Kabic v Workers Compensation Nominal Insurer - [2017] NSWSC 1281 - NSWSC 2016 case summary — Zoe

NSWNSWSC

Kabic v Workers Compensation Nominal Insurer

[2017] NSWSC 1281

Supreme Court of NSW|2016-08-08|Before: Button J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-08-08

Before

Button J

Source

Original judgment source is linked above.

Judgment (49 paragraphs)

[1]

Solicitors: Carters Law Firm (Plaintiff) HWL Ebsworth Laywers (First Defendant) Moray & Agnew Lawyers (Second and Third Defendants) File Number(s): 2014/129949

[2]

Introduction

On 26 May 2011, Mr Milan Kabic (the plaintiff) was working as an unskilled labourer on the redevelopment of the Redfern RSL (the building site). He fell from a raised platform, and suffered some injuries as a result. The circumstances of his fall are in dispute, as is the extent of the injuries that resulted from that fall.
At the time, he was employed by a labour hire company named Caringbah Formwork Pty Ltd (Caringbah). Caringbah was the first defendant in the proceedings before me.
The principal contractor at the building site was Deicorp Pty Ltd (Deicorp). Deicorp was the second defendant in the proceedings before me.
The sub-contractor of Deicorp to whom Caringbah had hired out the plaintiff as a labourer was Calcono Pty Ltd (Calcono). Calcono was the third defendant in the proceedings before me.
The plaintiff was represented by senior counsel, as was Caringbah.
One counsel appeared for both Deicorp and Calcono; he gave me his assurance that that was appropriate. In his final oral submissions, he made it clear that, if I found that both of his clients were liable, I was not being asked to determine any apportionment between them. He submitted, however, that if Caringbah and one or both of his clients were found liable, there would need to be apportionment between Caringbah and his clients, with the latter to be considered globally.

[5]

Background

The plaintiff is of Serbian ethnic background. He was born in Croatia (then part of former Yugoslavia) in April 1972. Accordingly, he was aged 39 years in May 2011.
He remained at high school until the age of 17. In the last four or five months of his schooling, he did a shoemaking certificate course. That was roughly equivalent to a course undertaken at NSW TAFE.
He did 12 months' military service from the age of 18 in the Yugoslavian Army. Thereafter between 1991 and 1995 he worked as a labourer on the family farm.
From 1996 the civil war in the Balkans disrupted his life, and he moved from Croatia to Serbia. He did casual work on farms, and did a three months stint assisting at a shoemaking shop. He has no formal qualifications as a shoemaker, beyond his certificate.
The plaintiff has been in a romantic relationship with his wife Zorica since 1996, and they married in 1999. Their daughter Marija was born in 1997, and their son Uros was born in 2002.
The plaintiff emigrated from former Yugoslavia to Australia as a refugee in April 2003.
In May 2003, he obtained a position as an unskilled construction worker, in the role of formwork labourer. Formwork is a structure made of wood that assists in the pouring of cement floors and walls.
The plaintiff worked as a formworker for a number of companies for an extended period after his arrival here as a refugee.
In October 2006, he returned to Serbia for family reasons. He remained there until September 2010. Whilst in Serbia, he worked for a period of two and a half years as a currency exchange officer.
He returned to Australia in January 2011, and obtained work as a formworker with Caringbah. That was through contacts in the Serbian community in Sydney. Although he believed that, at the time of the fall, he was employed by the third defendant, Calcono, he was in fact employed by the first defendant, Caringbah.
From the period of his commencement of work at the Redfern building site on 12 January 2011, until he fell on 26 May 2011, he was constantly doing the physically demanding work of a formworker.

[10]

The day of the fall

The claim of the plaintiff is that the area of the site where he fell was wet at the time, both generally and also on the particular platform from which he fell. To be more specific, his claim is that he slipped on a piece of plywood on the platform that was smooth when dry, and very slippery when wet.
Ancillary to the claim, he asserts that it was raining that day. To express that in more detail, his position is that the previous day it had been raining quite consistently. In the morning of the day in question it had been raining, but from about 7.00 am or 8.00 am onwards there was a light, intermittent drizzle. Just before lunch, or around that time, there was a heavy downpour.
His further related assertion is that he was working on the second floor, and the third floor above him (which formed the ceiling of his level) was itself open to the elements.
His position is that he and Mr Vujatovic were directed by their foreman, Mr Gino Calautti of Calcono, to go and work at that part of the site. Mr Calautti accompanied them to the point at which Mr Calautti wished the two formworkers to labour.
The position of the plaintiff is that it was manifestly quite wet there, and Mr Calautti must have seen that.
The position of the plaintiff is that he slipped from the raised platform on a piece of wet formply. His case is that the formply was lying on the raised platform. Formply is a kind of plywood into which concrete is poured. According to the case for the plaintiff, it is smooth, with the intention that the concrete will not stick to it. The case for the plaintiff is that, as a matter of common sense, and also expert evidence in the form of the report of Mr Burn, consulting engineer, a smooth surface becomes more slippery when it is wet.
Furthermore, the position of the plaintiff is that there was no part of the metal frames that enclosed a labourer when he or she was on the raised platform. In particular, although the plaintiff accepted that there were cross-braces on the lower part of the metal frames, his position is that there were no cross-braces on the upper level at which he was working. An important part of his claim is that that absence of cross-braces, or other "fencing" on the upper level of the metal frames, meant that there was nothing to stop his fall after he slipped.
Caringbah does not dispute the version of the fall given by the plaintiff. Deicorp and Calcono, however, firmly dispute it, chiefly based upon the evidence of Mr Reeves.
The position of Deicorp and Calcono is that it was not raining that day, and the place at which the plaintiff and Mr Vujatovic were directed to work by Mr Calautti was not wet. Indeed, their position is that the building had advanced by many more stories than the plaintiff claimed; that was relevant, of course, to the question whether the level upon which the plaintiff was working would have been likely to have been wet, as a result of the floor above it forming the temporary "roof" of the structure.
As well as that, the position of Deicorp and Calcono is that there were indeed cross-braces on the upper level of the metal frames.
In short, there is a stark dispute about the circumstances of the fall between the plaintiff on the one hand, and Deicorp and Calcono on the other.

