces of timber and plywood, which is depicted on the diagram at paragraph [34] above as the series of crossed lines between the first and second stacked bays from the left of the crane shaft.
Mr Kabic said that Mr Vujatovic went off to seek assistance and he remained lying where he fell for between ten to 15 minutes before he was lifted up by a contractor on the site and driven to the Royal Prince Alfred Hospital.
Mr Kabic's version of events, which was accepted by the primary judge (at Judgment [250], [253] and [258]), squarely places him as standing on top the working platform before he fell.
Calcono disputed this version of events. It relied on the evidence of Mr Reeves.

Mr Reeves' evidence

In a statement made on 21 June 2016 for the purposes of these proceedings, Mr Reeves said: "18. On the day of the incident the Plaintiff was working on stripping/dismantling the formwork supporting the level 3 slab. This activity had to be carried out from underneath such that the Plaintiff was working on level 2. … 20. On the date of the incident the network of metal formwork frames was still in place on level 2, and those frames were supporting the formwork deck for the level 3 slab."
Mr Kabic's evidence was not that he was stripping or dismantling formwork supporting the level 3 slab, but rather that he was removing from the platform pieces of timber that had already been stripped from the formwork supporting the level 3 slab. This was also the effect of Mr Vujatovic's evidence.
Mr Reeves gave oral evidence that: "A. The subfloor or formwork had been removed which was the underneath of the soffit forming from level 3 had all been removed and stripped and back pocketing was wound up in place. ... A. The catch deck where the plaintiff was laying was still 80% inconstructed (as said). They were in the process of removing plywood, which is the top layer of the catch deck, to therefore be able to strip the timbers from below. There was material stacked around the worker where he was laying and there was various piles of other material being denailed. Q. Was there any material up on the safety catch deck? A. Not any excess material, only what they were working with and been removing. HIS HONOUR: Excuse me, Mr Perla. Q. You said I think that it was 80% inconstructed. Do you mean- A. 80% was still constructed, sorry. It had not been fully removed, they'd only just started to remove the ply."
In other words, according to Mr Reeves' oral evidence at trial not only had the removal of the formwork supporting the slab on level 3 been completed (contrary to his earlier 21 June 2016 statement), but there were no timber beams on the catch safety deck that needed to be passed down by the plaintiff to his co-worker. Rather, the plaintiff and Mr Vujatovic were in the process of starting to dismantle the floor of the platform by removing the plywood.
Mr Reeves made a further statement dated 5 August 2016, in which he provided two sketches, the first (the lower sketch) being a drawing of the work platform and its location relative to the edge of the building, and the second (the upper sketch) being a depiction of where he thought Mr Kabic was located immediately prior to the fall. Those sketches are reproduced below:
The upper sketch requires some further explanation. Mr Reeves drew the plank without the stick figure on it during his examination-in-chief to replace what was represented by the plank with the stick figure on it. It was redrawn to clarify that the elevated part of the plank on which Mr Kabic was standing was resting on the vertical cross-brace, rather than the straight horizontal brace, as originally shown. No reliance was placed on the original form of the diagram.
The second sketch did not place Mr Kabic on top of the working platform, at a height of some two metres above the concrete surface of level two. Rather, it depicted Mr Kabic as standing on a single plank or "bearer" positioned in between the 45-degree cross brace of the bottom bay, that is, underneath the working platform. Mr Reeves estimated the height of the plank as 1.2m above the concrete floor of level 2.
Mr Reeves was not present when Mr Kabic fell. The primary judge rejected as inadmissible assertions made by Mr Reeves in his statement of 5 August 2016 that Mr Kabic had been standing on the plank and using it as a temporary work platform. On Mr Reeves' drawing, Mr Kabic, if standing at the highest point of the plank, would have fallen only approximately 1.2 metres.
Counsel for Calcono accepted that it would seem that the only way such a plank could be level was if the side of the plank that was resting against the cross-brace was placed in such a way that either side of it rested against the "V" shape of the cross brace at equidistant points. On Calcono's case theory, Mr Kabic was walking up the plank from the concrete floor of level two while he was in the process of dismantling the working platform itself. On this version of events, Mr Kabic was using an inherently unsafe system of work which he had devised by himself, and it was the use of this system of work that was said to have led to his fall.
In cross-examination, Calcono's version of events was put to Mr Kabic and rejected by him: : "Q. Mr Kabic, I want to suggest to you that you weren't actually working from a work platform that spanned a number of metal scaffolding bays as you've said in your evidence? A. INTERPRETER: Can you repeat the question, please? Q. Of course. I want to suggest to you that you were not working on a work platform that spanned a number of metal scaffold bays as you've said in your evidence? A. INTERPRETER: It was made like that. Q. I want to suggest to you sir, that at the time of your incident at approximately 1.30pm on 26 May 2011, the catch platform or the working platform had been mostly dismantled? A. INTERPRETER: No. Q. And that what was left of the catch platform or the working platform was a number of bearers with no plywood on top of them? A. INTERPRETER: That's not true. Q. And you were working, sir, from a single bearer located below where the catch platform had been? A. INTERPRETER: That's not true. Q. That single bearer was a bearer that you had placed between the diagonal cross braces on the first layer of the frame where you were working? A. INTERPRETER: That's not true. Q. And the diagonal cross braces on the top layer of the frame were in fact in place at the time of your incident? A. INTERPRETER: That's not true. Q. You were in the process, sir, of dismantling the catch platform or working platform that was above you at the time of your incident? A. INTERPRETER: Can you repeat the question because this - Q. I am suggesting to you that you were in the process of dismantling the catch platform or the working platform that was above you at the time of your incident? A. INTERPRETER: That's not true, I was working - standing on the platform not that I was under the platform."
This case theory was also put to Mr Vukatovic, who corroborated Mr Kabic's version of events in cross-examination.
As mentioned, Mr Reeves did not see Mr Kabic fall. In a statement made on 5 November 2011 he said he was called to an accident on level two on 26 May 2011 and saw Mr Kabic "lying underneath and directly behind the safety deck he appeared to have been working from". In a report made on 26 May 2011 entitled "Register of Injury", Mr Reeves recorded that the job on which Mr Kabic was engaged was as follows: "Stripping Form work Fell off Safety Deck"
The primary judge recorded that: "228 Mr Reeves agreed that, when he made his first statement of 5 September 2011, his memory inevitably was better than it is now. He also had the lost work diary available when he prepared that statement. He agreed that that statement speaks of the plaintiff having fallen about 1.8 metres."
A minor injury report created by Calcono either on 26 or 27 May 2011 stated that Mr Kabic "fell of [sic] safety deck lost balance". Another contemporaneous report of Deicorp, entitled "Accident/Dangerous Incident Investigation Report" stated that he was "Working on a safety deck around 1.5 above ground. Fell from the deck onto his shoulder". It also stated "Rain o'night. May have lead to moisture on work boots/safety deck ... (illegible)".
In respect of Mr Reeves' 21 June statement, an objection was made to so much of Mr Reeves' evidence that went to what Mr Kabic was doing, or not doing, or where he was doing it, before Mr Reeves' arrival on the scene. The reason for the objection was that Mr Reeves was not present at the time of the fall, and would not know where Mr Kabic was positioned, and whether Mr Kabic was using the single bearer in the way contended by the respondents. The primary judge accepted that Mr Reeves could only give evidence of his observations after the time at which he arrived at the scene. Similar evidence given in the 21 June statement referring to the height fallen by the plaintiff was also not received into evidence.
As noted above (at [50]), similar objections were allowed in respect of the 5 August statement.
Mr Reeves gave the following evidence in chief: "Q. Mr Reeves, are you able to tell his Honour what, if anything, you noticed about the metal frame near where you attended upon the plaintiff in terms of any timber bearers? A. The area in which the plaintiff was found, there was a bearer, which is a 4 x 8, 90 mil by roughly 160 mil wide of steel sitting against the formwork frame on a roughly 35 degree angle against the ground to still one end on the formwork frame. Q. Which part of the formwork framework was it touching? A. It was touching across the brace, the side brace. Q. Sorry? A. The side cross brace of the formwork frame. Q. Is that the diagonal brace? A. That is the diagonal side brace. Q. Where was that bearer relevant to the safety catch deck? A. That was below on the bottom rung of frame 1 on the ground floor, the safety catch deck was on the top of frame 1, between frame 1 and frame 2. Q. How high was the end that was touching the diagonal cross brace from the ground? A. Roughly 1 metre to 1.2 metres off the floor. Q. Relevant to the safe work method statements used by Calcono, what if anything did you understand that timber bearer was being used for? A. The bearer was used as a piece of material that was built in the deck and is not to be used as a stripping plank. Q. Relevant to the safe work method statement, what activity was the purpose of that bearer being placed on at least one side of the diagonal cross brace? BARTLETT: I object, your Honour."
Mr Reeves left the courtroom. Counsel's question was allowed by the primary judge, but only insofar as it related to what use, under Calcono's safe work method statement, could be made of a bearer in such a position, and not what Mr Kabic was, in Mr Reeves' opinion, actually using the bearer for. Counsel for Calcono and Deicorp confirmed this was all he sought to elicit. On Mr Reeves' return he gave the following evidence: "Q. Mr Reeves, relevant to the Calcono safe work method statement, what did you understand the timber bearer that was placed against at least one end of the diagonal cross brace was being used for? A. They were using it to stand on to remove their formwork from. Q. When you say the formwork, what formwork are you referring to? A. They were removing the plywood from the safety catch deck."
Having regard to the judge's ruling, that evidence could not be used as evidence that Mr Kabic was standing on the bearer to remove plywood from the safety catch deck.
On appeal Calcono relied on the fact that Mr Reeves was not cross-examined on his version of where Mr Kabic was when he fell. There was no occasion for Mr Kabic's counsel to do so. Mr Reeves' assertions that Mr Kabic was standing on a bearer under the safety deck had been rejected as inadmissible. There was therefore no need for Mr Kabic's counsel to cross-examine Mr Reeves on his theory, although his prior inconsistent statements would have provided fertile material for cross-examination had it been necessary to do so.
The primary judge did not err in accepting the evidence of Mr Kabic and Mr Vujatovic as to where Mr Kabic had been standing before he fell.

