Ramsay Surveyors Pty Ltd v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others - [2023] NSWDC 53 - NSWDC 2023 case summary — Zoe

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Ramsay Surveyors Pty Ltd v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others

[2023] NSWDC 53

District Court of NSW|2023-02-20

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At a glance

Source facts

Court

District Court of NSW

Decision date

2023-02-20

Catchwords

(2009) 240 CLR 1. Pacific Steel Constructions Pty Ltd v Barahona
Jigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406. Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy
FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253. Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34
(1985) 59 ALJR 492. R v A2 [2019] HCA 35

Source

Original judgment source is linked above.

Catchwords

(2009) 240 CLR 1. Pacific Steel Constructions Pty Ltd v BarahonaJigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406. Patrick Stevedores Operations (No 2) Pty Ltd v HennessyFBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253. Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34(1985) 59 ALJR 492. R v A2 [2019] HCA 35(2019) 269 CLR 507. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. Strong v Woolworths [2012] HCA 5(2012) 246 CLR 182. SZTAL v Minister for Immigration and Border Protection and Anor [2017] HCA 34

Judgment (40 paragraphs)

[1]

Introduction Liability The evidence The plaintiff Vahid Motevaloizadeh ("Vahid") John Ibrahim Aaron Millard Inspector Michael Holder Documents produced - SafeWork NSW Safe Work Method Statement of Ramsay Surveyors - 6 October 2017 Major Works Subcontractor Agreement between Toplace and Summit Formwork ("the subcontract") Safe Work Method Statement of Summit Formwork Pty Ltd Safety Committee Safety Meeting Minutes - 10 January 2018 Safety Committee Safety Meeting Minutes - 24 January 2018 Statement of Vahid - 29 January 2018 Tax invoices of Ramsay Surveyors 23 January 2018 and 13 February 2018 Expert reports Findings of fact LIABILITY The liability of Toplace Breach of duty Causation The liability of Summit Breach of duty Causation The liability of the plaintiff's employer - Ramsay Surveyors Pty Ltd Breach of duty Causation Contributory negligence Apportionment as between joint tortfeasors Damages - Michael Khouri Damages - Hana Khouri The evidence Hana Khouri The medical evidence Non-economic loss Out of pocket expenses Past domestic assistance Future domestic assistance Does s 30(4) of the CLA have the effect of reducing Hana Khouri's damages? The 151Z recovery proceedings Orders In respect to proceedings 2019/392950 - Ramsay Surveyors Pty Ltd v Toplace Pty Ltd & Others In respect to proceedings 2020/97924 - Michael Khouri v Toplace Pty Ltd & Others In respect to proceedings 2021/22054 - Hana Khouri v Toplace Pty Ltd & Others In respect to proceedings 2019/392950, 2020/97924 and 2021/22054

[2]

Introduction

On 25 January 2018, the plaintiff was impaled on a steel concrete reinforcing bar, having fallen through a formwork penetration on a building site at 10 - 32 East Street Granville ("the site"). At the time of the plaintiff's fall, the first defendant ("Toplace") was the head builder and principal contractor engaged in the construction of a multi-story residential/commercial complex on the site. The second defendant ("Summit") was a formwork contractor erecting concrete formwork on the site.
The plaintiff makes a claim in negligence for damages to be assessed under the Civil Liability Act 2002 (NSW) ("the CLA") (2020/97924). The defendants deny they were negligent. At the conclusion of the evidence damages were agreed in the sum of $650,000 subject to findings as to liability, contributory negligence and any reduction arising from the employer's negligence pursuant to s 151Z(2)(c) of the Workers Compensation Act 1987 (NSW) ("the WCA"). During the hearing consent orders were made reflecting a verdict for the third defendant ("Steelfixers") with no order as to costs.
In separate proceedings (2021/22054) the plaintiff's mother Hana Khouri ("Mrs Khouri") makes a claim in negligence against Toplace and Summit to be determined pursuant to the CLA. The first and second defendants have denied liability. In the alternative, the defendants contend that Mrs Khouri's damages should be similarly reduced by reason of the employer's negligence given the terms of s. 30(4) of the CLA.
The plaintiff's employer, Ramsay Surveyors Pty Ltd ("Ramsay"), has made a claim for indemnity for the amount of compensation paid to and on behalf of the plaintiff pursuant to s 151Z(1)(d) of the WCA (2019/392950). The first and second defendants have denied liability.
On 6 February 2023 AAI Limited trading as GIO Insurance was substituted for Summit pursuant to s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW).
Toplace cross claims against Summit for contribution and/or indemnity pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) in each of the proceedings. An alternative claim for indemnity pursuant to a contract between the first and second defendants was abandoned.
At the commencement of the hearing an order was made by consent that the three proceedings be heard together and that evidence in one be evidence in the other.

[3]