[14]

On the day of the fall

The plaintiff was working on the second level. The roof above him - that is, the third level - had already been poured.
Gino (Mr Calautti of Calcono) was the one who gave the plaintiff instructions regarding what to do each day.
The duties of the plaintiff included stripping formwork. He was a formwork labourer. It was also part of his job to construct the metal framework. The framework is able to be adjusted by way of jacks. The diagonal braces can be taken on and off.
When it was removed from its position above the platform on the underside of the concrete that had been poured, the timber formwork would be placed on the platform.
The platform was three timbers on top of the metal framework. On top of the timber beams would be placed plywood, which is the same plywood that is used in the concrete pours. It is smooth to prevent it sticking to the concrete.
The plaintiff had experienced no previous problems working as a formwork labourer at that site.
On the day before his fall, it was raining. On the morning of the fall it was raining and windy. There were no walls on the second level, and it was open to the elements at its sides.
Lunch was at about 12.00 midday on the day of the fall. Just before lunch there was a sudden downpour. The plaintiff was asked by Gino to remove the materials from the platform, remove the platform itself from the metal framework, and after that clean up and stack up.
At the time of the fall, the plaintiff was removing materials and handing them down to Mr Vujatovic. The latter was standing on the concrete floor below the plaintiff.
There was no metal cross-bracing in place on the metal framework at the level at which the plaintiff was working.
The experience of the plaintiff was that, at other worksites, there would usually be cross-bracing or fencing at a raised level.
The plaintiff saw, at the location where he and Mr Vujatovic were working, that water was dripping down from the roof or ceiling.
The plaintiff gave evidence that Mr Calautti had a look at the general area before the plaintiff and Mr Vujatovic started working. He did not climb up onto the platform itself. The head of Mr Calautti was below the level of the platform. Mr Calautti then left the scene.
In the midst of undertaking his assigned task, the plaintiff slipped whilst handing down a long piece of timber to Mr Vujatovic.
As a result of his fall, the plaintiff hit his back, head, and shoulders. He was wearing a safety helmet at the time. He did not lose consciousness, but felt pain immediately. Other workers attended the scene, including Zoran, and a man named Nick (I infer that that was Mr Reeves). Zoran drove the plaintiff to RPA.

[16]

Cross-examination of the plaintiff on behalf of Caringbah

In cross-examination by senior counsel for Caringbah, the plaintiff said that the plywood upon which he was standing on the platform was the same plywood that was used as formwork in the process of the concrete being poured.
There was a "penetration" in the building that was being constructed that permitted the tower of a crane to sit in the middle of that building.
The plaintiff explained that the formwork is put in place to permit the concrete to be poured and shaped. The apparatus that is used to support the formwork is called falsework. The falsework is props and other pieces of timber that are put in place to support the formwork.
The plaintiff gave evidence that, on the day of his fall, the material that had been in place supporting the pour of the concrete had already been stripped, and he and Mr Vujatovic were simply removing it from the platform to the ground.
He gave evidence that the plywood is impregnated with a chemical in order to make it smoother, in order to minimise the degree to which the concrete sticks to it during and after the pour.
The plaintiff gave evidence that he had worked for at least three years as a formworker before his employment at the Redfern building site.
The plaintiff gave evidence that it was the usual practice when commencing to work on a building site to attend an induction, and he did attend one at this site. He also gave evidence that it was usual practice in the building industry for there to be "toolbox talks" about safe work practices; again, those meetings occurred at this site, and it was Mr Calautti, the foreman, who conducted them.
The plaintiff was firm that the plywood on the platform was wet. He also asserted that it was standard practice in the building industry to work only when those platforms were dry.
The position of the plaintiff was that he had previously worked on elevated platforms covered with plywood, but had never slipped from one before the fall.
On all other sites at which he had worked, it was standard practice to stop work if such a platform was wet.
The plaintiff gave evidence that, in the moments before the fall, he could feel his boots slipping on the wet plywood.

[17]

Cross-examination of the plaintiff by counsel for Deicorp and Calcono

The plaintiff had done a training course about Occupational Health & Safety. He understood the importance of telling people in authority if he thought the conditions were dangerous. He also understood that it was formwork industry policy not to work in the rain.
He signed the acknowledgement of understanding pertaining to all of that, even though he did not in truth understand English. He gave that acknowledgment to Mr Calautti of Calcono.
Separately, he went through an induction carried out by Deicorp before commencing work on the site. It was carried out by Mr Reeves, the gentleman who attended upon the plaintiff after the fall.
Although the plaintiff initialled a document to do with site safety rules, in fact he did not understand it, and he told Zoran that. He said nothing to anybody about that problem except Zoran. He understood that the process of ensuring that labourers understood safe work practices was important to Deicorp.
The plaintiff claimed that, before the day of the fall, he did work occasionally in the rain. He did not complain about that, for fear that he would lose his job, although he did mention it to Zoran.
His evidence was that, whilst it was raining, he was directed to work on the third level slab; that is, outdoors in the rain. He denied the proposition that that evidence was not true. He also denied the proposition that it did not rain at the site after 9.00 am on 26 May 2011.
Counsel suggested that at least one further concrete floor had been poured, with the result that it would have been impossible for rain water to be penetrating the third floor slab above the plaintiff. He denied that.
The plaintiff agreed that, when he arrived at the assertedly wet location with his foreman, the plaintiff said nothing to Mr Calautti. His explanation for that was that Mr Calautti could see the state of the location with his own eyes.
The plaintiff maintained the position that the platform was all wet, and indeed his clothing was wet. And yet he said nothing to Zoran about working in the rain, or to his foreman Mr Calautti either. The suggestion of counsel that his clothing was not wet was denied, as was the suggestion that the platform was completely dry.
Thereafter, there was a degree of cross-examination about previous statements that the plaintiff had made to various persons, as follows.
The plaintiff was asked about his statement to the workers compensation investigator, made 12 days after the fall in June 2011; his statements to medical workers at RPA; his discussions with his GP the day after the fall; his evidentiary statements; and other documents. To summarise the effect of the cross-examination succinctly, it was that the plaintiff had not been consistent in his various statements after the fall; in particular, with regard to whether or not it had been raining, and whether or not he slipped on a wet piece of plywood.
When Zoran and Mr Reeves attended upon him after the fall, the plaintiff denied that he said nothing about slipping on water or wetness. He denied that he had spoken of working on a platform made up of a single timber bearer, and that in fact he had been reaching up, not manhandling a large piece of wood.
Cross-examining counsel put to the plaintiff that in fact the metal frames had been largely dismantled at that stage, and in truth there was no plywood for him to slip on. It was also put that there were indeed cross-braces on the top level of the metal frame.
Counsel suggested that the distance that the plaintiff fell was something between 1.2 metres to 1.8 metres, a proposition that the plaintiff rejected. The proposition was also denied that there was no rain after 9.00 am at the building site on 26 May 2011.
Turning to aspects of dispute other than the fall, counsel suggested that there were many possible jobs that the plaintiff could fulfil, at the least part-time. His response was that he would need to try them first, in order to see whether he was capable of doing them.
The proposition was squarely put to the plaintiff that he could do any job that did not require fluency in English and that did not require medium to hard physical work.
As for the extensive home duties that the plaintiff claimed he was fulfilling before the fall, it was squarely put to him that he was grossly exaggerating about them; he denied that proposition.