The rain

The primary judge found that: "254 Fifthly, it had been raining on the day of the fall, although intermittently and not always heavily. 255 Sixthly, some of the wood on top of the platform was formply. 256 Seventhly, formply is smooth and therefore inherently slippery. When wet, it is even more slippery. 257 Eighthly, the plaintiff was standing on wet formply whilst manipulating a piece of timber. He slipped as a result of standing on that wet formply. ... 259 Tenthly, the location was generally wet. On the other hand, I am not satisfied that water was gushing in large quantities onto any part of the location. 260 Eleventhly and finally, I am not satisfied that Mr Calautti saw that the platform itself was wet. I am satisfied, however, that he observed that the general location was wet, but nevertheless did not countermand his direction that the plaintiff and Mr Vujatovic work in that area. ... 336 To recap yet again, I am satisfied that the plaintiff was standing on wet, slippery formply when he slipped and fell. I believe that the combination of factors of him being in an elevated position; that position not being enclosed by any structure; him standing on a piece of smooth, chemically treated wood that was wet; and him having been directed to fulfil that task by a foreman who saw the general wetness of the area, caused him to fall a distance of two metres."
Calcono submitted that the primary judge erred in making these findings. It also said that the primary judge failed to give sufficient reasons for the findings. Neither contention is established.
Calcono relied upon Mr Reeves' evidence. It noted that the primary judge had found that Mr Reeves was not shown to be dishonest. In contrast, the primary judge made adverse findings about Mr Kabic's credibility arising from evidence that he gave in relation to his claim for damages that the primary judge did not accept.
The primary judge also found that Mr Vujatovic was not dishonest and was unbiased. Mr Vujatovic corroborated Mr Kabic's evidence as to the plywood on the catch deck being wet.
Mr Kabic gave evidence that it was raining the day before the incident, as well as on the morning of the day of the incident.. Mr Kabic said that he was working on the top of the concrete slab on level 3, which was "exposed to the elements" and had no roof and that just before lunchtime there was a sudden downpour of rain. As a consequence of the downpour, Mr Calautti directed Mr Kabic to go down a level. In cross-examination, Mr Kabic said that it was raining constantly throughout the morning. This is not inconsistent with there being varying degrees of severity of downpour, with the downpour just before lunch being severe enough to prompt Mr Calautti to direct Mr Kabic to work on level two instead.
Mr Vujatovic gave evidence that the rain started "before lunch, after breakfast", and that when it started he was directed to go downstairs.
Mr Reeves, on the other hand, said that when he attended to Mr Kabic after the fall and rendered first aid, Mr Kabic's clothing was dry. He denied that water was present at the site of the fall, and said that if there were any water present he would have written it down in his first aid form, which did not make any mention of water.
Whether the rain was intermittent or constant or whether Mr Kabic was required to work in the rain is neither here nor there. Mr Kabic's evidence places him on the working platform, underneath the level three concrete slab. The relevant inquiry is whether the working platform itself was wet as a result of rainwater that had managed, in one way or another, to deposit itself on the platform.
Mr Vujatovic gave evidence that the downpour which prompted Mr Calautti to order the workers to move down a level started at approximately 10:00 to 10:30 am in the morning. After relocating their tools from the third floor, Mr Vujatovic said that he worked with Mr Kabic, passing wet pieces of timber, for about one hour before Mr Kabic's injury. The fall took place at some point after midday (Judgment [65]), roughly between 12:45 pm and 1:00 pm. Mr Kabic's being shielded from most of the rain for two or so hours is more than adequate explanation of his clothes being dry, but it does not eliminate the possibility that the working platform itself was still wet.
Mr Kabic gave evidence that the rainwater was being directed onto the working platform through spouts or small holes in the overhead concrete slab, and that it was wet when he was directed by Mr Caloutti to go onto it. It is through these small holes that rainwater would enter level two and splash onto the working platform on which Mr Kabic was working. Mr Kabic also said that some rain managed to pour in from the side of the floor exposed to the street.
As noted above (at [56]), the contemporaneous report created by Deicorp acknowledged that overnight rain might have led to moisture on the safety deck.
The primary judge recorded that in stark contrast to the evidence of Mr Kabic and Mr Vujatovic, Mr Reeves stated that the weather on the day was fine. Mr Reeves was able to say this because he recalled that the surveyors were using lasers and lasers would not have worked in wet weather (Judgment [193]). Mr Reeves did not accept that water was dripping onto the location where Mr Kabic fell. This was because Mr Reeves said that any water would be channelled away by the structures that were in place (Judgment [194]).
The primary judge also recorded that Mr Reeves accepted that it would not be consistent with proper safe industry practice for a person to be directed to work in the rain, especially at a height. Mr Reeves did not know of a stated policy within Calcono's OHS documents that no employees were to work in the rain, but he said that such a policy would not surprise him (Judgment [214]-[215]). The primary judge also recorded that Mr Reeves did not claim to have inspected the safety deck from which Mr Kabic claimed he fell (Judgment [242]).
Calcono submitted that the distance between the crane penetration from the site of the fall and the fact that the perimeter edges of the building were covered by shadecloth which reduced the amount of water that could penetrate the internal surfaces meant that it was improbable that if it were raining, there could be moisture on the safety deck. That does not answer the explanation that the moisture on the safety deck came from spout holes and does not answer the evidence of Mr Kabic and Mr Vujatovic that the plywood was in fact wet.
At trial Calcono relied upon rainfall tables kept by the Bureau of Meteorology. The Bureau published recordings of rainfall. At sites at Observatory Hill, Fort Denison and Sydney Airport the records suggested that there was no rainfall between 9.00am and 11.00am on 26 May, but there was rainfall of 9.4mm at Observatory Hill, and 9.2mm at Sydney Airport in the 24 hours to 9.00am on 27 May. The primary judge held (Judgment [240]) that the rainfall records were inconclusive, not only as to location, but also as to timing and did not rule out the possibility of some rain at the Redfern building site on 26 May 2011. That finding was well open and was not challenged.
There was ample evidence upon which the primary judge could have found as he did that Mr Kabic was standing on wet formply whilst manipulating a piece of timber on which he slipped (Judgment [257]) and that the "location was generally wet" (Judgment [259]).
The primary judge found: "318 The plaintiff was standing on a piece of formply in the seconds before he fell. The formply was smooth, wet, and therefore slippery. Contrary to the objection taken by counsel for Deicorp and Calcono during the hearing, and the written submissions maintained at the end of it, I do not believe that one requires expert evidence for the straightforward proposition that smooth items are inherently slippery, and such items are more slippery when they are wet. 319 The slipperiness of the formply, caused by its wetness, caused the plaintiff to slip."
Calcono contested these conclusions. It said that expert evidence would be needed to conclude that the surface of the catch deck of treated formply would be more slippery if the surface were wet and that there was no admissible expert evidence to establish that proposition.
As a general proposition, it is common experience that if a surface is wet the liquid reduces the friction on the surface, making it more slippery (Australian Oil Refining Pty Ltd v Bourne (1979) 54 ALJR 192 at 193-194).
Without deciding the question, it may be that for a special surface such as the treated plywood in this case, which is outside common experience, expert evidence would be needed to establish that the surface, if wet, would be more slippery than it would be when dry.
But Mr Kabic adduced such evidence through a Mr Ian Burn of HL Burn & Associates, a consulting engineer whose expertise was not challenged. He said that: "Formply is manufactured with specific coatings (typically a high density phenolic overlay) intended to minimise the adhesion of poured concrete to the formply surface. This both improves the finish on the concrete surface and facilitates stripping after the fresh concrete cures. Any surface that is designed to facilitate stripping and prevent adhesion of fresh concrete as it cures is going to be potentially slippery under dry condition slippery under wet conditions. By assigning a worker to a work platform constructed from formply with a wet surface there is a high probability the worker will slip on the wet surface."
Evidently words are missing in the second sub-paragraph quoted above. Either "and" or "and more" should have been inserted between "dry condition" and "slippery". The rest of Mr Burn's report shows that the words "and more" should have been inserted: "People have been known to slip on flat formply surfaces when the surface is dry. When the surface is wet a known slippery surface becomes hazardous ... Formply does not have a high friction surface so it needs to be kept dry" ... Construction work can be hazardous due to the presence of dirt and other loose debris lying on relatively smooth hard surfaces. When the surface is treated to ensure its slipperiness, as is the case with formply, the slip hazard is exacerbated. The presence of moisture on the surface in addition to any dirt/grit only further serves to increase the likelihood of slipping."
Calcono submitted that this evidence should have been rejected because it did not satisfy the requirements of s 79 of the Evidence Act 1995 (NSW) because there was no reasoning or analysis addressing the questions of whether, as a matter of physics, the formply had a particular coefficient of dynamic friction when dry and whether that coefficient was different when wet, and if so, what that difference was.
If the question were precisely how much more slippery the formply was when wet than dry, then that objection would have had substance. But as in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [49], exactness was not required. Mr Burn had the expertise based on experience of the hazardous nature of treated formply when wet to express the opinions he did, and there was no need for greater precision.
Calcono submitted that the primary judge's findings that he did not require expert evidence for the straightforward proposition that smooth items are inherently slippery and such items are more slippery when they are wet was contradictory to decisions of this Court in Jackson v McDonalds Australia Ltd [2014] NSWCA 162 at [119]-[123] and Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [81]-[91].
Had the slipperiness of the formply surface been the only reason for Mr Kabic's sustaining his injury, that is, had he simply slipped and fallen onto the formply surface, then the question of whether the slipperiness of the surface was not only causative of the fall, but should have been prevented by the taking of other steps, would have loomed large. That was the question posed in Jackson v McDonalds Australia Ltd and Murray v Sheldon Interiors Pty Ltd. In Jackson v McDonalds Australia Ltd, the plaintiff claimed that he slipped on stairs after walking across a floor of a McDonalds Restaurant that had been mopped. The primary judge found that the plaintiff had overstated the amount of water on the floor across which he had walked, and the extent of the area of mopping, that the plaintiff had not proved that there was any water left on his shoe when he reached the steps on which he fell and rejected the plaintiff's evidence of the mechanics of the fall (at [113]). Those findings were accepted on appeal. In relation to the first finding, Barrett JA observed (at [119]) that: "But there is nothing in common experience that tells us that someone with wet shoes who traverses a floor having the particular characteristics of the McDonald's floor is more likely to slip because of water on their shoes than for any other reason, such as inattention (because engaged in conversation or for any other reason), excessive speed or failing to take advantage of a handrail. People wearing dry shoes walk on wet stairs every day and do not slip. People wearing wet shoes walk on dry stairs every day and do not slip. People wearing dry shoes slip on dry stairs every day. And, as Heydon JA observed in Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32], stairs are, in any event, 'inherently, but obviously, dangerous'."
In the present case there was expert evidence that water on the formply would materially increase the risk of slipping and no other cause of slipping, such as inattention, excessive speed or failing to take advantage of a handrail was raised.
In Murray v Sheldon Commercial Interiors Pty Ltd the plaintiff fell from a ladder when working on a building site and claimed that he slipped because of dust. He sued the head contractor for failing to keep the site sufficiently dust-free. This Court held that a report given by Mr Burn in that case ought to have been rejected, but in any event had no weight, because of the absence of reasoning and the discrepancies between the instructions given to Mr Burn and the primary judge's findings (at [81]).
That finding did not mean that the primary judge's findings in this case were "directly contradictory to binding authority" as Calcono contended. In Murray v Sheldon Commercial Interiors Pty Ltd the question was whether the plaintiff, who was wearing work boots, fell from a ladder because of dust on the ladder that the head contractor ought to have caused to be removed. Mr Burn's report in Murray v Sheldon Commercial Interiors Pty Ltd did not address the actual stepladder from which the plaintiff fell. Nor did it address the actual shoes that the plaintiff was wearing and made no quantitative assessment of the coefficient of friction of the work boots that the plaintiff was wearing when he fell compared with other shoes to which Mr Burn's report in that case was addressed. One was a dress shoe and the other a gym shoe (at [20] and [21]). There was also a discrepancy between the actual ladder in question and the ladder assumed by Mr Burn (at [23]).
It was in these circumstances that this Court held (at [81]): "[81] The primary judge regarded Mr Burn's report as having no weight, given the absence of reasoning and the discrepancies between the instructions given to the expert and his Honour's findings. We agree. We do not regard the fact that Mr Burn was not cross-examined as relevant. The report should not, in truth, have been admitted at all: see Dasreef Pty Ltd v Hawchar [2011] HCA 21 ; 243 CLR 588 at [91]-[92]. In any event it was open to accept the submission at trial that Mr Burn's opinion could not assist Mr Murray in making out a case. There was no reasoning process exposed to support the opinions expressed. Further, falling from a smooth metal (or even plastic) platform, presumably while wearing a dress shoe or gym shoe, is completely different from slipping on a metal step while wearing work boots."
The rejection of a report of Mr Burn in Murray v Sheldon Commercial Interiors Pty Ltd did not require the rejection of Mr Burn's report in the present case. I accept the submission of Mr Chen SC that the primary judge did not need to make a finding about precisely how slippery the platform was and that the essential finding of negligence was that Mr Kabic was working on a slippery surface at a height without a guardrail in place to protect him from a fall to the ground.
I do not accept Calcono's submission that "central to the appellant's case was the assertion that the plywood was slippery when wet, despite the fact that he was wearing work boots that had a rubber sole." This submission failed to address the absence of an enclosure to prevent Mr Kabic from falling from the deck.
The primary judge found (Judgment [327]) that a reasonable person would have had "... some form of enclosure with regard to a deck that was approximately two metres above a hard floor on which pieces of timber were being manipulated". His Honour repeated: "336 To recap yet again, I am satisfied that the plaintiff was standing on wet, slippery formply when he slipped and fell. I believe that the combination of factors of him being in an elevated position; that position not being enclosed by any structure; him standing on a piece of smooth, chemically treated wood that was wet; and him having been directed to fulfil that task by a foreman who saw the general wetness of the area, caused him to fall a distance of two metres."
The sub-contract between Deicorp and Calcono required that workers be protected by handrails, guards or barricades where there was any step or drop of more than one metre. The sub-contract between Deicorp and Calcono informs, although it does not define, Calcono's duty of care to Mr Kabic (Argo Managing Agency v Kammessy [2018] NSWCA 176 at [100]-[101]).
The primary judge accepted the evidence of Mr Kabic and Mr Vujatovic that there were no cross-braces or other structures around the upper level of the platform so that after Mr Kabic slipped there was nothing to break his fall (Judgment [258]). Calcono challenged that finding.
When drawing the diagram at paragraph [34] above, Mr Kabic specifically omitted cross-braces on each of the higher bays to the left of the crane, including the bay from which he said that he fell. When asked about this, Mr Kabic confirmed that it was because there was no cross-bracing in place. Mr Vujatovic corroborated this evidence.
Mr Reeves, on the other hand, said that both the top and lower bays had adequate bracing installed.
The primary judge preferred the evidence of Messrs Kabic and Vujatovic on the absence of cross-braces on the upper levels. Contrary to Calcono's submissions, this was not an error. Nor was it attended with insufficiency of reasons.
The primary judge recorded that neither Mr Reeves nor Mr Vujatovic was shown to be dishonest (at Judgment [235]), but acknowledged (at Judgment [236]) that Mr Kabic's credibility was called into question by a different finding as to the degree of his injuries. Notwithstanding this, the primary judge regarded Mr Vujatovic to be an independent witness, and in respect of whom the judge had no doubts as to credibility (at [238]-[239]).
Specifically in relation to the absence of cross-bracing, the primary judge noted that Mr Reeves did not claim to have inspected the upper level of any frame, including the one from which Mr Reeves inferred that Mr Kabic fell (at [242]).
Nor was there any reason for the primary judge, on the basis of any other evidence, to infer that the cross-braces were present. Mr Kabic gave evidence that the diagonal cross-braces were removable. Mr Reeves gave evidence that the cross-braces have to be in place by law and are inspected prior to a concrete pour. But by the time of the incident the concrete had already been poured. He also said that the cross-braces were necessary to keep the frames from leaning. But there was no evidence demonstrating that there would be some inherent unlikelihood that the cross-braces would be absent at the stage of construction that level two had reached at the time of Mr Kabic's injury. Their absence is consistent with the fact that the phase of construction on level 2 was the deconstruction of (i.e. stripping and removing) the temporary structures on level 2.
Finally, the primary judge drew a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference against the respondents due to their failure to call Mr Calautti (who was described as being "in the thick of things").