The plaintiff

The plaintiff was born on 1 March 1999. He was aged 18 at the time the accident.
Following completion of school, the plaintiff commenced a degree in Construction Management but left after one semester. However, he did obtain a white card allowing him to work on construction sites. He had performed some labouring work from time to time as well as stacking work at Woolworths whilst at school. At the time of the accident the plaintiff was training at the local gym five times per week as well as playing soccer and Oz tag.
The plaintiff commenced working with Ramsay full-time as a trainee surveyor on 6 November 2017 with the intention of ultimately qualifying as a surveyor. He had never previously worked in the surveying industry. When starting with Ramsay he went through various safety protocols including some lectures on safety. Otherwise, his training was on site. He was required to go to various job sites and assist the primary surveyor. He was paid for approximately 30 hours per week and was on a contract earning $40,000 per year. He was required to wear safety equipment on site including steel capped boots and a hardhat. All the other surveying equipment would be with the primary surveyor.
On the day of the accident his primary role was to nail in surveying marks which would then be highlighted with bright paint. He could not recall whether he was wearing a tool belt at the time of the accident although he did not believe so. He arrived at the site with the primary surveyor ('Vahid') and proceeded to what was known as level 4 or floor 2 ("floor 2"). He recalled the surveyor speaking with the site manager and he was only there for part of the conversation. He described floor 2 as primarily consisting of plywood formwork boards. A quarter to a half of the floor was still being laid out. The plaintiff described there being formwork boards and workers everywhere. He also observed workers cutting penetrations in the formwork.
The plaintiff gave evidence that he had been working on the site for approximately two hours prior to the accident and recalled seeing somewhere between two and four exposed penetrations on that level. He believed he was always cautious around those penetrations in circumstances where none of them were covered. He did not see any persons at any time whilst on the site attempting to cover those penetrations.
At about 11 am the form workers went on their break. The plaintiff was asked to retrieve a spray can to mark the last mark of the day. This required him to walk approximately 4 metres. When walking to retrieve the spray can he noticed that floor 2 was not totally floored; indeed, throughout the day he had noticed penetrations "everywhere" on that level. When retrieving the spray can he walked around penetrations, including the one he ultimately fell through.
As he was returning, having retrieved the spray can, he felt his feet wobble; the best description he could provide was like someone had hit him in the back of the knee. Consequently, he lost his balance and fell to the left side. He felt himself falling and recalled trying to grab onto anything he could, including a piece of loose plywood. He stopped, believing he had fallen flat on the floor below, however realised when he attempted to stand up that he was impaled by a steel rod.
Emergency services arrived some hours later and the steel rod was cut whilst remaining in his leg. He described, whilst waiting for emergency services, that he was in disbelief and shock, and it was a "stressful situation". The plaintiff indicated that there was no first-aid supervisor, and he was experiencing pain throughout the right leg the entire time. He was subsequently taken to Westmead Hospital where he believed procedures were undertaken, including removing the steel rod from his leg. He remained in hospital for two nights before being discharged. He recalls when arriving at the hospital that he saw his mother, although he did not have an opportunity to talk to her.
He was discharged home on crutches and was also provided with a moon boot to assist with foot drop. A nurse continued to attend the home for approximately 3 to 4 months after the accident to change the dressings. He needed assistance getting around and with personal care.
The plaintiff recalled returning to work in about June or July 2018, initially performing desk and computer work. This work enabled him to get up and move around when needed. Approximately three months after returning to work he attended a construction site, although initially when directed he was unaware it would be a construction site. He attempted to enter the site to "face my fear". When he stepped onto the flooring he experienced feelings of post-traumatic stress disorder, shock, panic, and his legs were shaking. He immediately went home and never returned to surveying work.
The plaintiff became emotional at times when giving evidence of the impact the accident has had on him and his family.
In cross examination by counsel for Toplace, the plaintiff was unable to recall signing a safe work method statement ("SWMS") prepared by his employer which was shown to him. His attention was drawn to an entry in that statement relating to the dangers of falling through penetrations. He could not recall that specific point being discussed by his employer, although general safety was the subject of some discussion. He was unable to recall how often these safety discussions took place. He could not recall if he was ever told or given instructions when walking near open or uncovered penetrations.
The plaintiff acknowledged that in the two and a half months he had been working as a trainee surveyor he attended numerous building sites including those where formwork was being constructed. At all times he would act under the direction or supervision of a senior surveyor and his tasks primarily involved inserting marks identified by the senior surveyor. He acknowledged that there were often form workers and other tradespeople working on site when performing the surveying work and at times he would walk on formwork deck. On occasions form workers were continuing to build the deck whilst on other occasions they had already been completed. He acknowledged previously seeing penetrations on formwork decks at other sites.
The plaintiff agreed that he had been to this site several times prior to the accident. He denied receiving any specific site induction when first attending. However generally the senior surveyor would speak to the site manager and at times he was a party to the conversation. He could not recall attending the site the day before the accident. He denied needing to see through the penetrations to place the survey marks. He agreed that having spoken to the site manager, he walked with his supervisor Vahid to the level where the accident occurred. He observed approximately ten form workers working on the site and he observed a number of those form workers to be cutting penetrations.
The plaintiff gave evidence that Vahid had decided to place timber framing around their equipment to prevent fellow trades working near it. The plaintiff agreed that he had seen the penetration before falling, and whilst there had been general discussions about being careful around penetrations, there was no discussion specifically relating to the hole through which he ultimately fell.
The form workers went for their break after approximately 30 minutes however they decided to continue working as they only needed to complete a few more marks and it was easier with no worker distraction.
The plaintiff stated that the timber beams framing their work tools were approximately 5 centimetres thick, 10 - 15 centimetres wide and approximately 1 to 1.5 m in length. Vahid had not suggested that they use these timbers or plywood to cover off any of the penetrations. It did not occur to the plaintiff.
In cross examination by counsel for Summit, the plaintiff was asked further questions in respect to the events leading to the accident. He admitted being aware of the penetration, having walked past it to retrieve a spray can. He acknowledged that Vahid provided him with a general warning to be careful and he did not take the most convenient or direct path to collect the spray can as that would involve him walking directly over the penetration. The plaintiff agreed, by reference to markings on Ex F, that there were several additional boards at one end of the penetration prior to falling. The plaintiff conceded that in the hours before the accident he did feel some movement when walking on the formwork boards although not sufficient to result in any loss of balance. He accepted that formwork boards did tend to vibrate underfoot, and he had experienced that sensation in the one to two hours prior to the accident, as well as experiencing that sensation on other worksites.
He recalled Vahid was almost right next to him when he was directed to obtain the spray can. He could not recall where the spray can was and went looking for it. The plaintiff denied being in a hurry or that Vahid was impatient. He acknowledged that he knew the hole was big enough that he could possibly fall through it. On the return journey, having retrieved the spray can, he felt the formwork boards wobble and he lost his balance. He could not recall whether he was wearing a tool belt at the time.
In re-examination the witness identified in Exhibits C and D the spray can which he was holding at the time he fell. He also identified a piece of board which he believed he grabbed as he fell. Further photographs of the plaintiff whilst still impaled revealed that he was not wearing his tool belt at that time although he could not recall whether anyone took off his belt after the accident. He indicated that the other beams of wood located around the site presumably belonged to others in and around the site.

[4]

Vahid Motevaloizadeh ("Vahid")