[18]

The evidence of Mr Vujatovic

The co-worker of the plaintiff who was present at the time of the fall, Mr Vujatovic, was also called to give oral evidence by senior counsel for the plaintiff.
He gave general background evidence about the duties of a formworker, the use of metal frameworks, and the use of removable cross-bracing.
He gave evidence about rainfall, and the events of the day of the fall, as follows.
The day before the fall, it was raining. On the morning of the fall, he was on the top of the building using a jackhammer. It was cloudy, and rain started sometime after breakfast and before lunch. He was told by Mr Calautti to go downstairs.
After lunch, he was given further instructions by Mr Calautti. The foreman told Mr Vujatovic and the plaintiff to do the stripping, to remove timber and plywood from the platform, and stack it down on the floor. He showed the two of them where to work and left. The point at which they were directed to work was on the second level near the crane penetration. The two of them were supposed to remove timber and plywood, and clean it up from the platform.
According to the witness, the area was moist and wet. Water was dripping onto the timber and plywood. The floor was wet as well.
There were no diagonal cross-braces on the top level. The particular platform from which the plaintiff was working extended over 3 to 4 frames.
The platform on which the plaintiff was standing was about 210 centimetres or 2.1 metres above the floor. There was no fencing around the platform. At this particular building site, they did not use diagonal frames on the top level of a metal frame. In the experience of Mr Vujatovic as a formworker, at other building sites that practice was adopted.
Mr Vujatovic saw the plaintiff climb up onto the lower brace, and from there onto the platform. The plaintiff was handing down the lengths of timber so that Mr Vujatovic could stack them. The timber was heavy, and the plaintiff did that slowly. As the plaintiff was handing down a length of timber, he slipped.
Mr Vujatovic gave evidence that he continues to work as a formworker, spoke of increases in what he is paid for that task, and some of his payslips were tendered in support of that.

[19]

Cross-examination by counsel for the second and third defendants

In cross-examination by counsel for Deicorp and Calcono, Mr Vujatovic gave evidence of his movements at the site on the day. He rejected the proposition that it did not rain after 9.00 am on the day of the fall. He was cross-examined on his statement of 30 October 2013, in which he spoke of it having been raining fairly heavily on that day.
He asserted that one could infer on the day that it was raining, because water was dripping from a number of sources onto the second floor. One could also see that it was raining through the openings to the side of the building where there were no walls. He gave evidence that, whilst they were working together, the plaintiff said to Mr Vujatovic: "This is wet, we are going to do the job slowly".
The position of Mr Vujatovic was that, when the foreman told Mr Vujatovic and the plaintiff what to do, Mr Vujatovic could see that the area was wet. He said nothing about that to Mr Calautti, because it was obvious that Mr Calautti could see the state of the location. Mr Vujatovic felt that, if he had complained to his foreman, he would have been sacked.
He agreed that there were toolbox talks, and inductions, but said that labourers did not raise concerns about safety at such meetings.
Mr Vujatovic accepted that, bearing in mind that he was standing on the floor and the platform was above him, he was in no position to give evidence about the state of the wetness of that platform. But he could see that the timbers being handed down to him were wet. He denied a suggestion that there was no water on the floor upon which he was standing.
He described the plaintiff as falling as a person falls on skis; I understood that to mean with his feet slipping out from under him in a forward direction, with the plaintiff falling generally backwards and then to the floor.
Mr Vujatovic denied the suggestion that the plaintiff was standing on a single piece of timber.
He was taken to his evidentiary statement, and counsel suggested that it was to the effect that the two men were both working up on top of the platform.

[23]

Conclave of experts Dr Bruce, Dr Silva and Dr Guirgis.

Three medical experts prepared a joint report of 4 August 2016 about the plaintiff. They were Dr Guirgis, his treating orthopaedic specialist, Dr Bruce, orthopaedic specialist, and Dr Silva, orthopaedic specialist.
The contents of that report may be summarised very concisely as follows.
First, all three of the experts agreed that the x-rays displayed an aggravation of pre-existing degenerative changes of an age-related nature in the cervical spine (the neck), lumbar spine (the lower back), and both shoulders of the plaintiff.
Secondly, with respect to the plaintiff's left knee and his elbows, Dr Silva and Dr Bruce did not find any injury. Dr Guirgis thought that there was injury to the left knee.
Thirdly, Dr Guirgis and Dr Bruce found that the cervical spine and lumbar spine displayed continued aggravation caused by the plaintiff's pre-existing injuries. While Dr Guirgis also made this finding regarding the plaintiff's shoulders, Dr Bruce disagreed and noted an "element of non-compliance" by the plaintiff when observed off guard. Dr Silva found that only aggravation of the cervical spine remained unresolved.
Fourthly, Dr Guirgis and Dr Bruce concluded that the nature and extent of the disabilities caused by the plaintiff's injuries after the fall extended to degenerative changes to his cervical spine, lumbar spine and shoulders. However, Dr Bruce found a lower degree of injury to the shoulders; and Dr Silva only found continued aggravation to the plaintiff's cervical spine.
Fifthly, all three experts found that the treatment carried out by Dr Guirgis had been reasonable and necessary.
Sixthly, in terms of the plaintiff's prognosis, the three experts agreed that his current clinical picture was unlikely to change significantly in the future, and that no future orthopaedic surgery, injections or physiotherapy would be necessary. Rather, they were all of the view that the plaintiff could self-manage by doing exercises on his own and taking over-the-counter analgesics.
Seventhly, Dr Guirgis and Dr Bruce both maintained that the plaintiff was permanently unfit for the duties of a formworker or builder's labourer, and that he would continue to be restricted in his ability to undertake heavy lifting, climbing, and frequent bending. They recommended that the plaintiff would only be capable of duties such as light assembly work of a benchtop nature or collecting tools. In contrast, Dr Silva concluded that the plaintiff was fit to return gradually to his pre-accident employment duties.
Eighthly and finally, all three of the experts agreed that the plaintiff's injury did not impose any significant restrictions on him performing domestic duties, and that he required no future such assistance.
Oral evidence was also received in conclave from the three medical experts who had prepared the joint report. That oral evidence may be summarised as follows.