Primary judge's Jones v Dunkel inference

Calcono challenged the primary judge's finding that the absence of any evidence from Mr Calautti meant that he could more safely accept the case of Mr Kabic and that Mr Calautti's evidence would not have assisted Calcono's case. The primary judge said: "[244] Eighthly and finally, the failure of counsel for Deicorp and Calcono to call Mr Calautti (and to a lesser extent, the gentleman known as Zoran), is surely significant. It was not explained by evidence of his unavailability, his refusal to cooperate with solicitors, or anything else. The closest counsel came to an explanation of the failure to call Mr Calautti was in discussion between Bench and Bar table during his final address (Transcript at 499, line 29) as follows: …[I]n my submission, when your Honour has evidence from Mr Reeves, who attended upon the scene of the accident almost immediately after it occurring, who made observations and [has] given evidence of the state of the area, the weather on the day, Mr Calautti could not be expected to say anything more on those issues. [245] I do not accept that submission. Merely because a witness may give evidence corroborative of another witness that has a degree of repetition to it does not discount the probative value of the evidence of that first witness. Indeed, one would often expect corroborative evidence to be repetitive. [246] Nor does that repetitive aspect detract from the limited inferences that one may draw, in accordance with Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, adversely to the party or parties who do not call that witness. Those inferences are, in a nutshell, that one may more safely accept the case of the opponent, in the absence of that expected contradicting evidence; and, secondly, that the evidence of the uncalled witness would not have assisted the case of the party expected to call him or her. [247] Furthermore, it will be recalled that Mr Calautti was 'in the thick of things': it was he who directed the plaintiff and Mr Vujatovic to work at that particular location; he was the foreman of those two workers; he attended with them at the particular location; according to them, he was in a position to see that the general vicinity was wet before the plaintiff commenced his task; and he returned to the location after the fall occurred. [248] In short, I think that it is very significant that Mr Calautti was not called to give evidence about: the weather on the day of the fall; the number of floors above the level upon which the plaintiff was working; the height of the platform from which the plaintiff was directed by Mr Calautti to work; what materials would usually be on such a platform at the building site; what materials actually were on the platform on the day in question; whether there were any cross-braces on the upper level of the metal framework; and the state of wetness of the location, both generally and with regard to specific aspects."
Calcono submitted that Mr Calautti's evidence would merely have been corroborative of Mr Reeves' evidence. That is not so. Even if it were, it would not preclude the drawing of a Jones v Dunkel inference. Mr Calautti could have given evidence as to the weather on the day, whether rain had or might have made the catch deck wet, whether all of the timber pieces from the formwork supporting the floor of level 3 had been removed from the catch deck, whether Mr Kabic and Mr Vujatovic were engaged in removing the catch deck (as Mr Reeves asserted), and whether the upper cross-braces had been dismantled. The primary judge did not err in drawing an adverse inference against Calcono for not calling Mr Calautti.
For these reasons Calcono's cross-appeal should be dismissed.