Vahid had been a surveyor for approximately 10 years and had been employed by Ramsay for approximately 10 months at the time of the accident. He travelled to the accident site with the plaintiff at around about 9 or 10 am. He spoke to the supervisor "Johnny", who worked for Toplace, before proceeding to the level where the accident occurred. Their task on that day was to survey the set out for the bathroom walls. There were approximately 20 other workers on that level who were mostly form workers. The floor on the level was made of plywood.
He observed various penetrations on the floor that workers were working on. There was definitely more than one penetration, although he could not recall exactly how many. At around 11am the workers left the level where they were working for a break. They continued to perform the surveying work thereafter; he could see various penetrations without covers. Initially Vahid indicated that he had his head down when he directed the plaintiff to walk to his location and mark it with paint. He then heard the plaintiff yell out and looked over his right shoulder to see the plaintiff losing balance before falling into the penetration. However, he conceded in cross examination that the following description contained in a statement dated 25 July 2018 would have been accurate: "I was near the lift and Michael was painting near a hole for a column. I said Michael come here, he was about 3 or 4 metres from me when I faced him and called to him. I saw his face, he seemed to lose his balance and turned, he fell sideways, shoulder first and went through the hole."
Vahid was not "brave enough" to look down the hole from the top as a knew that the plaintiff had fallen into an area where there were steel bars. Eventually several other persons on the worksite reacted to his screams for help and came to the plaintiff's aid.
In cross-examination by counsel for Toplace, Vahid was taken to the SWMS of his employer. He confirmed his signature on the last page of the document. He agreed that the hazard identified in the document of falling through a penetration was assessed at the highest level of risk. He agreed that the "controls implemented" did not provide for a penetration where there was no cover. However, he indicated that "as a human" if one sees a penetration then they should not approach it.
He could not recall the distance between himself and the plaintiff when he fell, although he thought it was about 10 metres. Vahid conceded that it may have been closer given the contents of his statement.
Vahid acknowledged that he had been on the site several times prior to the date of the accident and conceded that he may have in fact been on the site the day before, by reference to invoices issued by his employer. Whilst he acknowledged that a form of site induction was completed, it did not include the more detailed induction involving "movies and clips".
Having observed several penetrations without covers, Vahid believed he would have told the plaintiff to look after himself and, in particular, look out for the various penetrations. Surveyors were generally instructed not to walk near such penetrations; they did not, as a matter of practice, mark near them and should not walk around them. This was the general instruction from his employer. Indeed, he indicated that if a mark was required near a penetration, instruction was specifically given to use an offset point of up to 2 to 3 m. Vahid then gave the following evidence: "Q. When did the company say that? A. I don't know when. It's just a main thing. It's normal. I don't want to kill myself, so when there is an edge, I don't want to go to the edge to mark something there. I have an accurate measurement that I can give with a 2 metre, 3 metre offset, so if it's there, I put my mark there, and I will avoid it 3 metre that way. There is no reason that I need even to go there. Q. Are you saying that there is a main instruction, or there isn't one? A. I don't know. There is a main instruction that you do not ‑ I don't know, it just something, just verbally, friendly, or something. For example, Nicholas - he was my mentor, he always telling me these things. Q. Your mentor told you this instruction. Is that right? A. Yeah, as a friend, I think. Q. Did you tell Mr Khouri the same instruction? A. I don't know. Q. I don't think you did, did you Mr Motevalizadh? A. Sorry? Q. You didn't, did you? A. Did what? Q. You didn't pass that same instruction onto Mr Khouri, did you? A. But he's not the surveyor. I'm the surveyor. He's following me, so when I do not go to the edge, I'm the guy who has the tablet, so it's me who made the decision where to go, so I know that I should not go next to the edge, so I go and put my mark there, and then Michael come and put the paint here, not there, because I'm here. I told him to put it there … Q. Mr Khouri, where is he? Is he behind you initially, or is he somewhere else? A. As I said before, just imagine it's like that. I do some mark here. Don, Michael, they paint, then I choose the next point on my tablet, then I followed the direction, the direction take me next to the lift, which I think was around 10 metre or something. I did it and then with my head down, "Michael, come here". That's it. That's the normal that I do, and I just heard his voice, then I turned. Because he was on my right, he was not behind me. Q. So, in your mind, you thought he was walking behind you when in fact he was 10 metres away; is that right? A. I did not thought anything. I did that mark. I told him to paint. I chose my next point and I've done my job. I then through the next. I didn't put any attention that he's right following me because definitely can not falling with just after that because I need to nail, I need to paint and at that time I already moved a couple of metres. Q. You move a couple of metres. In your mind he is, what, back there putting the nail in about 2 metres from you? A. I don't know about 2 metres. I'm saying, I've done the first one, okay, and I've told him that's the mark and when I push the pull to make sure that he knows where is that. As soon he put his hand and nail there, I move. I move to the next point and then after that I'm not looking at him. You know? … Q. Would this be the position, then, that you knew that there was a main instruction that had been told by your mentor not to approach open penetrations. You agree with that? A. Yeah. There is a penetration, that's it. So, we shouldn't. Q. You said to Mr Andrews earlier that after the accident you were not that brave to go and look in the hole because you knew what was there. There were steel rods underneath the hole. A. Yeah, because when there is a penetration that penetration is for the columns to comes up. So, underneath there is steels down there. Q. You didn't know what experience Mr Khouri had on building sites? A. No. This I cannot remember now. Maybe I knew at that time. Q. You didn't pass on the main instruction that your mentor had given to you to Mr Khouri. Namely, don't approach penetrations, did you? A. I don't know what you mean that I did not pass. I'm saying, it's normal when we go it's my normal when I go somewhere. For example, there is machinery, there is penetration, I said, "going to look at the machines, look at the penetrations". I don't understand what exactly do you mean by that. Q. You did not say words to Mr Khouri to the effect, don't approach open penetrations. A. Can't remember the exactly things. Q. You didn't know where Mr Khouri was after you left the second last survey mark for the day, did you? A. Sorry? Q. You didn't know where Mr Khouri was, physically, as you walked away from the second last survey mark. A. No, because my head is down on my tablet. Q. You didn't check to see where he was, did you? A. Just concentrating on my tablet."
In cross-examination by counsel for Summit, Vahid conceded that he did not specifically warn the plaintiff to look out for the penetration through which he ultimately fell, claiming that he had simply provided the instruction to the plaintiff at the commencement of the job to watch out for the various penetrations. He was unable to recall how far the plaintiff had walked since the last mark and before he fell, although he accepted it would have been within the 3 to 4 metres.
In further examination in chief Vahid identified his survey poll depicted in Ex B, which was a short distance from the penetration cover. He was unable to recall whether he dropped the pole in that location at the time of the plaintiff's fall.

[5]

John Ibrahim

Mr Ibrahim had worked in the building and construction industry for approximately eight and a half years, having worked for seven of those years with Toplace. His position was now as a site supervisor and at the time of the accident was the leading hand at the Granville site. His primary role was in the coordination of the concrete work. He was present on the day of the accident.
It was the usual practice at the site to undertake "walk-throughs". He was shown two safety committee minutes in relation to the "Weekly Site Safety Walk Meeting" from 10 January 2018 and 24 January 2018. In respect to the earlier document in time, Mr Ibrahim was taken to particular observations made on 21 December 2018 relating to "unprotected formwork penetration" which was "closed out" on 10 January 2018. Mr Ibrahim explained that the defect is "closed out" by the relevant worker or entity rectifying the defect, having been notified of it. A representative of Toplace thereafter confirmed that the defect had been rectified.
In respect to the document dated 24 January 2018, he indicated that the time nominated of 10:30 pm was a typographical error and that it should be 10:30 am. The witness was shown a series of photographs depicting toolbox meetings, in which he identified several employees including the safety officers.
In cross-examination by counsel for Summit, Mr Ibrahim confirmed that according to the meeting minutes, formwork deck penetration which needed to be covered was detected on 24 January 2018 and was "closed out" the same day.
In cross-examination by counsel for the plaintiff, Mr Ibrahim maintained that the 10:30 pm entry was a typographical error, although he was unable to recall the time of the walk through on that day. However, he believed it was in the morning.
Mr Ibrahim was taken to the minutes dated 10 January 2018 which revealed that numerous defects were not "closed out" for days, and more routinely weeks, until after the due date for completion. These included defects with the highest or second-highest risk rating. He accepted that there were many defects which had not been completed within the time required by Toplace. He further conceded that there were defects which should have been completed within time but were not. He accepted that a number of the defects which were not completed in time should have been followed up but were not.
He was unable to identify the handwritten entries contained on the minutes dated 24 January 2018. Mr Ibrahim agreed, by reference to several photographs taken on 24 January 2018, that there were a number of penetrations that were uncovered. He accepted, by reference to the SWMS prepared by Summit, that penetrations were required to be progressively covered, and that those covered were required to be highlighted. He accepted, by reference to a number of photographs, that there were penetration covers which had not been highlighted as required by the SWMS.
He accepted that on the day of the accident there were penetrations on the level on which the plaintiff was working which were uncovered. He further conceded that if the SWMS had been followed there would have been fall protections in place.
Mr Ibrahim admitted, by reference to a series of photographs, that further work had been performed on the site after the accident, in its vicinity, contrary to SafeWork NSW requirements. This work included covering a portion of the penetration with a large piece of formwork plywood.
Mr Ibrahim further conceded that if had he walked through the site on the day of the accident, he would have stopped work until all the penetrations were properly covered. Mr Ibrahim agreed that the open penetrations, including the one through which the plaintiff fell, without barriers, was contrary to the SWMS provided by Summit. Mr Ibrahim gave the following evidence: "Q. If you had walked through on 24 January at 10.30 am, and seen penetrations‑‑ A. Yep. Q. ‑‑you've would've stopped all the work on the premises, wouldn't you, until they were covered? A. Yes."
It was suggested to Mr Ibrahim that if the workers went to lunch at around 11 am, Toplace could have thereafter inspected the site to ensure its safety. Whilst he accepted this would be the "perfect" thing to do, Mr Ibrahim stated that this was difficult on such a large site. However, he acknowledged that it was also within the control of Toplace to control those who attended the site or remained on the site.
Mr Ibrahim gave the following further evidence in response to questions from the Court: "Q. Mr Ibrahim, you're aware of where Mr Khouri fell? You know where it happened? A. Yeah, I saw him actually after he fell. Q. There was a penetration above where he fell. Correct? A. That's correct. Q. In the area below that penetration, there were the steel rods, weren't there? A. There was steel, yeah. Q. Do you accept that penetration just left opened like that with steel rods below was just patently dangerous? A. When the accident happened, to be honest, I was not there. Q. I understand that, but I'm just asking you, do you accept that's the case? It was dangerous? A. Of course. If it was not covered before he fell. If it was not covered, and there's steel of course it's Q. It should've been covered, shouldn't it? A. Yes."