[24]

Examination by senior counsel for the plaintiff

All three medical experts agreed that the x-rays of the plaintiff show aggravation of pre-existing degenerative changes of an age-related nature in the cervical spine, lumbar spine, and both shoulders.
All three agreed that the fall would have caused soft tissue damage in and around the spine.
All three agreed that the fall was a considerable aggravation of the pre-existing position.
Dr Guirgis thought that all of the aggravations would be permanent. In contrast, Dr Silva thought that only the neck would be permanent, and that the other injuries had resolved.
Dr Guirgis expressed the view that the degenerative changes in the past were age-related and age-appropriate.
Dr Bruce expressed the opinion that the plaintiff did have pre-existing pathology, in his joints and the disks of his spine, which constituted fertile ground for problems. Having said that, the fall was significant, and it did initiate the symptoms and aggravate the pre-existing problem. The opinion of Dr Bruce was that the condition of the neck of the plaintiff is a continuing aggravation from the fall, and the condition of his back is probably in the same category.
Both Dr Bruce and Dr Silva saw the plaintiff on only one occasion. In contrast, of course, Dr Guirgis has been his orthopaedic surgeon for quite some time.
According to Dr Silva, the complaints of the plaintiff did not add up to the clinical picture, and outweighed it; in other words, there was a degree of exaggeration in the presentation of the plaintiff.
Dr Guirgis did not agree with that. His position was that he had examined the plaintiff on many occasions, and observed objective signs consistent with his complaints.
Dr Bruce found his own examination of the plaintiff very unsatisfactory. To put it bluntly, he felt there was an amount of malingering. He accepted that there was genuine pathology and genuine symptoms, but felt that things were being markedly exaggerated. He spoke in particular of malingering with regard to the shoulder of the plaintiff. Dr Bruce found the demonstration by the plaintiff of the limitations on his movements unconvincing.
Having said that, Dr Bruce was of the opinion that the plaintiff was unfit to return to work as a formwork labourer, and was of the opinion that that state of affairs was likely to be permanent.
Dr Guirgis has examined the plaintiff on many occasions as his treating orthopaedic surgeon. His position was that he observed "objective signs".
Dr Silva could find nothing to "hang his hat on" to form a diagnosis of continuing irritability in the lower back arising from the fall.
Dr Bruce accepted that, in the absence of a fall, one could not say whether, with regard to the shoulders of the plaintiff, pain would have developed in any event, and limited movement would have developed in any event.
Dr Guirgis thought that there was also an injury to the left knee, and referred the plaintiff to Professor Bruce as a result of that opinion. Dr Silva was not convinced that the plaintiff suffered an injury to his knee. Dr Bruce felt that the plaintiff did suffer an injury to his knee, but that it was fully resolved by the time Dr Bruce examined the plaintiff in late 2015. Again, Dr Bruce felt there was a degree of exaggeration that Dr Bruce characterised as malingering.
All three medical experts agreed that the plaintiff will not improve in the future. All agreed that he would not be able to undertake heavy lifting, crawling, and other activities of significant physical exertion. All agreed that the plaintiff is unfit to return as a labourer to building sites.
Dr Bruce suggested an occupation that featured light duties with intermittent sitting, standing, walking, and other breaks. All three medical experts were in agreement about that.
Dr Bruce spoke of a process of starting a new job, and gradually building it up. He suggested that a degree of motivation would be required on the part of the plaintiff. Dr Guirgis spoke of the path proposed as being a difficult one. Dr Silva spoke of light duties with breaks, but also, more optimistically, spoke of a gradual return to the pre-injury job of the plaintiff.
In terms of domestic chores, Dr Guirgis originally thought that there should be domestic assistance of six hours per week for heavier outside activities, but has now moved away from that by way of consensus with the other two experts.
Dr Bruce felt that the plaintiff was able to do standard domestic duties. He expressed the general opinion that it is actually therapeutic for a person in the position of the plaintiff to engage in domestic chores.
Dr Silva felt that the plaintiff did not need outside domestic assistance.
Dr Silva examined the plaintiff on behalf of the workers compensation insurer, so there was understandably less focus on domestic activities as opposed to work activities.
All three medical experts agreed that no further surgery, injections, or physiotherapy is necessary. Senior counsel raised the possibility of the need for that, including physiotherapy, and pain control in the form of aspirin.

[29]

Examination-in-chief by counsel for Deicorp and Calcono

Mr Reeves was an employee of Deicorp. As I have said, at the time of the fall he was the first aid officer and Occupational Health & Safety officer, and structure foreman for Deicorp on the job at the Redfern building site.
His position was that the provisions of the contract between between Calcono and Deicorp did not fully capture the situation in which the fall occurred, because there were no leading edges. There was scaffolding around the entire building.
Mr Reeves agreed that the plaintiff was on the second level when the fall took place. However, his position was that somewhere between 11 and 13 floors had been constructed, not three.
In stark contrast to the evidence of the plaintiff and Mr Vujatovic, his evidence was that the weather was fine. It was not raining on the morning in question. He was able to say that not only because he was out and about on the building site, but also because he recalled that the surveyors were using lasers, and that instrument would not have worked in wet weather.
He recalled getting a telephone call from Gino between 10.00 am and 11.00 am about the fall. He recalled that, at the vicinity of the fall, there was a crane penetration, which had meshed fencing panels around it. He did not accept that it could be the case that water was dripping onto the location, of the fall, because it would be channelled away by the structures that were in place.
He gave evidence of going straight down to the scene. He described there being a line of metal frames set up in grid sections, with a "catch safety deck" still in place. The formwork had been removed from underneath the soffit (that is, the underside of the poured concrete that formed the third level). There was an independent deck built below the formwork. The deck that Mr Reeves observed, and from which he inferred the plaintiff had fallen, was between 1.2 metres and 1.8 metres above the floor of the second level.
The evidence of Mr Reeves was that the diagonal braces were indeed in place on the first upper level of the frames. They were still there in order to keep the metal frames in proper alignment.
When Mr Reeves saw the plaintiff he was lying about 6-8 metres away from the crane penetration, and therefore probably 15 metres away from the edge of the building.
Mr Reeves understood that the plaintiff and Mr Vujatovic had been in the process of removing plywood, that being the top layer of the deck that he had described. He saw various materials piled up in the location where the plaintiff was lying.
When he arrived at the scene of the fall he saw the foreman, Mr Calautti. He also met the head formwork stripper, Zoran.
The place where the formwork stripping was in progress was an isolated work area. According to Mr Reeves, the ground - that is, the floor of the second level - was dry. There was no water pouring through the ceiling.
He administered first aid to the plaintiff, who told him that his right shoulder was sore. He offered an ambulance, which the plaintiff refused. Mr Reeves noted that the clothing of the plaintiff was dry.
The evidence of Mr Reeves was that, if there had been water or wetness, he would have explicitly noted those factors in the first aid form.
Mr Reeves was taken to the "Register of Injury" form that he had filled in on the very day of the fall. He agreed that he had noted "Fell off safety deck". The evidence of Mr Reeves was that, if he had observed water, he would have put that in that document.
Mr Reeves was then taken to his own statement of 5 August 2016, which included a diagram that he had drawn of the frames that he had seen. He saw a frame with a plank leaning diagonally down to the ground that was in the vicinity of where he first saw the plaintiff.