Contributory negligence

The whole of the primary judge's reasons for his finding that damages should be reduced by one-third on account of Mr Kabic's contributory negligence were as follows: "[343] Turning now to the topic of contributory negligence, I find that the plaintiff was well aware that he should not work in the rain. That was not only a matter of common sense, but also as a result of his experience on other building sites, and indeed the very building site in question. [344] Efforts had been undertaken by Deicorp and Calcono to ensure that the plaintiff appreciated his own responsibilities with regard to working safely. Even accepting that he had little or no facility in English, I nevertheless consider that he understood his general responsibility in that regard. [345] As well as that, it is not clear on the evidence that his foreman Mr Calautti was in a position to see that the wood on top of the platform was wet. And yet that was obvious to the plaintiff himself. Indeed, his evidence was that, before he fell, he felt his work boots slipping on the wet formply. [346] It is true that a labourer in the position of the plaintiff may have been reluctant to refuse (in effect) to work. Nevertheless, if the plaintiff had simply drawn the state of the wood on the platform to the attention of his foreman, and proposed that he undertake different work at a different location of the building site for a time until it dried; or proposed an extra break to let the timber dry, with an equivalent finishing up a little later that day; or asked that a towel be provided so that he and Mr Vujatovic could at least have wiped down the formply on which he was standing; or some other reasonably practicable ameliorative step; the fall would in all likelihood not have happened. [347] I am affirmatively satisfied that the negligence of the plaintiff in not drawing the attention of his superiors to the unsafe conditions in which he had been directed to work contributed to the fall. And I consider that contributory negligence in all of those circumstances should be assessed at 33 1⁄3 %."
Notwithstanding [343] quoted above, the act found to constitute contributory negligence was not Mr Kabic's working on the platform when it was wet. The primary judge had found that Mr Calautti had directed Mr Kabic and Mr Vujatovic to work at the particular location Mr Kabic was working. The act of contributory negligence, as found, was in Mr Kabic's not drawing the attention of his superiors (presumably the foreman, Mr Calautti) to the unsafe conditions in which he had been directed to work.
With respect to the primary judge his finding at [260] (quoted at [64] above) and at [345] quoted above (that he was not satisfied or that it was not clear on the evidence that Mr Calautti was in a position to see that the top of the platform was wet) reversed the onus of proof of establishing contributory negligence. The primary judge appears to accept that if Mr Calautti could see that the platform was wet, Mr Kabic could not have been guilty of contributory negligence from working on the platform as directed without drawing the wetness of the platform to Mr Calautti's attention. That must be so.
The act of contributory negligence found by the primary judge was not included in the particulars of contributory negligence in Calcono's defence. The only particulars of contributory negligence provided were "failure to keep a proper lookout" and "failure to take care for his own safety". The latter was not a particular at all.
Mr Kabic gave evidence that when Mr Calautti instructed him and Mr Vujatovic to remove materials from the platform, he was standing on the floor and the height of Mr Calautti's head was below the platform. However, both he and Mr Vujatovic said that they noticed water dripping down from the ceiling. The primary judge found that Mr Calautti observed that the general location was wet (Judgment [260]). This is only consistent with an acceptance of their evidence that water was dripping from the ceiling (at [77] above).
Mr Gross QC, who appeared for Mr Kabic on appeal, rhetorically asked whether it was unreasonable for Mr Kabic not to point out to Mr Calautti something of which Mr Calautti had to be aware. If the general location were wet Mr Calautti would be aware that the wood on the top of the platform would be wet.
A finding of contributory negligence can only be made if it was reasonably practicable for Mr Kabic to have taken an alternative course of conduct which would have obviated the risk of injury. The primary judge acknowledged that someone in Mr Kabic's position may have been reluctant to refuse (in effect) to work. An employee is not guilty of contributory negligence by following orders (Hartge v F Lassetter & Co Ltd (1916) 16 SR (NSW) 174 at 182-183; Meani v Sungravure Ltd [1964] NSWR 11 at 19; Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 33; [1964] HCA 16).
In response to leading questions from Mr Chen SC, Mr Kabic agreed that he felt compelled to work when the platform was wet because of the direction given by Mr Calautti.
In cross-examination by Mr Perla for Deicorp and Calcono, Mr Kabic gave the following evidence: "Q. You understood and just so his Honour understands and it's abundantly clear, that if you were directed to work in an unsafe environment or something that you thought was unsafe you had an obligation to either advise your employer or somebody else in a position of supervision or control? A. INTERPRETER: For me to report you mean? Yes."
However, Mr Kabic denied that he knew that Calcono had a policy that meant no employees or persons working under their supervision were required to work in the rain. He said that before 26 May he occasionally was required to work in the rain. He then gave the following evidence: "Q. Did you at any point on these occasions when you say you had to work in the rain tell anybody that you were concerned about working in the rain? A. INTERPRETER: No. Q. Why not? A. INTERPRETER: Because I was afraid that I'm going to lose my job."
Moreover, before it can be found that a plaintiff who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm, the defendant must show that the plaintiff's failure to take precautions contributed to the injury suffered. The primary judge postulated that the fall would in all likelihood not have happened had Mr Kabic drawn the state of the wood on the platform to Mr Calautti's attention and proposed that he undertake different work at a different location until the wood was dry, or take an extra break and extend finishing time until later in the day, or ask for a towel to be provided so that the formply could be wiped down.
Because Mr Calautti was not called, there was no evidence as to what his response would have been to those suggestions. As Mr Gross submitted, a question that would need to be answered is whether Mr Calautti would have been reluctant and perhaps resistant to the idea that he should withdraw his previous orders simply on the basis that Mr Kabic made any of the various propositions that the primary judge proposed. Mr Gross submitted: "34. Similarly, if the plaintiff, consistently with [J346] had said: 'Why don't I do different work at a different location on the building site for a time until it dries?' or else 'Why don't I take an extra break to let the timber dry and I will finish up a little later today to make up for the time lost?' Mr Calautti may well have asked: 'What different work? Where are you going to do it? How long do we have to wait until it dries?' He may have said: 'How do we know whether it's going to dry at all for the rest of the day?' Numerous other uncooperative responses by Mr Calautti can be imagined. 35. As for the suggestion that the plaintiff could have asked that a towel be provided so he and Mr Vujatovic could wipe down the formply on which he was standing, Mr Calautti may well have replied: 'What's the point of using a towel if it's still wet?' or: 'Go and get a towel yourself, but why bother?'"
I agree.
The plaintiff is not guilty of contributory negligence if his or her conduct amounts to mere inadvertence, thoughtlessness, inattention or misjudgment having regard to all of the circumstances, including whether the employee had no real choice but to adopt an unsafe system of work (Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493-4; Ghunaim v Bart at [82]-[83]; Boral Resources at [59]-[60]; McLean v Tedman (1984) 155 CLR 306 at 315; Pollard at [15]-[16]; J Blackwood & Son at [116]; Jurox Pty Ltd v Fullick [2016] NSWCA 180 at [86]; Williams v Metcash Trading Ltd [2019] NSWCA 94 at [77]).
I agree with Calcono's submission that this is not a case of inadvertence or inattention which has resulted from familiarity and repetition or pre-occupation with matters in hand and the need for concentration upon those matters. It is an even weaker case for finding contributory negligence. Mr Kabic was doing what he was directed to do. Although he acknowledged at one point in his cross-examination that if he were directed to work in what he thought was an unsafe environment, he was obliged to advise his employer or somebody else in a position of supervision or control, he gave a cogent reason for not doing so which the primary judge did not address. The finding of contributory negligence should be set aside.