[6]

Aaron Millard

Mr Millard had been in the surveying industry for approximately 23 years. He had worked with Ramsay since 2013 and had been a director since 2015. He was aware that the plaintiff had attended the site on the day of the accident in the presence of a senior surveyor. Mr Millard indicated that there was a practice or procedure whereby when employees started, they were taken through a SWMS. The employee was also given an opportunity to read it, ask questions and thereafter acknowledge its contents by way of a signature.
Ramsay conducted quarterly safety meetings at which time the SWMS was further discussed. Employees would thereafter adopt the document by way of signature.
Counsel for Toplace cross-examined Mr Millard on the SWMS relating to the hazard of falls through penetrations or from unprotected edges. He accepted that the reference to staying 3 metres from an excavation edge should relate to any edges, including those surrounding open penetrations. Indeed, he suggested that the reference to an "excavation edge" was a typographical error. Mr Millard considered that the appropriate advice to all employees was to stay 3 metres away from any open penetration. This was a hazard which his employees would face on a daily basis. Whilst accepting this advice was significant, it was not highlighted in the document, or the giving of such advice was not otherwise recorded in writing. Mr Millard said the following: "Q. And when you get to "fall through protection" what do you do? Do you just read out the words that are there in the document? A. Well, we elaborate a little and say that there's hole all over a formwork deck whether it be holes for columns or lift cores, stair cores and always be aware, and stay away from them. Q. Did you tell him what he's supposed to do if survey marking takes him near one of those holes? A. In practice we do. I know that we do tell our employees during these, that you need to stay 3 metres away from the penetrations. Q. You verbally say, do you, that you stay 3 metres away from the penetrations? A. Yes, and it says it in this as well. Q. Well, it doesn't, with respect, it says stay 3 metres away from excavation edge? A. I believe that's actually a typo. Q. You've got no recollection of ever saying to Mr Khouri, "Stay 3 metres away from penetrations", do you? A. No, because it was so long ago. Q. Your document doesn't stay 3 metres away from penetrations, does it? A. No, it doesn't. Q. Isn't it the likelihood that you didn't say to Mr Khouri, "Stay 3 metres away from penetration"? A. I couldn't comment on that, because I don't remember. HIS HONOUR Q. Mr Millard, is that a fairly significant piece of advice to give to a fairly new employee? A. Yes. Q. Is there any reason why you wouldn't record it then, if you'd given that advice? A. No. Look, it's something that you deal with on-site every day, so it most likely would've been said. Q. It's a problem or a danger that your employees might experience almost daily? Is that what you're saying? A. Oh yeah, yep. Q. Which means it's even more significant and more important? A. Yeah. Q. But it's not recorded anywhere about giving that advice? A. No."
In cross examination Mr Millard accepted the generic advice given to the plaintiff that he should "just be careful" or "take care" would have been inadequate. He made the following concession: "Q. What should Vahid have told Mr Khouri, as a trainee surveyor, about the open penetration I've asked you to assume? A. Well, don't go near it. Q. When you say, "Don't go near it", how far away should he have told Mr Khouri to stay from the penetration? A. Was there safety fencing? Q. No, assume there's no safety fencing around the penetration? A. Three metres. Q. Should he have told him that in circumstances where he would've been told the same thing by you? That is, that you should stay 3 metres away? A. Yeah. I mean, as surveyors working on a construction sites, we know that. You get it in every site induction you should get it in every site induction so it's the normal on a site like that. Q. If it's for someone new, like the plaintiff, who is new and still a trainee, what would you have expected his supervisor would've done? A. Well, I would expect he tells him that. … Q. It'd be inadequate advice from Vahid to the young trainee to simply say to him, "just be careful," or "take care," as he's approaching Vahid. A. Well, I guess that would be the minimum. Q. But that's not telling him specifically to take 3 metres distance. Keep a 3‑metre distance away from a penetration hole that the two of them knew was there. A. I guess it'd be ‑ yeah. You know - Q. That's not adequate at all; is it? A. Yep. Q. The failure of taking safe measures for the protection, particularly of a trainee, a rookie employee, is that right? A. Yep."

[7]

Inspector Michael Holder

Inspector Holder had been a SafeWork NSW inspector for six years, having previously worked in the building industry for approximately 35 years. He was a fully licensed builder and carpenter by trade. In his capacity as an inspector, he was dispatched to investigate the accident. Whilst initially suggesting he arrived at approximately 2:30 pm, this was subsequently corrected by reference to several photographs taken on his arrival at the site with a time stamp of 12:57 pm.
Upon walking onto the site, he observed the plaintiff being stretchered away who, he suggested, looked "pretty normal". He was taken through documents produced by WorkSafe NSW (Ex D2-A), identifying those entries which he authored. He confirmed that two improvement notices were issued relating to unprotected reinforcing bars and electrical equipment which was not properly inspected and tested.
At the site he was met by John Ibrahim who identified himself as the site supervisor and Hatem Saba who was identified as the WHS supervisor. John Mouawad was identified as the construction manager although he advised he was not at the site at the time of the accident. He identified various photographs taken at the scene and completed entries in his notebook. Inspector Holder indicated that he completed a walk around the level from which the plaintiff fell but did not observe any other uncovered penetrations.
In cross examination by counsel for the plaintiff, the inspector confirmed that it was a requirement that work cease immediately after an accident so that SafeWork can property inspect the scene on their arrival. He was shown several photographs suggesting the worksite had been altered following the plaintiff's fall and prior to his arrival, particularly the size of the penetration through which the plaintiff fell. Following objection, counsel for the first and second defendant conceded, by reference to the photographs, that indeed the dimensions of the penetration had changed between the time of the accident and the arrival of the inspector, by the installation of additional formwork boards. Inspector Holder agreed that, self-evidently, the penetration cover installed over the site of the fall had been put in place following the plaintiff's fall.
He agreed that, when viewed from above (Ex D2-A, photo 10), it appeared that a formwork board was unsupported. In the circumstances, if someone was to walk on the board it would move with the risk of a loss of footing and a fall into the penetration. However, during cross examination by counsel for Summit, the inspector was taken to the photograph exposed from below (Ex D2-A, photo 3) which appeared to show bearings directly underneath the plywood where the plaintiff fell. In the circumstances, he would not expect the plywood to collapse if walked on from above.
Mr Holder noted from the plaintiff's statement that whilst still impaled he observed a worker above using a saw resulting in dust falling into his eyes. Mr Holder agreed that this was most unusual given that all work should have ceased immediately following the fall.