[30]

Cross-examination by senior counsel for Caringbah

Mr Reeves agreed that the Redfern project was a large one. He was asked about the "hierarchies" that existed on the site.
He confirmed that Deicorp was the head contractor; in other words, the builder. The builder employed sub-contractors. Deicorp "project managed" things until the end of the project. Specialist sub-contractors performed many different parts of the work to enable the building to be constructed. Deicorp had people on site overseeing the project as a whole.
The position of Mr Reeves was that he has always taken site safety seriously, and always will. Indeed, so did all of the employees of Deicorp on the site. Deicorp also had a responsibility to report unsafe work practices.
He gave evidence that, on site, the Deicorp staff wore a uniform, and it was obvious who they were.
He explained that the site safety rules in the contract between Deicorp and Calcono were not only formulated by Deicorp, but also derived from industry standard rules. In addition, Deicorp had its own Occupational Health & Safety (OHS) plan. That was good industry practice.
There were also safe work method statements. Mr Reeves reviewed the safe work method statements of Calcono, and believed that those statements with regard to the formworkers of Calcono were appropriate.
The position of Mr Reeves in a nutshell was that the rules and regulations, the safety plans, and other aspects of good work practice were followed by Deicorp.
Mr Reeves spoke of his understanding of the great risks that attached to working from heights.
Mr Reeves gave evidence that electrocution is the biggest danger if one works in the rain. As well as that, formwork timber could become slippery. Sawdust on a surface could also be slippery.
Mr Reeves gave evidence that he did not know of the stated policy within the Calcono OHS documents that no employees were to work in the rain, but such a policy would not surprise him.
Mr Reeves agreed that it would not be consistent with proper and safe industry practice for a person to be directed to work in the rain, especially at a height.

[31]

Cross-examination by senior counsel for the plaintiff

Mr Reeves agreed that his evidence of what he observed on arrival at the second level was based partly on his memory five years later, and partly on documents that he had created over the years. The latter included the injury report, and the site diary, the latter of which regrettably had been lost. Mr Reeves had the latter document available to him when he made his first statement on 5 September 2011, but not when he made his two subsequent statements in 2016. He had also prepared a diagram in 2014.
Mr Reeves had not inspected the formwork on the second level on the day of its removal. He had been there about a week or two prior to the day of the fall, but not since.
He described the deck that he saw when he attended on 26 May 2011. His position was that items must always be passed down to the floor, otherwise the formworkers are unable to move around on the decks. He rejected the proposition that, from time to time, items are left on the deck. He accepted, of course, that he did not supervise the stripping of the formwork.
Mr Reeves gave evidence that the area where the formwork stripping takes place is isolated by at least one sign, along with safety bunting tape and exclusion fences. His evidence was that they were in place around the location of the fall on the day.
Speaking of the whole site generally, there were about 100 people on site, of whom about 40 were formworkers.
The evidence of Mr Reeves was that he did not really know the plaintiff, but had seen him around the site, and knew that he worked with Zoran.
The evidence of Mr Reeves was that he was called by Mr Calautti, and attended the second level. When he arrived, the plaintiff was leaning against a stack of bearers. That location was quite some distance from the crane penetration.
He remained there for about an hour to an hour and a half, in order to look after the worker, and to protect the integrity of the site of the fall.
The memory of Mr Reeves was that he attended at about 10.00 or 11.00 in the morning. He asserted that he had a very good independent memory of what he saw, but not a good independent memory of the time at which he saw it.
Mr Reeves maintained the position that it did not rain on that morning, nor at lunchtime. If it had rained, he would have written that fact down, and it would also have been in the work diary. Regrettably, Mr Reeves confirmed, that diary has been lost.
He agreed that in his very first statement about the matter, dated 5 September 2011 (that is, many weeks after the fall) there was no mention of the state of the weather.
He accepted that he did not actually see the fall as it occurred, nor the circumstances that pertained in the minutes leading up to it, so that much of his evidence was assumption or reconstruction.
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.

[34]

The day of the fall

To restate the opposing positions of senior counsel for the plaintiff and counsel for Deicorp and Calcono with great succinctness, the former simply submitted that the plaintiff and Mr Vujatovic were to be believed about the circumstances of the fall, in particular that the general location of the fall was wet, and there were no cross-braces on the raised platform.
To the contrary, counsel for the second and third defendants submitted that it was Mr Reeves who was to be believed; again, he submitted that I would not accept that the location was anything other than dry, and furthermore I would accept the evidence of Mr Reeves that cross-braces on the first level above the ground were indeed in place within the metal frames.
I shall not recount their particular submissions on this topic in greater detail than that; they can be understood by my summary of the cross-examination of those witnesses, along with references that appear in my determination below.
The task of determining the significant disputes between the plaintiff and Deicorp and Calcono about the circumstances in which the plaintiff fell is not an easy one. The following factors have been borne in mind by me in that task.
First, neither Mr Reeves nor Mr Vujatovic was shown in cross-examination, by way of demeanour or anything else, to be a dishonest person.
Secondly, my adverse finding about the credibility of the plaintiff about the degree of his injuries and disabilities (which I shall discuss in more detail shortly) inevitably also calls into question his credibility with regard to the fall itself. That factor is not determinative, however, and needs to be seen in the context of all of the evidence, and indeed the absence of evidence, about the fall.
Thirdly, it is true that there is a paucity of references to rain, water, and wetness in the prior statements of the plaintiff upon which he was cross-examined. To some extent that can be explained by the fact that the focus of the plaintiff was upon his injuries, rather than the surrounding circumstances in which the fall occurred. Nevertheless, it does raise a further question about his credibility.
Thirdly, it is very important to my determination that no evidence was placed before me that Mr Vujatovic had any relationship with the plaintiff, other than that of a work colleague from some years ago. If there had been such evidence available, counsel for Deicorp and Calcono would surely have placed it before me.
In the absence of such evidence, I regard Mr Vujatovic as an important unbiased witness who generally corroborated the plaintiff about the state of affairs moments before the fall.
Fourthly, without delving into a deep analysis of them, I think that the rainfall records relied upon by counsel for Deicorp and Calcono are inconclusive, not only as to location, but also as to timing. I do not believe that they conclusively rule out the possibility of some rain at the Redfern building site on that day.
Fifthly, it is to be recalled that Mr Reeves was not present at the time of the fall, and did not see it occur. His evidence about what he thought had happened was merely inferential reconstruction.
Sixthly, it is also the case that Mr Reeves did not claim to have inspected the upper level of any frame, including the one from which he inferred the plaintiff had fallen.
Seventhly, it will be recalled that the diary upon which Mr Reeves made contemporaneous notes, and which formed part of the basis of his first statement of September 2011 (itself some months after the fall), regrettably could not be located by the time of the hearing before me.
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."
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.
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.
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.
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.
Based on the entirety of the foregoing considerations, I make the following findings of fact on the balance of probabilities.
First, the plaintiff was working on the second floor.
Secondly, the ceiling above him was exposed to the elements.
Thirdly, the metal framework did not have cross-braces on the upper level.
Fourthly, the upper level from which he was working was approximately two metres above the second floor below.
Fifthly, it had been raining on the day of the fall, although intermittently and not always heavily.
Sixthly, some of the wood on top of the platform was formply.
Seventhly, formply is smooth and therefore inherently slippery. When wet, it is even more slippery.
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.
Ninthly, the absence of cross-braces or other structures around the upper level of the platform meant that, after he slipped, nothing "broke the fall" of the plaintiff.
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.
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.