Damages

In his judgment of 22 September 2017 the primary judge made findings in respect of Mr Kabic's damages claim and invited the parties to attempt to bring in jointly agreed orders consistent with those reasons. The primary judge found: "357 I also accept, contrary to the opinion of Dr Silva, that there is no question of him returning to work as a formworker, or any other form of employment that calls for significant physical labour. 358 But, as I have explained, I consider that, for many years, the plaintiff has been capable of doing any job that involved light duties and that did not require great facility in English. At the least, I consider that he could have worked part-time in such a position at first, and thereafter would have been able to graduate to full-time work. As I have said, I do not accept that he has made a sincere effort to find such work in the past. 359 Adopting a cautious approach in favour of the plaintiff (bearing in mind my generally adverse assessment in this regard), and seeking to express that process of gradual increase in hours in a simple way, I take the view that the plaintiff has been capable of earning $600 per week after three years passed from the date of the fall; that is, from 26 May 2014 until today. 360 Finally, I accept that, but for the fall, the plaintiff would have continued to work as a formworker. That lost income in the past should be reflected in joint orders, but only by way of natural increase by inflation and the like; as counsel for Deicorp and Calcono has submitted, the increase in salary that Mr Vujatovic has enjoyed was explained by him on the basis of his own personal achievements. 361 I would be obliged, then, by jointly agreed draft orders reflecting the above findings with regard to past economic loss relating to the inability of the plaintiff to continue in his position as a formworker and all claims ancillary to it. 362 As for future economic loss, I repeat yet again that I consider that the plaintiff is capable of doing any unskilled work that does not require significant physical exertion and that does not require great facility in English. Again, I accept that there is a need for such positions to part-time, and for his hours to be gradually increased. But I am firmly of the view that there are many such positions available to the plaintiff, especially bearing in mind that he lives in a metropolis of 5 million people, not some remote or rural location. I also repeat that, in my opinion, he is so patently unsuitable for many of the positions for which he has applied in the past that, regrettably, that exercise has been something of a charade. 363 Again, future economic loss must be assessed on the basis that he is capable of working in such a position, and earning $600 per week into the future. 364 Finally, I accept that he would not have worked as a formworker beyond the age of 55 as an absolute maximum, because of the sheer physical toll of that kind of work on his body. And I have already accepted the medical evidence that, on the balance of probabilities, his ability to do that work would have ended at the age of 50. But there is no reason why he could not work in a light duties position of which I have spoken more than once until the age of 65."
In his judgment of 16 March 2018 (Kabic v Workers Compensation Nominal Insurer (No. 4)) the primary judge observed that the parties were agreed that it was not open to him to revisit any factual or legal findings that he had made in his substantive judgment, but it was open to him to clarify any ambiguity about a finding of fact that arose in that judgment (at [7]). The primary judge clarified his earlier judgment in the following terms: "10 Firstly, my finding was that, due to the physically demanding nature of the work of a form worker, the plaintiff was able to earn a higher income in that position than if he had been otherwise employed. 11 Secondly, the fall that was at the centre of the proceedings put an end to the ability of the plaintiff to engage in that employment. 12 Thirdly, for quite some time, the fall has not prohibited the plaintiff from engaging in other forms of employment. 13 Fourthly, the employment of the plaintiff as a form worker would have come to an end in any event - due to his physical incapacity to perform it - by the time the plaintiff became 50 years of age. 14 Fifthly and finally, it follows that the fall has occasioned the plaintiff no future economic loss after the point at which he becomes 50 years of age. 15 Having clarified that outstanding issue in accordance with the submission of counsel for the second and third defendants, I proceed to make orders as to quantum in accordance with the calculations provided by him, the mathematical correctness of which was accepted by his opponents, on the contingency that his substantive submission found favour. 16 The following table is extracted from the written submission of counsel for the second and third defendants, and provides the basis of my ultimate pecuniary order. Head of Damage Award Non-Economic Loss $40,000.00 Past Economic Loss $280,069.95 Past Superannuation $30,807.69 Fox v Wood $35,715.60 Future Economic Loss $144,263.10 Future Superannuation $15,263.10 Past Out-of-Pocket Expenses $102,079.03 Future Treatment $30,055.18 Subtotal $678,253.65 Less Contributory Negligence $225,858.47 Total $452,395.18"
Mr Kabic appeals against the assessment of past and future economic loss.
The primary judge's conclusions on the assessment of damages were informed by his findings that Mr Kabic was not as badly injured as he claimed to be and that there was a degree of malingering in his presentation (Judgment [269] and [270]). In making that finding the primary judge accepted the evidence of a Dr Bruce who noted a "degree of divergence between the claimed capability of movement of the plaintiff when observed and his actual ability to move when believing himself to be unobserved." (Judgment [269]). The primary judge said: "271 Eighthly, I also accept the evidence of Dr Bruce and others on the balance of probabilities that the plaintiff would not have worked past 50 doing the heavy physical labour of a formworker. I say that because I accept that, except in most unusual cases, one can only do that kind of work for a limited number of years. And it is to be recalled that the plaintiff commenced that kind of work - admittedly with some extended breaks - many years ago. 272 Ninthly, in light of the lack of clarity of the evidence about pre-existing physical degeneration, I proceed on the basis that there was some, but it was age-specific and age-appropriate. 273 Tenthly, I assess the plaintiff as a man of at least average intelligence. I say that because he has served as a soldier. He has raised a family. He has engaged in a number of occupations, one of which involved working in currency exchange. He has lived in Australia for many years, admittedly with an extended break after having returned to Serbia. He has completed a course at TAFE in English. He lives with his daughter, a university student, who is completely fluent in English. 274 In all of those circumstances, I do not believe that the plaintiff is being entirely truthful about his almost complete lack of facility in the English language. Either he is dissembling in that regard, or he is completely unmotivated to learn it, for whatever reason. And to be clear, if it is a question of a lack of motivation, I do not consider that that has anything to do with depression arising from the consequences of the fall. Whether it be dissembling or lack of motivation, or a combination of both, I take that finding into account adversely to the plaintiff. 275 Eleventhly, I am affirmatively satisfied that the plaintiff is capable of doing any job that does not require reasonably hard physical labour, and does not require great facility in the English language. I am also satisfied that there are hundreds of such jobs available to the plaintiff within the metropolitan area of Sydney. 276 Twelfthly and finally, to the extent that the plaintiff has applied for countless jobs for which he is patently unqualified on his own evidence, I assess that exercise as being in the nature of a charade. Yet again, that operates adversely to the plaintiff with regard to his credibility."
Mr Kabic challenged the primary judge's rejection of his credit. In particular, he challenges the primary judge's finding that the plaintiff's application for countless jobs for which he was patently unqualified on his own evidence was in the nature of a charade that adversely affected his credibility. Mr Kabic rightly submits that no such challenge was made to his credit at the trial. At the trial Deicorp and Calcono acknowledged that Mr Kabic had applied for numerous jobs during the period from September 2012 to July 2016 "as part of his obligations under the Workers Compensation Scheme ... whilst he didn't consider himself capable, he was prepared to attempt to do the work".
Mr Kabic correctly submitted that he was not cross-examined regarding any alleged discreditable conduct by making phoney or contrived applications to obtain employment. Rather, the cross-examination on his job-seeking activities was aimed at laying a foundation that he considered that he was fit to do the jobs for which he applied. This was relevant to determining his post-injury residual earnings capacity.
Mr Kabic also challenged the primary judge's adverse credit finding that he was not being truthful about his inability to speak English. He was not challenged about his difficulties in speaking English in cross-examination.
The primary judge made an alternative finding that if Mr Kabic were unable to speak English to the extent he claimed, then that was due to lack of motivation (Judgment [274]).
The finding that Mr Kabic could speak better English than he claimed, or, if not, was not motivated to learn English, would be relevant to a defence that Mr Kabic did not act reasonably to mitigate his damages by seeking employment for which he was fitted. No such defence was pleaded. Nor did Deicorp and Calcono submit at trial that Mr Kabic was feigning his difficulties with speaking English.
Mr Kabic sought a new trial on the assessment of damages. If the assessment of damages depends upon the assessment of Mr Kabic's credit, that order should be made. But Mr Kabic also relied upon other grounds for challenging the primary judge's assessment of damages that do not depend upon the primary judge's adverse assessment of Mr Kabic's credit.

Use of Mr Vujatovic's earnings

The first challenge can be disposed of readily. Before the primary judge Mr Kabic submitted that the earnings of Mr Vujatovic were an accurate reflection of the likely earnings which he would have received continuing to perform work as a formworker in the Sydney area but for the accident. It was agreed that at the time of the injury the plaintiff's average weekly earnings were $1,153.95. There was evidence that Mr Vujatovic's earnings were $1,350 net per week as at 31 October 2012 and $1,921.57 for the financial year ended 30 June 2016.
The primary judge found that damages for past economic loss should be assessed allowing for lost income simply reflecting the wages that the plaintiff was earning as a formworker at the building site at Redfern, adjusted "only by way of natural increase by inflation and the like". The primary judge accepted Calcono's submission that Mr Vujatovic's higher income was explained by him on the basis of his own personal achievements (Judgment [360]).
There was no error in that finding. Mr Vujatovic said that he continued to work as a formworker with different employers but his current employer had increased his wages by $2.50 per hour in 2015. This was a special increase to recognise Mr Vujatovic's special service that justified it. The employer had to describe Mr Vujatovic on his payslip as a carpenter, which he is not. The primary judge was entitled to accept Calcono's submission that the evidence did not suggest that had he not been injured, Mr Kabic would also have been paid at the higher hourly rate.

Reduction of damages for residual earning capacity

The calculation of damages for past economic loss of $280,069.95 was arrived at by allowing 17 weeks' loss of earnings (from 26 May 2011 to 26 September 2011) where the primary judge had found that Mr Kabic was totally incapacitated (Judgment [356]) ($19,617.15) and then adjusting lost earnings to reflect the primary judge's finding that after 26 September 2011 Mr Kabic could have worked part-time graduating to full-time work earning $600 per week as at 26 May 2014. This was calculated in Calcono's submissions as follows: Period CPI increased weekly wage less residual earning capacity Calculation Total 27 September 2011 - 30 June 2012 (39 weeks and 4 days) $1,153.95 x 3.6% = $1,195.49 less $150.00 = $1,049.49 $1,049.49 x 40 weeks $41,819.60 1 July 2012 - 30 June 2013 (52 weeks) $1,195.49 x 1.2% = $1,209.84 less $300.00 = $909.84 $909.84 x 52 weeks $47,311.68 1 July 2013 - 26 May 2014 (47 weeks and 1 day) $1,209.84 x 2.4% = $1,238.88 less $450.00 = $788.88 $788.88 x 47 weeks $37,077.36 27 May 2014-30 June 2014 (5 weeks) $1,209.84 x 2.4% = $1,238.88 less $600.00 = $638.88 $638.88 x 5 weeks $3,194.40 1 July 2014 - 30 June 2015 (52 weeks) $1,238.88 x 3.0% = $1,276.05 less $600.00 = $676.05 $676.05 x 52 weeks $35,154.60 1 July 2015 - 30 June 2016 (52 weeks) $1.276.05 x 1.5% = $1,295.19 less $600.00 = $695.19 $695.19 x 52 weeks $36,149.88 1 July 2016 - 30 June 2017 (52 weeks) $1,295.19 x 1.0% = $1,308.14 less $600 = $708.14 $708.14 x 52 weeks $36,823.28 1 July 2017 - 12 February 2018 (32 weeks) $1,308.14 x 1.9% = $1,333.00 less $600.00 = $733.00 $733.00 x 32 weeks $23,456.00 Subtotal for the above periods $260,986.80 Amount from paragraph 7 above $19,617.15 Total $280,603.95