[8]

Documents produced - SafeWork NSW

The documents confirm that at the time of his attendance on site, Inspector Holder was introduced to a number of employees of Toplace including John Mouawad (Construction Manager), John Ibrahim (Site Supervisor) and Rene Mouawad (Site Manager).
The site inspection confirmed the presence of uncapped 24 mm steel starter bars on level 1, in and around the site of the accident. Further on floor 2 there was a piece of form ply measuring 1200 mm x 900 mm which had been unsecured and moved adjacent to the opening where the plaintiff had fallen approximately 3.6 m onto the starter bars below, through a penetration measuring approximately 1480 mm by 480 mm.
Rene Mouawad had advised that the plaintiff was a surveyor's hand who was marking the offset gridlines on the form ply for a bathroom set out on floor 2. Improvement notices were issued in respect to the capping of all starter bars and to update the electrical register. Various photographs were reproduced which were taken by the Inspector of the site of the accident. A notebook was also produced confirming the Inspector's observations.
The notebook contained a statement obtained from the plaintiff on 15 February 2018 which recorded the following: "Arrived on site 8 - 8:30ish met on site with site manager and received instructions for the day on level 1. Once instructions received surveyor set up to start at approximately 9 am. Also on the deck were form workers who were working on the formwork deck. At exactly 11am the form workers left the work area for lunch as well as the rest of the site. Michael was almost finished. I then went to grab the marking paint to finalise the set out, on return to the location where the surveyor was finalising last calculation check. As I was walking back towards Vahid I noticed a penetration to my left. The penetration was unguarded. As I walked past about 500 mm … the floor gave way and I fell. As I was laying there, I noticed a worker above me using a saw. I remember this because the people helping shouted out to stop as dust was falling into my eyes…"
The notebook entry records that the plaintiff was employed for approximately 14 weeks and was not inducted to the site on the day of the accident.

[10]

Major Works Subcontractor Agreement between Toplace and Summit Formwork ("the subcontract")

The subcontract was entered into between Toplace (in its capacity as "builder" and "Principal") and Summit Formwork (as subcontractor) on 9 August 2017.
Schedule D provided the subcontract scope of works which included "the supply and installation of all necessary labour, material, delivery, plant hire, equipment, permits, insurances, supervision and all other services required to complete the works and related works for the project".
The schedule provided the following further clauses: "2.1.3 The Subcontractor has allowed for the supply and installation of Formwork in accordance with the design documentation, Development Approvals (DA) and as per the relevant Australian Standards and BCA. 2.1.4 The Subcontractor has allowed for the installation of steel in accordance with the design documentation, Development Approvals (DA) and as per the relevant Australian Standards and BCA. 2.1.5 The Subcontractor has allowed for the supervision of steel placement. … 2.1.13 The Subcontractor has allowed for the provision of penetrations for all services as required. … 3.11 Subcontractor is to coordinate with structure and services contractors for penetration requirements; provision for penetrations and necessary cut-outs, together with any sealing and fire rating sealing's necessary. … 6.2 The Subcontractor shall provide a fulltime on-site project supervisor/foreman to coordinate the works with other Subcontractors and consultants in the execution of the works, take and receive instruction from the Builder and make commitments on behalf of the Subcontractor. Supervisor must be trained in WHS Supervisor course and be competent to supervise applicable trade works. … 7.1 The Subcontractor shall submit a Project specific Safe Work Method Statement and any relevant Material Safety Data Sheets in accordance and compliance with Work Safe and WHS Regulatory requirements prior to commencing works on site. 7.2 All Subcontractors are required to submit Safe Work Method Statements (SWMS) in accordance with WHS Regulations 7 days prior to commencement on site. … 7.10 The Subcontractor must always maintain handrails on working decks in accordance with the relevant Australian Standards and Work Health and Safety acts, regulations and codes of practice. … 7.12 The Subcontractor shall ensure that all workers are inducted and signed off on the SWMS relevant to their work on site, prior to the commencement of the work. This also includes any relevant training and instruction in relation to any designated high risk works. … 7.19 The Subcontractor agrees to tool box his site workers daily and as soon as possible when issues arise with the safety committee inspection report, signed off by each site worker and returned to the site office no later than 24 hrs. … 7.25 The Subcontractor has allowed for the provision, installation, maintenance and removal of all protective bar caps to all exposed ends of reinforcing bars. … 7.27 The Subcontractor is to make sure that working decks are protected by handrails to prevent falling."

[17]