[35]

After the fall

To restate the positions of the parties, senior counsel for the plaintiff contended that the plaintiff is a witness of truth, corroborated by his family members, as to the extent of his injuries, and the extent of his disabilities. He is also to be believed, it was submitted, with regard to his wholly unsuccessful efforts to find work.
The position of all three defendants was that the plaintiff is significantly exaggerating the level of domestic chores that he undertook before the fall; exaggerating his injuries; exaggerating his disabilities; and that there are countless "replacement jobs" that he could undertake.
I resolve those disputes as follows.
First, I accept as a matter of common sense that, having fallen approximately two metres, the plaintiff suffered significant physical injuries.
Secondly, and on the other hand, it is noteworthy that, at RPA, no broken bones were observed. He was sent home from hospital after a few hours. He did not attend his GP until the following morning. He has never required inpatient treatment for these injuries. In the absence of undisputed and objective evidence of the nature of his injuries, I proceed with a degree of caution.
Thirdly, I accept on balance, derived from the evidence of the plaintiff and his family globally, that for a period of some months, the plaintiff was in sufficient pain to require the assistance of his wife with regard to self-care, and spent much of his time in bed.
Fourthly, and on the other hand, I do not accept that the plaintiff engaged in household duties before the fall for anything like the periods he claimed. Even allowing for the needs of his young son - who, I accept, was and is allergic to dust, dust mites, and the like - I think that the periods he claimed he expended on housework were excessive, unreasonable, and not to be accepted. I would not be prepared to find that he engaged in more than 50% of the activities of which he gave evidence; to express that another way, I would not proceed to compensate him on any basis beyond the proposition that he actually performed more than half of what he claimed had been done by him when he was well.
Fifthly, I accept in favour of the plaintiff that there is an inevitable degree of subjectivity about assessing the level of soft tissue injury suffered by any person. And there also is an inherent aspect of subjectivity in assessing pain, and assessing pain experienced by another person.
Sixthly, nevertheless, I accept the evidence of Dr Bruce that he 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. That proposition is supported by the opinion of Dr Silva. It is true that each of those experts examined the plaintiff only once. But my adverse findings about the credibility of the plaintiff with regard to other matters (some discussed above, and some below) informs my acceptance of their cautious approach.
Seventhly, in short, I do not accept that the plaintiff is as badly injured as he claims. To adopt the word used by Dr Bruce, I believe that there is a degree of malingering in his presentation.
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.
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.
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.
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.
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.
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.

[36]

Claim against Caringbah

Having summarised the legal and factual contentions of the parties, the evidence, and the areas of factual dispute, and having resolve those disputed areas, I turn now to a resolution of the various claims of the plaintiff against each of the three defendants. I shall first deal with the claim of the plaintiff against his employer, Caringbah.
There was no dispute between the parties that Caringbah, as the employer of the plaintiff, had a non-delegable duty of care with regard to him.
But the point was made by senior counsel for Caringbah that it was a labour hire company that had nothing to do with the actual working conditions on the building site.
He also submitted that there was nothing to suggest that Caringbah was aware of unsafe working practices at the Redfern building site, but nevertheless, with that awareness, sent labourers such as the plaintiff to work there.
Furthermore, he submitted, Caringbah was entitled to rely upon what it knew of the appropriate safety procedures at the site, promulgated by Deicorp and Calcono, and to assume that they were being implemented in practice.
In short his position was that Caringbah had a duty to ensure the safety of its employees, when Caringbah sent them to a site, to the extent reasonably practicable, and that Caringbah had complied with that duty.
Senior counsel for Caringbah submitted secondly that, even if I found that there had been a breach of that duty, I could not find that that breach had caused the injuries suffered by the plaintiff. That is because any failure in that regard on the part of Caringbah did not contribute in the slightest to the fall. The cause of the fall, he submitted, was the particular state of wetness and the lack of fencing at a particular part of the building site at a particular time on a particular date. That, he submitted, could hardly be sheeted home to the labour hire company that had arranged the employment of the plaintiff at that building site many weeks beforehand.
In exchange between Bench and Bar table during his final oral submissions, senior counsel for the plaintiff clarified in response that his claim against Caringbah "boils down" to the following.
First, there was a wrongful failure by Caringbah to enquire of its employee, the plaintiff, about how the working conditions were at the Redfern building site.
Secondly, in oral submissions in reply (without demur by senior counsel for Caringbah) he submitted that it was incumbent upon a representative of Caringbah to "go to the work site", so that Caringbah could be satisfied of its obligations, statutory and otherwise, as an employer.
Turning to my determination of this claim, I accept the submissions of senior counsel for Caringbah.
As a matter of practical reality, Caringbah was in no position to control the state of the building site, either generally or on the particular day and at the particular location where the fall occurred. Although Caringbah was the de jure employer of the plaintiff, Calcono was unquestionably his de facto employer, in terms of actually and directly controlling the conditions in which the plaintiff worked. To give but one example, it was a foreman employed by Calcono who directed the plaintiff and Mr Vujatovic to work at the particular location where the fall occurred; Caringbah had absolutely nothing to do with that decision.
As well as that, there was nothing to suggest that Caringbah was aware that it was sending workers to a building site that was unsafe, either generally or in a particular way.
Nor was there anything to suggest that Caringbah conducted its business in some other way that played some, albeit highly indirect, role in the fall suffered by the plaintiff.
In short, I accept the proposition that, although Caringbah undoubtedly had a duty as employer to its employee, it did not breach that duty.
I also accept the further submission of senior counsel for Caringbah that, even accepting (for the sake of argument only) that Caringbah was somehow remiss in not asking its workers about the state of the site, and in not travelling to the site and inspecting it, those putative omissions had nothing to do with the fall.
If Caringbah, for example, had enquired of the plaintiff once a week whether everything was going well and appeared safe at the building site, he would surely have answered in the affirmative, because his case is that he experienced no difficulties before the fall of 26 May 2011.
Similarly, if a representative of Caringbah had travelled to the building site, even regularly, there is nothing to suggest that the particular problem with wetness on a particular amount of formply on a particular deck on a particular date would have been discovered by Caringbah. That is especially the case bearing in mind that this building site was not the installation of a new bathroom in a suburban home; rather, it was a multi-storey redevelopment of a commercial building.
Because the complaint of the plaintiff about what occurred is highly specific to a particular time and place, I considered that enquiries and inspections undertaken by Caringbah would have achieved little or nothing.
In short, for a number of reasons, whilst I accept that Caringbah as employer owed a non-delegable duty of care to the plaintiff as its employee, I do not accept that the plaintiff has established on the balance of probabilities the elements of negligence at common law against Caringbah.
The claim of the plaintiff against Caringbah must be dismissed.
In the alternative, if it be the case that I am compelled by operation of statute to make some finding of liability against Caringbah in light of its non-delegable duty, and thereafter undertake an exercise in apportionment as between Caringbah and Deicorp and Calcono, I would apportion blame against Caringbah in the amount of 0%.