This figure is reflected in the primary judge's reasons at Judgment [358] and [359].
The primary judge evidently accepted Calcono's submission that Mr Kabic had a residual earning capacity of at least $600 net per week. Calcono said this was to be less than the average of the suitable roles identified in Exhibit D1. Exhibit D1 was a joint report of a Dr Graham Hall, Consulting Occupational Physician, and a Ms Belinda Messer, Psychologist, dated 12 July 2013 described as "an Earning Capacity Assessment", being an assessment of Mr Kabic's capacity to work in "suitable employment". The report was prepared: "to identify 'suitable employment' for which the worker is currently suited within the meaning of the Workers Compensation Act 1987 (as amended by the Workers Compensation Legislation Amendment Act 2012)" and "to quantify the amount the worker is able to earn in suitable employment".
A determination of "suitable employment" for the purposes of the Workers Compensation Act is to be made regardless of whether the work or employment for which the worker is currently suited is available (s 32A). Calcono's submissions before the primary judge contained no concession that it had the onus of adducing not only evidence of the kinds of work that Mr Kabic was capable of doing, but also what jobs were open to him. That concession was rightly made on appeal. Before the primary judge, counsel for Mr Kabic had quoted Nominal Defendant v Livaja [2011] NSWCA 121 where this Court said (at [65]): "[65] ...Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation."
Mr Kabic relied upon the report dated 6 July 2015 of a Mr Ross Girdler, a vocational psychologist and rehabilitation counsellor, in which Mr Girdler expressed the opinions that Mr Kabic was unable to sustain work in any occupation for which he was currently qualified and was unlikely substantially to increase his vocational qualifications or skills through vocational training. He expressed the opinion that regardless of his ability to sustain work, Mr Kabic's injuries would continue to prevent him from securing employment.
On appeal, Calcono accepted that: "The GIO accepts it bore the evidentiary onus of establishing the kind of work that the Appellant was capable of doing and what jobs were open to him: Dal v Chol [2018] NSWCA 219 at [9] citing Rabay v Bristow [2005] NSWCA 199 at [73]-[74]; Linsell v Robson [1976] 1 NSWLR 249 at 254-255 per Glass JA; Yammine v Kalwy [1979] 2 NSWLR 151; Nominal Defendant v Livaja [2011] NSWCA 121 at [65]; Mead v Kerney [2012] NSWCA 215 at [25]-[27]; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [72]-[74]; Smith v Alone [2017] NSWCA 287 at [46]."
Calcono relied upon a report of a Ms Amy Zammit, a rehabilitation consultant with Rehabilitation Services Pty Ltd addressed to Caringbah's workers' compensation insurer. It also referred to Dr Hall and Ms Messer's Earning Capacity Assessment of 12 July 2013 and a further report of Dr Hall dated 19 July 2013. The latter is not relevant.
There was medical evidence sufficient to support the primary judge's finding that for many years Mr Kabic had been capable of doing any job that involved light duties and that did not require great facility in English (Judgment [358]). The primary judge noted (Judgment [171]) that the three doctors called, namely, Dr Guirgis, Dr Bruce and Dr Silva, agreed that he would be capable of undertaking light duties with intermittent sitting, standing, walking and other breaks (Judgment [171]). All three doctors agreed that Mr Kabic would be capable of doing the duties of light assembly work or of a benchtop nature or collecting tools or such other work depending on his qualifications and experience. This would be light work that did not require heavy lifting, frequent bending, climbing, squatting, or crawling in confined places or similar work. Dr Bruce's recommendation would be that he obtain an occupation where he could intermittently sit, stand, walk and move around so that he is not just in one position. Each of the other doctors agreed. Dr Bruce considered that if Mr Kabic were motivated he could retrain and return to work. Dr Guirgis agreed. Dr Silva considered that his injuries would not prevent him in the long term working full-time with the usual breaks doing restricted duties, being benchtop and light assembly work.
The medical evidence does not establish the availability of jobs which Mr Kabic would be capable of performing or the likelihood of his securing employment in such jobs.
The primary judge did not address that question. This was an error into which the primary judge may have been misled by Calcono's submissions.
On appeal, Calcono placed reliance upon the primary judge's finding that Mr Kabic had engaged in something akin to a charade in describing his attempts to obtain employment and relied upon other adverse credit findings, including that there was a degree of malingering in his presentation, that he was not being entirely truthful about his almost lack of facility in the English language and that his evidence as to the periods he claimed he expended on housework were excessive and unreliable.
As mentioned above at [132], Calcono did not plead that Mr Kabic failed to act reasonably by not taking up employment that was open to him and thereby failed to mitigate his loss. Nor was it suggested to Mr Kabic in cross-examination that his numerous attempts to obtain employment were not genuine.
None of Ms Zammit, Dr Hall, Ms Messer or Mr Girdler gave oral evidence. This Court is in as good a position as the primary judge to make the determination which the primary judge did not address, namely, whether Calcono discharged the burden of adducing evidence as to what jobs were open to a person with his capacity, and whether it should be found that there were jobs open to Mr Kabic, had he chosen to take them.
Ms Zammit's report of 16 May 2012 addressed the state of Mr Kabic's injuries, his employment and educational background. The report noted that Mr Kabic's scores on a Depression, Anxiety and Stress test indicated that he was in the "extremely severe" category for depression, anxiety and stress. He reported a vocational interest in securing work in the construction industry in a supervisory role and was receptive to working as a process worker or cashier as suggested by Rehabilitation Services. He reported a strong interest in participating in an English course to enable him to be a competitive candidate in the open labour market. The report identified the following vocational options. The first was as a formworker or labourer. Ms Zammit reported that: "Although Mr Kabic has limited English speaking skills, he is considered a competitive candidate for Construction Worker roles in light of his knowledge, skills and experience. He presents as highly motivated to secure employment in the Construction industry. Cold canvassing is likely to be an effective means of job seeking in this field. It is highly likely that Mr Kabic would gain access to further Construction Worker roles via cold canvassing in the Serbian community. Treating Physician Dr Todorovic has advised that this option is not medically appropriate in light of Mr Kabic's current functional tolerances. In the event that Mr Kabic's functional tolerances improve, however, this vocational option is likely to be considered medically appropriate."
This role never did become medically appropriate.
The second vocational option identified was as a product assembler. Ms Zammit commented: "Mr Kabic is considered functionally capable of performing light product assembly/process duties. Although the open labour market is currently limited, cold canvassing is considered to be an effective means of job seeking in this field. It is highly likely that Mr Kabic would gain access to further product assembly roles via cold canvassing in the Serbian community."
The third vocational option was as a domestic cleaner in private dwellings. Ms Zammit commented: "Mr Kabic is considered functionally capable of performing light cleaning duties. Although the open labour market is currently limited, cold canvassing is considered to be an effective means of job seeking in this field. It is highly likely that Mr Kabic would gain access to further cleaning roles via cold canvassing in the Serbian community. Mr Kabic's limited English skills are considered less of a barrier with regards to this particular vocational option."
The last vocational option identified was as a cashier. Ms Zammit commented that Mr Kabic would benefit from an English retraining course to ensure that he was a competitive candidate for cashier positions and commented that: "Mr Kabic is considered capable of performing a cashier role in the Serbian community. It is highly likely that Mr Kabic would gain access to Cashier roles via cold canvassing in his local community."
Ms Zammit recommended that Rehabilitation Services submit a Return to Work plan and commence case management.
I have already observed that Dr Hall and Ms Messer's Earning Capacity Assessment dated 12 July 2013 was made for the purposes of identifying "suitable employment" within the meaning of the Workers Compensation Act where the issue essentially is what suitable employment an injured worker is capable of performing, irrespective of whether jobs of that kind are in fact available.
Dr Hall and Ms Messer identified three suitable work options, namely as a factory process worker, a product assembler and a hand packer of light items up to ten kilograms, with work being performed at a bench and along a moving production line. They provided the following comments as to the employment outlook for such positions. As to a factory process worker, they said: "Fair. Brief reasons: Job opportunities for specializations in this occupation tend to be unstable due to labour-displacing new technology, import competition and restructuring in the manufacturing sector. The mid-term potential for new jobs is below average, but some vacancies occur because of turnover in existing positions."
In relation to employment as a product assembler, that is, an assembler, assembly line worker or assembly worker, they observed that Mr Kabic would be able to undertake the duties of light assembly, or assembly of small components to avoid lifting more than ten kilograms. They said that, working along a production line or at a bench, Mr Kabic would be able to avoid strenuous pulling or pushing and work could be completed from either a seated or standing position. He would be able to avoid bending, twisting and squatting or work at or above shoulder level. They described the employment outlook as fair and gave brief reasons as follows: "Job opportunities for this occupation are unstable and are more likely to fall than rise due to import competition and workplace and industry restructuring, especially in vehicle and parts assembling. The mid-term prospects for new jobs are below average, but a reasonable number of vacancies arise from turnover in existing positions."
As to work as a packer or hand packer, they described the employment outlook as fair and gave brief reasons as follows: "Job opportunities for this occupation are unstable, being vulnerable to technological change and reduced sales in the main employing industries. Excess capacity exists in most employers, such that overtime is the preferred option, not new hiring. The mid-term prospects for new jobs are below average, but turnover in existing positions is high and results in regular vacancies."
These prognoses were put to the test. Rehabilitation Services provided Mr Kabic with a job-seeking activity log which he completed, that set out positions he applied for from 26 February 2013 to 21 July 2016. These included positions as cleaner, packer, salesman, cashier, and car park attendant. There were hundreds of such applications.
Mr Girdler commented upon Ms Zammit's Initial/Vocational Assessment report of 16 May 2012 and Dr Hall and Ms Messer's Earnings Capacity Assessment report of 12 July 2013 as follows: "(I) An lnitial/Vocational Assessment report completed by Mr Kabic's rehabilitation service provider on 16/5/2012 recommends a number of occupations as suitable, including one Sales Worker occupation (Cashier). That report notes on page 12 'Mr Kabic is likely to benefit from an English retraining course to ensure he is a competitive candidate for Cashier positions.' He would also require instruction in information technology in order to complete the requirements of this occupation. (m) All occupations in the Labourer group are categorised as Skill Level 5. This group also includes, by definition, the most physically demanding occupations and none are suitable for Mr Kabic. (n) Both the lnitial/Vocational Assessment report mentioned above and the Earnings Capacity Assessment (ECA) report completed on 12/7/2013 include recommendations for work in occupations listed in Major Group 8 (Labourers). Specifically, Mr Kabic is considered by these assessments capable of sustaining work as a Product Assembler, Domestic Cleaner, Factory Process Worker and Packer. (o) It should be noted that the lnitial/Vocational Assessment report appends the word "light" to the occupations of Product Assembler and Domestic Cleaner. The ANZSCO makes no such distinction and, strictly speaking, there is no such occupation as Light Product Assembler or Light Domestic Cleaner. It should further be noted that the ECA report lists Factory Process Worker, Product Assembler and Packer as three separate occupations. Product Assembler and Packer are both Factory Process Worker occupations. The title Factory Process Worker covers the entire range of unskilled occupations conducted in factories. (p) Mr Kabic is unable to contribute significantly to the domestic cleaning of his own residence and to suggest that he is able to do so in other people's homes by restricting himself to 'light' cleaning is a non-sense and begs the question, 'who then does the heavy cleaning?' (q) Factory process work involves performing repetitive tasks for prolonged periods at fast pace. Employers expect Process Workers to maintain consistently high levels of productivity and they set targets accordingly. In order to work in any of these occupations Mr Kabic would need to take regular and frequent postural breaks which would inevitably reduce his productivity. He is incapable of sustaining process work unless excused from meeting productivity expectations and his opportunities in these occupations are consequently limited to supported employment, sheltered workshops and similar."
His conclusions regarding the labour market were as follows: "5.1 Based on the assumptions I have accepted and my expertise in the area of vocational assessment, I present the following conclusions regarding Mr Kabic's labour market. Regardless of his ability to sustain work, Mr Kabic's injuries will continue to prevent him from securing employment. Reasoning (a) Mr Kabic's local labour market experiences an unemployment rate of 11.3% which is approximately double the State average (Small Area Labour Markets - March Quarter 2015). (b) Regardless of its statistical description, the only true test of the labour market is achieved through seeking employment. Mr Kabic has received extensive job seeking assistance from an occupational rehabilitation service which has included assisting him to locate and apply for work and monitoring his attempts to do so independently. Despite this assistance, and the availability of very generous financial and other incentives payable to any employer, Mr Kabic did not succeed in securing either paid work, or a WorkTrial opportunity (volunteer work in return for experience). It is apparent that Mr Kabic has fully tested the labour market and that it has rejected him. (c) It is now over four years since Mr Kabic last worked. As the length of time he has been unemployed increases, the likelihood that he could secure employment reduces."
His ultimate conclusions were: "7.1 Based on the assumptions listed in section 2 and 3 of this report, I have applied my expertise in the field of vocational assessment to present the following conclusions: (a) Mr Kabic is unable to sustain work in any occupation for which he currently qualifies. (b) Mr Kabic is unlikely substantially to increase his vocational qualifications or skills through vocational retraining. (c) Regardless of his ability to sustain work, Mr Kabic's injuries will continue to prevent him from securing employment."
Calcono did not provide any answering report to Mr Girdler's report. Mr Girdler was not cross-examined.
Once the "charade" finding is set aside, Mr Girdler's reasoning is compelling. The primary judge ought to have concluded that notwithstanding his capacity to undertake light duties, Mr Kabic was unable to secure employment of the kind identified in the rehabilitation reports and that the likely consequence of his loss of capacity to do heavy physical work is that it is unlikely that he would ever obtain any form of suitable employment on the open labour market.
The assessment of damages for past economic loss should be varied accordingly by excising the deduction for residual earning capacity.