Findings of fact

The plaintiff's evidence was generally unchallenged, particularly in respect to the liability issues. However, he was prepared to make concessions against his interest, whether it be in respect to his case as to liability or damages. The plaintiff delivered his evidence in a careful and considered way. I found him to be credible.
I accept the plaintiff's evidence that he was provided with limited instruction and training by his employer at the commencement of his employment. Whilst it is undisputed that the plaintiff signed his employer's SWMS on the day he commenced employment, he had no recollection of being directed to that section of the statement related to the risk of falls. Further. he had no recollection of being instructed about penetrations on building sites.
Aaron Millard's evidence that he would have read through every line of the statement with the plaintiff is difficult to accept. Similarly, Millard's claim that the plaintiff would have been told to stay three metres away from penetrations is also difficult to accept. In seeking to corroborate his evidence that the latter instruction would have been given he referred to the SWMS. However, as he conceded, the reference to "staying 3 metres clear" related to an excavation edge rather than a penetration. His claim that this was "a typo" lacks credibility. The acknowledgment of the SWMS by the plaintiff, evidenced by his signature, along with numerous other employees, is of dubious weight given he was also acknowledging: "I have been consulted and have assisted in the development of this SWMS."
Self-evidently the plaintiff could not have been consulted and/or assisted in the development of the SWMS.
Mr Millard accepted that a specific instruction to remain three metres away from a penetration was a significant piece of advice to give to an employee in circumstances where this risk was one which surveyors would confront on-site "every day". Despite this there was no written record of such advice ever being given.
The plaintiff's evidence that he did not undergo site induction on any visits to the site was unchallenged. I accept the plaintiff's evidence in this respect. Vahid gave evidence of a brief site induction on his first visit to the site.
The plaintiff's evidence of open and unprotected penetrations during the hours he worked on the site was corroborated by the evidence of Vahid. Neither were challenged in respect to this evidence. Nor was either witness challenged as to the fact that penetrations were left open and unprotected when all other workers left the site for their break at 11 am. I accept their evidence in this respect.
The only other evidence on this issue is the statement of Sayed Hazouri dated 6 February 2018 in which he said the following: "Before starting the formwork decking of Building A level 2, I instructed all workers to cover all penetrations immediately and secure all covers to the deck with nails per the company SWMS and safety requirements, I supervised the activities accordingly."
There are a number of difficulties with this statement. First, the author did not give evidence and accordingly the assertions contained in the statement were not able to be tested by way of cross-examination. Second, the statement is non-specific as to when such an instruction was given or when the alleged activities were "supervised". Third, to the extent it is claimed that all penetrations were "immediately" covered and secured, it is contrary to the observations of the Safety Committee on 10 January 2018 which found an unmeshed penetration box and observations on 24 January 2018 (the day before the plaintiff's accident) of uncovered formwork deck penetrations. The photographs of uncovered penetrations were annexed to the minutes dated 24 January 2018.
It was the plaintiff's evidence that Vahid had provided no more than a general warning to be careful. Vahid had no recollection of providing more specific direction to the plaintiff other than to be careful around the penetrations.
Whilst Vahid did not give evidence that the plaintiff was directed to retrieve the spray can, I accept the plaintiff's evidence that this was the sequence of events leading to his fall. It is consistent with the relatively contemporaneous statement provided by the plaintiff to the WorkSafe Inspector several weeks after the accident.
It was the plaintiff's evidence that immediately prior to his fall he felt his "…whole body wobble like someone hit the back of my knee". He then stumbled, lost his balance, and fell onto his side. The plaintiff told the Workplace Inspector on 15 February 2018 that he felt the floor give way before falling. I am satisfied that the plaintiff's initial loss of balance was because of an unstable scaffold board which moved, resulting in a loss of balance and the plaintiff's ultimate fall into the penetration.
It is readily apparent, as conceded by counsel for the first and second defendant, that the site of the plaintiff's accident was altered prior to the attendance of the WorkSafe Inspector. This included the placing of formwork planks around the penetration to reduce its overall dimensions and the subsequent placing of a cover over the entire penetration. This is also supported by the plaintiff's statement to the WorkSafe Inspector that whilst still impaled a worker was using a saw directly above him such that dust was falling into his eyes. Accordingly, any evidence given by Inspector Holder as to his own observations of the state of the penetration or the structure supporting the formwork is of little weight, as would any evidence of the Inspector based upon photographs taken by him on this issue.
I make the following findings of fact: 1. The plaintiff was born on 1 March 1999 and at the time of the accident was aged 18. 2. The plaintiff commenced work with Ramsay on 6 November 2017, having had no prior experience working in construction. 3. When he commenced work with Ramsay, the plaintiff was taken through safety protocols and signed a SWMS. 4. The plaintiff was not taken through the SWMS at the time of the plaintiff's commencement of employment with Ramsay. He was advised as to safety protocols and given general safety instructions such as to be careful and pay attention when working on a construction site. I am not satisfied that the specific hazards identified on page 6 of the SWMS relating to falls through penetrations or from unprotected edges was specifically drawn to his attention. The plaintiff's training was otherwise ad hoc on-site training. 5. On 25 January 2018 the plaintiff attended the site. 6. Toplace was the head builder and principal contractor on the site. 7. Toplace subcontracted to Summit to construct formwork on the site in accordance with the subcontract. 8. The plaintiff had attended the site on a number of occasions prior to 26 January 2018. 9. At no time when attending the site was the plaintiff given any site induction, instruction, direction, or SWMS by either Toplace or Summit. 10. At no time prior to attending the site was the plaintiff provided with any site-specific induction, instruction or training by his employer. 11. Vahid had previously completed a site induction and completed a pre start form. 12. At about 9 am on 25 January 2018 the plaintiff attended the site with Vahid. 13. An employee of Toplace provided Vahid with general instruction on the surveying work to be completed on the day. Neither Vahid nor the Plaintiff were given any induction or safety instruction in respect to the work they were to perform that day. 14. Vahid and the plaintiff proceeded to floor 2 of the site where they commenced surveying work. The level was partly constructed of plywood formwork boards. The formwork for the level was not yet complete. 15. At the time they commenced the surveying work there were approximately 10 form workers, employed by Summit, continuing to install formwork boards, and cutting penetrations in the formwork. 16. The only safety direction given to the plaintiff by Vahid was a general direction to be careful around the open penetrations. 17. Whilst working on floor 2 for a period of approximately two hours there were between two and four open penetrations cut into the formwork, including the penetration through which the plaintiff ultimately fell, which were without covers or any other fall protection barrier. 18. At 11 am the form workers left the level upon which the plaintiff was working. The plaintiff and Vahid were the only remaining workers on that level apart from two workers working in a lift well. 19. At the time the workers left, there remained somewhere between two and four open penetrations which were without covers or any other fall protection barriers. 20. Whilst marking out the last survey mark, Vahid directed the plaintiff to retrieve a spray can. 21. Whilst retrieving the spray can the plaintiff walked past the open penetration through which he ultimately fell. 22. On his return journey the plaintiff lost his balance, caused by an unstable formwork board upon which he walked, and fell into the open penetration, impaling his leg on a vertical steel bar which was otherwise uncapped. At the time of the plaintiff's fall the open penetration did not have any fall protection barriers installed. 23. After the plaintiff fell, and prior to the attendance of the WorkSafe Inspector, the dimensions of the penetration through which the plaintiff fell were reduced by the installation of further formwork boards by persons unknown.
Counsel for Summit contended that the plaintiff had not established on the balance of probabilities that Summit was responsible for the open penetration through which he fell. In part Summit contended that this submission was supported by the evidence of Vahid that there were workers other than those employed by Summit working on that level. It was contended that whilst the plaintiff gave evidence of approximately 10 workers, all of whom were form workers, Vahid's evidence was that there were approximately 20. It was contended that the difference in numbers was accounted for by persons other than form workers.
The plaintiff described the site when he first arrived on floor two as follows: "So it was all formwork board. So all the plywood boards. A quarter of the section or half of it - I can't remember - was still being laid out of formwork. There was, of course, formwork boards everywhere. Workers everywhere. Course the people were cutting penetration. Columns were coming in and about to be placed in the penetrations."
The plaintiff estimated there were "10 or so people" working before they went on their break. After the break the only people remaining on the level was himself, Vahid and "the two guys in the lift shaft".
In cross examination the plaintiff confirmed that form workers were still putting up plywood boards when he reached the upper level. He recalled there being about ten form workers "give or take". The plaintiff further confirmed that shortly after or around 11 am the form workers went for their morning break.
Vahid gave evidence that when he first arrived on the level there were other workers up there working which he estimated at "maybe 20 people". When asked whether he saw these people doing various jobs Vahid said the following: "They were form workers and I think that it's steel guys as well, but mostly form workers."
The plaintiff gave evidence that he was on level two for about an hour or two during which time he saw "maybe about two to four" penetrations, none of which were covered. Immediately before the accident, and before the workers left that level, he did not see anyone covering the penetrations. The plaintiff gave evidence that throughout the morning he saw people cutting the penetrations. More particularly, he agreed that he saw people cutting the "four or so" penetrations in respect to which he earlier gave evidence.
Vahid gave evidence that when he first arrived on the level, he observed people working on penetrations; there was "definitely more than one". Vahid was asked whether the penetrations that he observed were being worked on or they were left by themselves to which he replied: "Some of them probably were cutting by the people or some of them still working, put the steel in. We did not need to do any work with them because they were already cut."
There are a number of difficulties with Summit's submission given all of the evidence. First, the plaintiff's evidence that the workers on floor 2, apart from two workers in the lift well, were all form workers, was unchallenged. It was never suggested to the plaintiff that there were persons other than form workers actively engaged with the formwork on that level. To the extent Vahid suggested there were 20 workers I prefer the evidence of the plaintiff. Vahid's recollection as to specific detail when giving evidence was inconsistent with a contemporaneous statement given within months of the accident. Second, the plaintiff in his statement to Inspector Holder, taken within weeks of the accident, referred only to form workers working on that level. Third, there was no evidence that persons other than form workers were working on the formwork. Fourth, it was the evidence of the plaintiff and Vahid that they observed a number of penetrations being cut into the formwork, including the penetration through which the plaintiff ultimately fell. Fifth, it was Vahid's evidence that most of the persons working on that level were indeed form workers. Sixth, the formwork contract between the first and second defendants required Summit to perform the following subcontract works: 1. the supply and installation of formwork in accordance with the design documentation. 2. the provision of penetrations for all services as required. 3. provision for penetrations and necessary cut outs. 4. the provision of handrails.
Further, Summit's SWMS identified a relevant risk of "falls from heights" as a consequence of the cutting and forming of penetration openings. The SWMS provided two control mechanisms as follows: "1. Penetration openings are to be covered progressively and as soon as practicable and prior to the stripping of the soffit directly below the penetration. 2. Penetration covers to be secured, highlighted. 3. Ensure fall protection in place to all … penetrations prior to commencing work. 4. Establish and maintain exclusion zones around and below areas of work."
In all the circumstances, I am satisfied that the open penetration through which the plaintiff fell was created by employees of Summit some time on the morning of 25 January 2018. Further, I am satisfied that following its creation, Summit's employees failed to install any protection cover or any other fall protection barrier prior to the plaintiff's fall.