[37]

Claim against Deicorp

Turning now to the claim of the plaintiff against Deicorp, I accept that Deicorp had a duty to take reasonably practicable steps to ensure that workers on the building site, whether employed by sub-contractors or employed by Deicorp directly, were able to work in safety.
I also accept that one can inform one's assessment of duty and its breach by way of the various statutes to which I was invited that make provision for safe workplaces, and which impose a number of obligations on large builders such as Deicorp.
But it is to be recalled that the plaintiff was one of approximately 100 workers on the building site, and one of 40 formworkers employed by a sub-contractor.
It is also to be recalled that Deicorp had signed a contract with Calcono in which Calcono undertook to fulfil a number of important roles with regard to the safety of its workers.
It was an employee of Calcono that directed the plaintiff to work at the particular location where the fall occurred, not an employee of Deicorp. That person was the foreman in charge of the plaintiff, and one can readily infer that employees of Calcono generally took responsibility for the various tasks assigned to the plaintiff, not employees of Deicorp.
Most importantly, the evidence of Mr Reeves was not disputed that, because of the danger of the operation, particular locations where formwork was in the process of being removed from the concrete soffit above were fenced off, and otherwise isolated and restricted in a number of ways.
That fact plays an important role in my determination that Deicorp and its employees were in no position to exercise direct control over the particular spot where the fall took place.
Furthermore, it is to be recalled that the evidence of Mr Reeves was that he had not been to that location for a period of at least a week. There is nothing to suggest that an employee of Deicorp saw the wetness which forms the primary basis of the case for the plaintiff.
I accept, of course, that Deicorp could not simply "wash its hands" with regard to building site safety, merely because it was utilising the services of a large number of sub-contractors on a extensive and busy building site.
And I accept, as I have said, that Deicorp had a duty of care to persons employed on that building site, including of course the plaintiff. I also accept the submission of counsel for Deicorp and Calcono that that duty of Deicorp was in the nature of a supervisory role, not a direct responsibility for the details of the precise way in which the plaintiff was called upon to work by its subcontractor Calcono.
In light of the evidence of Mr Reeves of the safety measures adopted by Deicorp; the contract between Deicorp and Calcono; the general lack of control on the part of Deicorp over the activities of the plaintiff; the particular lack of control on the part of Deicorp over the activities of the plaintiff on the day in question; the fact that he was directed to work at that precise location by an employee of Calcono; and, most importantly, the fact that the particular location at which he was directed to work was isolated from the presence of other persons, due to its inherent danger, I am not satisfied on the balance of probabilities that Deicorp breached its duty to the plaintiff.
Accordingly, in my opinion, the claim of the plaintiff against Deicorp must be dismissed.

[38]