Future Economic Loss

The primary judge allowed $144,263.10 as damages for future economic loss. This was based upon what at the time of hearing would have been Mr Kabic's pre-injury earnings adjusted for inflation ($1,333 net per week less $600 net per week being the deduction for residual earning capacity). The primary judge allowed future economic loss only until the time Mr Kabic would turn 50. His Honour found in Kabic v Workers Compensation Nominal Insurer (No. 4) that his employment as a formworker would have come to an end in any event due to his physical incapacity to perform it by the time the plaintiff became 50 years of age, and because the fall had not prohibited him from engaging in other forms of employment, the fall occasioned him no future economic loss after the point at which he would become 50 years of age (at [12]-[14]). The sum of $144,236.10 for future economic loss adopted the calculation submitted by Calcono as follows: "$733.00 net per week x 231.5 (5% multiplier for 5 years) x 0.85 = $144,236.10"
The deduction of $600 net per week for residual earning capacity assumes that not only is Mr Kabic capable of earning $600 per week, but that he can obtain such employment. For the same reasons as above that assumption has not been made good. The deduction of $600 per week for residual earning capacity in the calculation of lost earnings to age 50 should be excised.
In his earlier judgment the primary judge had found that Mr Kabic would not have worked as a formworker beyond the age of 55 as an absolute maximum and accepted medical evidence that on the balance of probabilities, his ability to do that work would have ended at the age of 50 (Judgment [364]). Accordingly, the finding in [13] of Kabic v Workers Compensation Nominal Insurer (No. 4) that if the injury had not occurred Mr Kabic's employment as a formworker would have come to an end in any event by the time he became 50 years of age due to his physical incapacity to perform such work, must be understood as a finding made on the balance of probabilities.
This approach to assessing damages in relation to hypothetical and future events is inconsistent with Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 640 (per Brennan and Dawson JJ) and 642-643 (per Deane, Gaudron and McHugh JJ); [1990] HCA 20. Brennan and Dawson JJ cited with approval (at 640) the following passage from the judgment of Lord Diplock in Mallett v McMonagle [1970] AC 166: "The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."
Deane, Gaudron and McHugh JJ said (at 642-643): "When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than I per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle; Davies v. Taylor; McIntosh v. Williams. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place." (Footnotes omitted.) See also Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 at [103] and Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 at [112]-[114], [166]-[167], [170].
The High Court did not address whether, and if so how, the usual 15 per cent discount for vicissitudes should be factored into this assessment. For the reasons which follow, this question need not be addressed.
The submission made before the primary judge by counsel then appearing for Mr Kabic generally conformed with principle, although the application of the principle to the medical evidence was flawed. Counsel submitted: "Evidence of the conclave of orthopaedic surgeons expressed the opinion of the likelihood that the plaintiff because of degenerative signs in his body at the time of accident was unlikely to be able to work until normal retirement performing work as a formwork labourer or similarly heavy work. This does not mean that the plaintiff was likely to develop to all those parts of his body now currently affected as a result of his fall the extent of his ongoing pain and restrictions but rather some symptomology would evolve which would in all probability prevent him from continuing to carry out such heavy duty work day in and day out six days per week and force him out of the job. He would still retain an earning capacity to carry out light to moderate suitable duties. Although the orthopaedic specialists expressed the opinion that it was unlikely that the plaintiff would have been able to continue performing formwork past the age of 55 both Dr Bruce and Dr Guirgis agreed that such opinion necessarily involved a degree of speculation, Dr Bruce stating that radiological evidence of itself was not necessarily determinative of the matter giving examples that he has seen people with 'awful' x-rays with little pain and has seen persons with much greater degenerative condition than the plaintiff surprisingly being able to carry out heavy activities without any symptomology. Accepting the evidence of the orthopaedic surgeons in the conclave satisfy the evidentiary requirements set out in Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164 that the plaintiff's pre-existing degenerative spine was likely to have resulted in him being unable to carry out heavy work as a formwork labourer until normal retirement, the principles as to assessing damages as to future events as set out in Malec v J V Hutton Pty Ltd (1990) 169 CLR 638 at pp.642-643 must be applied. See also Insurance Australia v Helou (2009) 51 MVR 414 at 621-423; Seltsam Pty Ltd v [G]haleb [[2005]] NSWCA 208. Assessing damages for future or potential events must be assessed on the percentage likelihood of such future events occurring rather than on a balance of probability basis which would otherwise result in an all or nothing assessment. In our submission if the plaintiff could no longer continue to perform heavy work as a formworker due to some symptomology occurring he still would have retained a work capacity to carry out light to moderate work. It is plain that the plaintiff had and still has a strong work ethic and was likely to have pursued alternate work up until retirement. On the assumption that moderate to light work at today's rates would earn him $625 net per week (being average rates in rehabilitation services reports) in our submission calculation of injury to future earning capacity should be as follows. a. Future Loss of Earnings - from now until the plaintiff attains the age of 50 is 5.35 years on the basis of a 90% prospect of being able to have worked up until that time as a formwork labourer with a 10% chance of being restricted to earnings of moderate to light work. b. From the age of 50 to 55 being a 50% prospect. c. From 55 to 67 a 20% prospect. The above quantifies as follows: a. The 5% multiplier being 245.47 years x average net earnings of a formworker based on Mr Vujatovic's current earnings $1,924 per week x 90% = $425,056 plus 245.47 x $625 x 10% = $15,342 = $440,398 b. 5 years postponed 5.35 years is a 5% multiplier of 178.49 x $1,924 net per week x 50% = $171,707 plus 231.5 x $625 net per week x 50% = $72,344 = $244,051 c. 17 years postponed 10.35 years is a 5% multiplier of 364.15 x $1,924 net per week x 20% = $140,125 plus 364.15 x $625 net per week x 80% = $182,075 = 322,200 Total $1,006,649 less usual discount of 15% for adverse vicissitudes over favour = $855,652"
The submission did not acknowledge that the principles in Malec v J C Hutton Pty Ltd apply also to past hypothetical events. That is, that in the assessment of past economic loss, account should be taken of the possibility that if he had not been injured, Mr Kabic might have been unable to work as a formworker even up to trial, that was more than five years after his injury.
In his written submissions on appeal Mr Gross QC contended that when regard is had to the medical evidence, no conclusions could be validly drawn as to when Mr Kabic would probably have retired as a formworker if the accident had not occurred. He submitted that the medical evidence relied upon by the trial judge did not meet the test stated in Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 and Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34.
That was not the position taken at trial. As appears from the passage quoted above, counsel appearing for Mr Kabic accepted that the evidence of the orthopaedic surgeons in conclave satisfied those requirements.
Mr Kabic was 39 when he was injured.
On 6 September 2013 Mr Kabic had been assessed as having whole person impairment due to injury to his cervical spine, lumbar spine, left upper extremity (shoulder and elbow) and right upper extremity (shoulder and elbow) at 34 per cent. A certificate of that assessment was issued pursuant to s 325 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
Doctors Guirgis, Bruce and Silva agreed that X-Rays showed that as a result of the accident there was aggravation of pre-existing degenerative changes of an age-related nature in the cervical spine, lumbar spine and both shoulders. Doctor Guirgis maintained that there was also continuing aggravation in the forms of symptoms and signs in the cervical spine, lumbar spine, both shoulders and both elbows, whilst Dr Bruce maintained that whilst there was aggravation of the cervical spine and lumbar spine, the aggravation in the shoulders was exaggerated. Dr Silva considered that all aggravations except for the cervical spine aggravation had been resolved.
When giving concurrent evidence, the doctors were asked about the effect of the age-related degeneration evidenced on the X-Rays to Mr Kabic's likely ability to continue to work as a formworker if he had not been injured. Dr Bruce said that he believed with the changes apparent on X-Rays and MRI scans that it would be inevitable that Mr Kabic would develop neck pain and back pain due to his work duties sooner or later and possibly sooner. Dr Bruce said that he found it surprising that he wasn't already having some symptoms. When asked to put an estimate on when that sooner or later period might be, Dr Bruce said "I think he would have had significant symptoms in his neck or his back within about five to ten years of the injury ... if he hadn't had the injury".
Dr Bruce added: "I think his work expectations in that particular occupation - well, the expectations are that he would not have lasted until full retirement age. I think he, within five to ten years, he would have been getting significant symptoms and having difficulty carrying out the job and may, at that time, have been looking for alternative employment, and that's disregarding the shoulders, which have got showing degenerative pathology and would also could well have become troublesome at about the same time."
Dr Silva by and large agreed. He said: "age-related degenerative changes occur, and like anywhere, a tear of any machine or a tyre, hard work naturally brings bad backs, and naturally it aggravates - continuing aggravation of the degenerative changes will occur with hard work, and I also agree with Dr Bruce that it's highly unlikely that a form worker in the form workers we have seen they would go beyond age 50 in form work. Extremely rare to find that 55. Hardly ever. I can only recall one person who was close upon 60 who was still in stoic fashion, continuing form work. So by and large the average - by age 50 your back has had it, if you've been in the form work industry from the word go."
Dr Guirgis said: "I agree that these are very demanding jobs on the spine and that eventually people become unable to perform such duties, and usually the average age of retirement of these people or change of career for these people is about 50 or 55. But I'm not persuaded that we can predict a future I here. I am not persuaded that if Mr Kabic was not injured in this accident or was not the subject of this accident he would be complaining."