[18]

Breach of duty

The issue of breach requires consideration of s 5B of the CLA which provides as follows: "(1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
Further, s 5C of the CLA provides as follows: "In proceedings relating to liability for negligence - (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
It is necessary to first identify the relevant risk of harm. The plaintiffs articulate the risk of harm as the risk of a person suffering personal injury as a result of falling through a penetration and having his leg come in contact with an uncapped reinforcing bar. The agreed question for the joint liability experts articulated the relevant risk as "the risk of a person in the position of the plaintiff falling through part of floor on floor 2 of the site and coming into contact with a reinforcing bar below." Both statements fairly articulate the risk of harm for the purpose of s 5B of the CLA. The risk of harm was the risk of a person falling through an open and un-barricaded penetration onto steel reinforcing bars installed on the level below. Self-evidently the risk was foreseeable. There were numerous workers working on a plywood formwork platform on which open penetrations had been cut and left without any form of fall protection barrier. Further, the risk was not insignificant in that a fall through the penetration onto protruding steel bars had the potential to cause serious injury, or death, particularly if a person was impaled by multiple reinforcing bars such as those installed where the plaintiff fell.
The issue as to what a reasonable person would have done in response to the risk of harm must be considered prospectively: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [31] and [40]; Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 at [51].
In determining whether a reasonable person in Toplace's position would have taken precautions against the risk of harm, s 5B (2) of the CLA provides that the court is to consider the probability that the harm would occur if care were not taken, the likely seriousness of the harm and the burden of taking precautions to avoid the risk of harm.
Toplace admits that it was the head builder and principal contractor engaged in the construction of a multi-storey residential/commercial complex at the site. In that capacity Toplace entered into a subcontract with Summit for the supply and installation of formwork at the site.
In Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 the Court distinguished the duty of care of a principal to independent contractors and the duty owed to employees. However, citing Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, the Court observed that there might be circumstances where a principal will be under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe: at [20]. In Stevens, Brennen J observed: "The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury." (emphasis added)
In Pacific Steel Constructions Pty Ltd v Barahona; Jigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406, the Court (Allsop P, Beazley and Giles JJA), having cited Stevens, observed at [87]: "… The basic principle remains, however, that the principal has no duty to retain control of the system of work if it is reasonable to engage the services of an independent contractor who is competent to control the system of work without supervision, and the activity has been organised and has been placed in the hands of the independent contractor." (emphasis added)
The subcontract retained in Toplace a degree of control and supervision over Summit's work, synonymous with the duty discussed in Leighton Contractors and Stevens.
The subcontract provided for the appointment by Toplace of a "Builder's Representative" who would: 1. act on behalf of the Builder in connection with the subcontractor; 2. administer the subcontract for and on behalf of the builder; and 3. monitor the performance of the subcontract in connection with its obligations under the subcontract.
The subcontract further provided: "31. The Builder may issue any direction of whatsoever nature relating to any act, matter or thing arising out of or in connection with the Subcontract Works as the Builder considers appropriate. The Subcontract must comply with all such directions".
The agreement further provided that if the subcontractor did not comply with any direction issued by the builder, the builder may issue a notice to the subcontractor requiring compliance within a reasonable period. In the event there was no compliance, the contract empowered the builder to employ and pay others to execute any work which may be necessary to give effect to the builders direction, and any cost properly incurred in respect to such conduct was payable by the subcontractor.
The agreement also required the subcontractor to rectify all safety improvement notices issued by Toplace "immediately". Further, Toplace was entitled to withhold payment of any amount that may be otherwise due until such safety improvement notices had been rectified to the satisfaction of Toplace.
The minutes of the Weekly Site Safety Walk demonstrate that Summit was not complying with the subcontract regarding safety nor its own SWMS. Summit's non-compliance related to significant matters of safety which exposed workers on the site to the real risk of serious injury. They included unprotected formwork penetrations, unmeshed penetration boxes, missing handrails on formwork decks and missing edge protections. The failings fell within either the highest or second-highest risk ratings.
Summit's fundamental failures to adhere to appropriate safety standards was compounded by its failure to comply with critical deadlines for the rectification of the safety defects. At a walk through on 20 December 2017, an unprotected formwork penetration was found. The minutes recorded that it was to be completed by the following day. This is unsurprising given it had the highest risk rating and gave rise to a significant risk of injury. However, the defect was not rectified until weeks later (10 January 2018) thereby exposing workers on the site to serious injury in the intervening period.
The minutes dated 10 January 2018 record further failures by Summit in meeting rectification deadlines. The meeting minutes dated 24 January 2018 similarly demonstrate Summit's failure to rectify defects within the times required. The absence of an exclusion zone during formwork stripping activities was identified on 7 December 2017 but not completed until 24 January 2018. An unmeshed penetration box identified on 10 January 2018, which required rectification by 12 January 2018, was not completed until 24 January 2018. Similarly, an unsafe propping of formwork deck on a tower crane structure (the highest risk rating), identified on 10 January 2018, and required to be rectified by 11 January 2018, was not completed again until 24 January 2018.
The minutes record that Hatem Saba and John Ibrahim attended the various site safety walk meetings on behalf of Toplace. John Ibrahim gave evidence that whilst he is now a Site Supervisor with Toplace, at the time of the accident he was a leading hand, describing his role as follows: "My role there mostly was like to, for concrete, for structure, to calculate how much concrete we need, and to deal with the concrete coming on site, and yeah"
He was not performing the role of a Site Safety Officer. Mr Ibrahim gave evidence that Hatem Saba was the Work Health and Safety representative for Toplace on-site. It is unclear whether Mr Saba was on-site at the time of the plaintiff's accident, given Mr Ibrahim's evidence that he would move between sites.
More significantly, on the day of the accident, Inspector Holder met John Mouawad, who was identified as the Construction Manager for Toplace, and Rene Mouawad who was identified as the Site Manager. Neither witness was called by Toplace and there is no explanation for their failure to be called. In the circumstances, absent any explanation for their failure to be called, I draw an inference that their evidence would not have assisted Toplace's case: Jones v Dunkel (1959) 101 CLR 298.
The liability experts agreed that Toplace, as head contractor, had overall responsibility for site safety. The experts agreed that a reasonable person in the position of Toplace would have taken the following precautions in response to the risk of a person in the position of the plaintiff falling through part of the floor and coming into contact with reinforcing bars: 1. Ensured a safety management plan was developed for the project and that the plan detailed the various systems and processes required for the safe performance of work on the project. 2. Ensured that a SWMS was provided by contractors and subcontractors which would then be reviewed to ensure they were adequate and complied with regulations and codes of practice. 3. Inducted personnel from contractors and subcontractors onto the site which should include safety risks pertaining to the work were clearly identified as well as control measures necessary for the performance of the work. 4. Ensured that systems for addressing safety risks associated with open penetrations were developed, implemented, embedded and audited. 5. Ensured that all work areas made available to workers had installed barriers around any openings to prevent a fall. 6. Ensured that the surface upon which the workers were required to traverse was structurally capable of supporting all persons and things that may be located on it. 7. Assigned qualified and competent personnel to the construction project with day-to-day supervisory management responsibilities for ensuring that the works were carried out safely, identifying hazards/risks, providing instructions and warnings to workers and contractors about safe systems of work and correcting unsafe acts, including non-compliance with developed method statements for securing of open penetrations. Conduct toolbox talks and periodic site safety inspections to address identified non-compliance with safe work methods. 8. Disseminated information from the previous day safety walk to contractors and subcontractors noting critical safety risks, particularly pertaining to unprotected open penetrations found within the workplace and conduct toolbox talks, so the workers were more informed.
The plaintiff further relies upon the opinion of David Cockbain who identified additional precautions which should have been taken by Toplace including: 1. Deferring the work until contractors were no longer working on that level and until such time as all penetrations had been adequately secured and guarded. 2. Requesting contractors provide and install appropriately rated mesh or an advanced guard rail system to all open penetrations so as to eliminate the risk of workers falling through the open penetration.
The plaintiff also relies upon the opinion of John Cook, retained on behalf of Toplace, that weekly safety committee walks on site were a "minimum requirement" and that "a daily safety committee walk was desirable, rather than a weekly safety committee walk".
The articulated risk of harm was foreseeable, particularly in circumstances where Toplace was aware that penetrations would be created in the formwork platform on the day of the plaintiff's attendance, and that such penetrations had previously been left open and otherwise unprotected by Summit. The risk of persons falling through such open penetrations, particularly where there were protruding steel formwork bars installed below, was not insignificant.
The more significant issue is the precautions which Toplace should have taken as a reasonable person in its position.
At the time of the plaintiff's accident, Toplace was aware of the following: 1. Summit was erecting formwork platforms on the level where the plaintiff and his supervisor would be undertaking surveying work. 2. Summit's work included creating open penetrations on the formwork platform. 3. In accordance with the subcontract and Summit's SWMS, Summit was required to progressively cover penetration openings, such covers to be secured and highlighted. Further Summit was required to ensure fall protection was in place to all leading edges, voids or penetrations and to establish and maintain exclusion zones around and below areas of work. 4. Summit had repeatedly failed to comply with the subcontract and its own SWMS. 5. Summit had failed to comply with directives from Toplace to rectify the safety breaches within the stipulated time frames.
Toplace contends that it was not under a duty to control the system of work performed by Summit as a reasonably competent independent contractor. Toplace further contends that it was reasonable for it to rely upon the SWMS developed by Summit as a specialist contractor with. Relevantly, Summit was required to comply with control mechanisms identified in its SWMS including the covering of penetrations, maintenance of handrails and exclusion zones. Further Toplace, as the principal contractor did not owe a general duty to train the workers of its contractors in the safe method of carrying on their trade. In any event, it was contended that the evidence did not support a finding that the instability of the plywood that caused the plaintiff to fall was something Toplace ought to have appreciated.
In the ordinary course, a principal contractor such as Toplace would not have a duty to retain control or supervision of working systems in circumstances where it engaged the services of independent contractors who were "competent themselves to control their system of work without supervision" (Stevens at [47] - [48]).
However, as the plurality in Leighton Contractors observed, there will be circumstances where a principal will be under a duty to use reasonable care "to ensure that a system of work for one or more of independent contractors is safe". Similarly, Brennan J in Stevens observed that circumstances "may make it necessary for the entrepreneur to retain and exercise a supervisory power".
The circumstances subsisting at the time of the plaintiff's accident were such that Toplace was under a duty to retain and exercise a high degree of supervision and control over the work performed by Summit. Summit had repeatedly failed to comply with its own safe work practices as well as failing to comply with directions issued by Toplace. Those failures, particularly in respect to the covering, securing, or barricading of open penetrations, created a significant risk of injury, being the very risk which materialised when the plaintiff fell through such a penetration, suffering serious injury.
The subcontract provided for Toplace to appoint a building representative with the responsibility of monitoring the performance of Summit in connection with its obligations under the contract. The representative was empowered, by virtue of the contract, to issue directions "relating to any act, matter or thing arising out of or in connection with the subcontract works as the builder considers appropriate." The subcontract further empowered Toplace to issue notices requiring compliance with any direction issued by Toplace and further empowered it to intervene by engaging others to execute, at Summit's expense, any work necessary to give effect to any such directions. John Mouawad was nominated as the builder's representative in the contract, and in those circumstances, it is only appropriate that the inference be drawn that his evidence would not have assisted Toplace's case.
In circumstances where: 1. the platform upon which the plaintiff was working work was a dynamic worksite where multiple penetrations were being created; 2. there were numerous workers walking around the formwork platform; 3. the form workers had repeatedly failed to cover open penetrations it created; 4. the form workers had repeatedly failed to install protective barriers around such open penetrations; 5. the form workers had repeatedly failed to comply with directions of Toplace to rectify the safety defects; 6. the open and unprotected penetrations posed a significant risk of injury to workers on the formwork deck; a reasonable person in the Toplace's position would have exercised a high degree of vigilance and supervision in respect to Summit's formwork activities, involving constant monitoring on a daily basis, and throughout the course of the workday, of its work. Toplace did not implement such precautions. It was the evidence of Vahid and the plaintiff that throughout the course of the morning, Summit cut penetrations which were allowed to remain uncovered and unbarricaded. The open penetrations remained in that state until 11 am when the form workers vacated the site for their morning break, leaving Vahid and the plaintiff to continue their work.
Further, given the circumstances pertaining to Summit's disregard for safety protocols, and the significant risk of injury to the plaintiff and/or his supervising surveyor falling through an uncovered and/or unprotected open penetration, Toplace should not have permitted the surveyors to enter the formwork platform without undertaking its own inspection of the work area and, if necessary, denied them access to the level until all penetrations were properly covered and/or barricaded.
Alternatively, prior to directing Vahid and the plaintiff to the formwork platform Toplace should have provided them with site specific induction and direction regarding the dangers of working on the formwork platform whilst open penetrations were being created and potentially left open and/or unprotected.