Claim against Calcono

Turning now to the claim of the plaintiff against Calcono, and to recap to a degree, I have found the following on the balance of probabilities.
Although the plaintiff was employed by Caringbah, his de facto employer was undoubtedly Calcono.
Calcono had contracted with Deicorp to undertake certain safety measures.
Calcono was also subject to a number of statutes with regard to the same issue.
It was the plaintiff's foreman, an employee of Calcono, who directed him to work at the particular location where the fall occurred.
The metal frames, which did not have cross-braces on their upper level, had been constructed by formworkers who were employees of Calcono.
Although Mr Calautti did not see the wetness of the pieces of timber and plywood on the deck, he did observe that the general area was wet.
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.
The slipperiness of the formply, caused by its wetness, caused the plaintiff to slip.
The absence of a cross-brace or other enclosing structure on the level of the deck meant that nothing interrupted the fall of the plaintiff after he slipped.
Turning now to analyse the elements of the tort of negligence, I characterise the duty that Calcono owed the plaintiff as being to take reasonable care to avoid exposing its (de facto) employees to unnecessary risk of injury.
As for the question of whether the plaintiff has established on the balance of probabilities that Calcono breached that duty, speaking generally, I accept that it was a breach of duty on the part of Calcono to direct the plaintiff to work from a platform raised approximately two metres from a concrete floor without the platform being enclosed, whether by cross-braces or any other structure. That is especially the case bearing in mind that I have found that the foreman who so directed the plaintiff saw that the general area was wet.
To my mind, Calcono breached its duty to the plaintiff by failing to take reasonable precautions against the possibility that he could fall from that elevated decking.
Without explicitly quoting all of the components of s 5B of the Act seriatim, I consider that the risk of a fall in those circumstances was foreseeable to the third defendant.
I say that because, imbued with knowledge of the wetness in that location, Calcono at the least ought to have known of the risk that the plaintiff, working from an elevated deck without enclosure, manhandling pieces of timber, could slip and fall.
The risk of that happening was not insignificant.
Furthermore, I consider that a reasonable person in the position of Calcono would have taken the precautions to which the plaintiff invites attention. By that I mean, 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.
As well as that, a reasonable person, having seen the general state of wetness of the area, would have made enquiries as to the state of wetness and slipperiness of the items on the deck. Those enquiries having been made, at the least, a reasonable person would have directed the plaintiff not to work from the deck until those wet and slippery items had either dried out, or been removed by some other, safer, methodology.
Further to that analysis, I think that there was quite a high probability that the harm of a labourer falling from a high, unenclosed, wet platform would occur.
The likely seriousness of the harm of a worker falling from a two metres high platform at a building site onto a concrete floor below was very substantial, in my assessment.
The burden of taking precautions to avoid the risk of harm would not have been great. It could have involved putting up cross-braces on the metal frames in that area. It could have involved checking the state of the deck, and directing the plaintiff and Mr Vujatovic not to work further until it was fully dry. It could even have involved, perhaps, drying off the wet items with a towel. None of that, I consider, would have been onerous to Calcono.
Finally, there is undoubtedly a social utility in building large structures. More generally, I think it can be said that a club such as an RSL serves some valuable social purposes as well. But in any event, the activity that created the risk of harm here was not the building of a large, multi-storey edifice. The activity that created the risk of harm was directing a labourer to work from a platform elevated two metres above a concrete floor, without enclosure, and without checking the state of that platform, even though the general area was seen to be wet.
Bearing in mind all of the components of s 5B of the Act, I am satisfied on the balance of probabilities that a breach of duty has been established.
To be clear, and contrary to the written submissions of counsel for Deicorp and Calcono, it is not a matter to my mind of "dividing things up" in an artificial way. It is the concatenation of factors that Calcono permitted to develop that leads me to the view that it breached its duty to the plaintiff.
I turn now to the question whether that breach caused the injuries occasioned to the plaintiff. To my mind, that element of the tort, and the facts underpinning that element, have been established on the balance of probabilities as well.
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 negligence of Calcono was a necessary condition of the occurrence of the fall and the consequent injuries, because it was those surrounding circumstances that led to the plaintiff slipping and falling unrestrainedly as he did.
As well as that, there is nothing inappropriate about the scope of the liability of Calcono extending to the harm caused by its negligence. The simplicity of the matter is that the injuries to the plaintiff were caused directly by the fall, which was in turn caused by the circumstances in which he was working.
For completeness, I should say that I do not accept the written submissions of counsel for Deicorp and Calcono that there is somehow a dearth of expert evidence with regard to the question of causation. I respectfully repeat that I do not consider that expert evidence is required for the proposition that an adult human being standing on an item that is smooth and wet can fall, and that, as a matter of common sense, one can say that the slipperiness of that item caused that fall.
To summarise: I am satisfied that Calcono owed a duty to the plaintiff as if he were its employee. It breached its duty in permitting the circumstances that arose, especially when one imputes the knowledge of the state of the location possessed by Mr Calautti to Calcono. And I am well satisfied on the balance of probabilities that the combination of factors to which I have referred caused the injuries that the plaintiff suffered.
Finally, although they were not the subject of emphasis in the final written submissions of counsel for Deicorp and Calcono, I have not neglected to turn my mind ss 5G and 5H of the Act. But this was not a case in which the third defendant claimed volenti non fit injuria with regard to the plaintiff. Nor was it a case founded upon an asserted failure to warn on the part of Calcono. Rather, the simple assertion of the plaintiff was that Calcono breached its duty to provide the plaintiff with a safe place and system of work, and that breach caused him significant injuries.
For all of those reasons, I consider that the plaintiff has established that the third defendant committed the tort of negligence against him, even despite the strictures to be found in the Act. Subject to consideration of contributory negligence (to which I now turn), the plaintiff is entitled to damages from Calcono as a result.

[42]

Past economic loss - all aspects

Turning now to past economic loss, it is certainly true that the plaintiff was incapable of doing any work during the four month or so period after the fall when he was basically an invalid. Allowance should be made for lost income for that period, simply reflecting the wages that the plaintiff was earning as a formworker at the building site at Redfern.
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.
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.
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.
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.
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.
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.
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.
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.
Again, I would be obliged if all of those findings could be reflected in the joint draft orders that the parties have undertaken to attempt to provide.

[45]

Domestic assistance

Turning now to the claim for domestic assistance, both past and future, a number of things may be said.
First, there was no dispute that, unless the plaintiff can "get over the hurdle" to be found in s 15(3) of the Act, such a claim cannot be allowed by me.
Secondly, as the written submissions of senior counsel for the plaintiff confirmed, the claim is brought pursuant to s 15 of the Act, not s 15B of the Act. In other words, the claim is for assistance required by the plaintiff, not a claim for a loss of the capacity of the plaintiff to provide gratuitous domestic services to his dependants.
Thirdly, as I have said more than once, whilst I accept that, before the fall, the plaintiff engaged in an unusual amount of housework in light of the allergies of his son, I discount what he had to say in that regard by 50%.
Fourthly, I accept that, after the fall, there was a period of some months during which the plaintiff was largely incapacitated, and cared for by his wife. But there was no evidence that that period extended for six months or more.
Fifthly, the combined effect of my finding with regard to his suitability for light duties and the unanimous opinion of the orthopaedic surgeons who gave evidence on oath before me is that the plaintiff requires little, if any at all, domestic assistance in the future.
It is true that, in a report that predated the hearing by over 18 months, a rehabilitation consultant expressed the opinion that the plaintiff needs 10 hours of domestic assistance on an ongoing basis, and one hour per week of assistance from a handyman or gardener, if living in a home with a garden or lawn. Senior counsel for the plaintiff placed considerable emphasis on that report in his final written submissions. But I respectfully regard that opinion as completely superseded by the evidence on oath, including from the plaintiff's own treating orthopaedic surgeon, that was firmly to the contrary.
Sixthly, having said that, I believe that the plaintiff is and will remain incapable of heavy duties such as moving furniture, taking out a very heavy bag of garbage, carrying a box full of books, or manipulating a lawnmower into a shed.
As for the future, I do not consider that the plaintiff reasonably requires more than one hour of domestic assistance per week, in order to cover that need with regard to heavy duties only.
Seventhly, as for the past, I accept on the balance of probabilities that, during that period of some months when he was incapacitated, the plaintiff required care for well over six hours per week. But as I have said, there was no direct or indirect evidence that that extended for more than at least six consecutive months.
Eighthly and finally, it follows that, neither with regard to the past nor the future, am I satisfied on the balance of probabilities that the two essential preconditions to be found in the subsection to which I have referred have been established.
Accordingly, the statute commands that there is to be no allowance for domestic assistance.