When asked to comment on that last answer, Dr Bruce said: "It's speculative. My assessment was on the X-rays and - and the natural history of condition - that, yeah, I think he would have been struggling to work much more than another five or ten years from the time of the accident, and that's on the assumption that the accident hadn't occurred. And I think the combination of issues, neck, back and he was already complaining rightly or wrongly of elbows and knee, and I think the combination would have stopped him from working in this heavy type of work within five to ten years of the time that I saw him. I just make a point too. When we use the term 'age-related degenerative changes'. That's not a sort of a universal progressive thing. Individuals vary enormously, so - you know, and I think his level of degeneration was significant for someone who was still in his 40s. CHEN: And that gives you a greater degree of confidence, I take it, in assessing the likelihood - WITNESS BRUCE: Yes. CHEN: --of when he was likely to find doing the form work, labouring work difficult; is that so? WITNESS BRUCE: Correct, yes."
In re-examination it was put to Dr Bruce that there was a degree of speculation as to whether Mr Kabic would have been able to continue in his work as a formwork labourer in the absence of a fall. Dr Bruce said: "Yes, I made the assessment not purely on the imaging results, there was also the element of his present complaints when I saw him plus the past history plus the examination findings, and plus the severity of his X-ray changes were quite significant. Taking all of that into consideration plus the natural history of his work duties, taking all that into consideration, my opinion is fairly strongly that yes, within five to ten years he would be having sufficient symptoms to most likely no longer to be able to work as a form worker. And like all medical predictions and prognoses, there's an element of speculation. I would hope that it's not the entirely negative aspects of speculation, I would like to call it sort of intelligent speculation or experienced speculation but, yes, there is no way that I can say absolutely for sure within five to ten years he wouldn't have been able to work, but I think it's very very likely that he wouldn't have been able to work."
Dr Silva said: "I agree with Dr Bruce that beyond the age 50 to 55 we are stretching it too much, about 50 he wouldn't without the intervention of this incident, he would unlikely be working as a form worker or a building site. That is not speculation, that is prognosis based on our experience. I have been in this country 40 years looking at people of this nature and I am talking through my experience that I came to that conclusion which I just enumerated. And by and large I do agree with Dr Bruce that he would be struggling at age 50 to continue formwork, builders labourer type of work."
And then when asked to comment, Dr Guirgis said: "Yes. I agree with Dr Bruce and I am of the opinion that the natural history according to my experience the natural history of any deviation from the normal differs greatly from one person to another and from one situation to another. So any prediction in that regard should be considered speculative."
Mr Gross QC submitted that Mr Kabic had done the arduous work of a formwork labourer for a total of only three years and nine months. He submitted that in accepting Dr Silva's evidence that people hardly ever go past the age of 50 as a formworker, because by that age their back has "had it", the primary judge failed to consider that Dr Silva was talking about people who had been in the formwork industry from the word go (see para [182] above). Mr Kabic had not been in the industry since he was 17 or 18, but had only been exposed to the heavy work of a formwork labourer for less than four years.
That was not a point taken during the giving of the evidence in conclave, nor in Mr Kabic's submissions at trial. It is clear that the doctors were expressing their opinion as to the likely prospects of Mr Kabic's continuing as a formwork labourer up to and after the age of 50 on the basis of their assessment of him as an individual, including the X-Rays showing age-related degeneration of the spine. The primary judge was entitled to act on the evidence summarised above.
Applying a Malec v J C Hutton Pty Ltd approach to the assessment of damages as proposed in the plaintiff's submissions before the primary judge would not result in a higher award of damages having regard to the medical evidence. The submissions proceeded on the basis that there should be no discount for the possibility that, but for the injury, Mr Kabic would have stopped working as a formwork labourer before the trial (which took place well within the five to ten-year horizon suggested by Dr Bruce). It allowed only for a ten per cent discount for the chance that between the time of trial and his attaining 50 years he would not have been able to continue work as a formwork labourer and it allowed for a 50 per cent prospect of his being able to work from age 50 to 55 and a 20 per cent prospect of his working as a formwork labourer up to age 67. That was not a realistic reflection of Mr Kabic's prospects, having regard to the medical evidence.
Neither party provided submissions on appeal as to how a Malec v J C Hutton Pty Ltd approach to the assessment of damages should be applied. Whilst some percentage chance should be allowed for the prospect that Mr Kabic would be able to work as a formwork labourer past the age of 50, the application of appropriate discounts for the possibility that he would not be able to work as a formwork labourer up to the age of 50 would more than offset any additional component of damages to reflect prospects of his working as a formwork labourer after the age of 50, particularly when applying the five per cent tables to calculate the present value of assumed future income.
Calcono cannot complain that the primary judge adopted a method of calculation of damages that was favourable to the plaintiff, when that was the method it proposed. I would not disturb the primary judge's assessment of damages insofar as it allowed damages for loss of earning capacity as a formwork labourer up to the age of 50 only.
The third area of challenge is the primary judge's awarding no damages for future economic loss after Mr Kabic turned 50. The primary judge found that he retained the capacity to carry out light duties in the kinds of jobs described in the Rehabilitation Services reports. It was only work of that kind that Mr Kabic identified as being the kind of work that he could have done, if he had not been injured, but had lost the capacity to work as a formwork labourer.
It is implicit in the primary judge's reasons that had he not been injured, Mr Kabic would have had the same prospects of obtaining employment in unskilled light duties when he became unable to work as a formworker as he now has, notwithstanding that he has been unemployed due to his injury.
Mr Girdler said that as the length of time of unemployment increases, the likelihood that Mr Kabic could secure employment reduces. The corollary is that if Mr Kabic had not been injured, the prospects of his obtaining alternative employment in light duties when he became unable to work as a formwork labourer, would be higher than it is after an extended period of unemployment.
In principle, the question that the primary judge ought to have been asked to address was what were the prospects of Mr Kabic's being able to obtain alternative light duty employment had he not been injured when he ceased to be able to work as a formwork labourer? Unless the prospects of obtaining such employment were negligible, damages should be allowed for the reduced opportunity to obtain such employment arising from the injury. The question would be whether, and if so to what extent, those prospects were reduced by his having been unemployed for a long time.
At trial, Calcono proceeded on the basis that was implicitly accepted by the primary judge that because Mr Kabic had capacity to carry out light duties, his injury and subsequent unemployment did not affect the position he would hypothetically have been in had he not been injured, but had become unable to work as a formworker due to degeneration of his spine with age and doing hard physical work.
Mr Girdler's unchallenged evidence is that having been injured and out of employment, Mr Kabic's prospects of securing employment in light duty areas would be less than his prospects of obtaining such work had he not been injured.
The claim for damages made by Mr Kabic at trial assumed that when he was unable to work as a formworker, he would be certain to be able to take up employment in lighter duties. Again, there was no basis for that assumption. Mr Kabic's difficulties in obtaining employment in light duties after his injury show that it cannot be assumed that had he not been injured, but had become unable to continue to work as a formworker, he would have been able to secure alternative employment in light duties. As a matter of principle, the primary judge ought to have been invited to assess the chance that had he not suffered injury, but was compelled to cease working as a formworker by or about the time he turned 50, he would have been able to obtain employment in light duties that he was physically capable of doing, and to assess by how much that prospect was reduced by the injury that has kept him out of the open labour market.
Neither party raised that issue before the primary judge. Nor did they do so on appeal. Before the primary judge, counsel for Mr Kabic contended that his future earnings but for the injury should be assessed on the basis that as soon as he was unable to work as a formworker or in similar heavy work, he would be able to obtain employment in lighter duties. It is not a ground of appeal that the primary judge ought to have awarded damages to reflect by how much the injury reduced the prospects of Mr Kabic's obtaining employment in lighter duties had he not been injured, but been compelled to cease heavy work.
In these circumstances it is not appropriate to remit the matter for rehearing on damages, nor to require the parties now belatedly to address that issue.
In summary therefore, I conclude that the plaintiff's challenge to the finding of contributory negligence should succeed and that the award of damages for past and future economic loss should be set aside by deleting the reduction of damages for residual earning capacity. The challenges to the award of damages should otherwise be dismissed.

Proposed orders

I propose the following orders: 1. Appeal allowed in part. 2. Cross-appeal dismissed. 3. Set aside the orders 1, 2 and 3 made on 11 July 2018. 4. Direct that within 21 days the parties provide short minutes of order for the judgments to be entered for the appellant against the respondent and for the second cross-respondent against the cross-appellant consistently with these reasons. 5. If the parties do not agree upon the orders to be made in accordance with these reasons, within 21 days each party is to file and serve the orders which it and he proposes together with written submissions of not more than five pages in support of the orders proposed. Submissions in reply to the submissions and proposed orders of other parties may be filed and served within seven days thereafter. 6. Order that the respondent and cross-appellant pay the costs of the appellant and cross-respondents of the appeal and cross-appeal.
McCALLUM JA: I agree with the orders proposed by White JA, for the reasons his Honour has stated.

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: 11 October 2019

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