[19]

Causation

It is then necessary to consider whether the plaintiff has established that Toplace's negligence was a necessary condition of the occurrence of the harm. In the event factual causation is established it is not contended that the scope of liability, element of causation provided in s 5(D)(1)(b) of the CLA has not been proven.
The court is required to consider general principles of causation as provided in s 5D (1) of the CLA which provides as follows: "(1) A determination that negligence caused particular harm comprises the following elements - (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)."
Factual causation, as required by s 5D (1)(a) reflects the "but for" test of causation: Adeels Palace Pty Ltd v Moubarak at [55] per French CJ, Gummow, Hayne, Heydon and Crennan JJ; Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182 at [18] per French CJ Gummow, Crennan and Bell JJ. In Strong v Woolworths, the plurality observed: "[20] A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D (1)(a), in such a case, the defendant's conduct may be described as contributing to the occurrence of harm. … "[32] The appellant was required to prove on the balance of probabilities that Woolworths's negligence was a necessary condition of her harm. Woolworths's negligence lay in its failure to employ a system for the periodic inspection and cleaning of the sidewalk sales area. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W… [34] … It was incumbent on the appellant to prove that it was more probable than not that Woolworths's negligence was a necessary condition of her fall, but this onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited…" (citations omitted)
The plurality cited with approval the judgment of Hayne JA (as he then was) in Kocis v SE Dickens Pty Ltd [1998] 3 VR 408, and in particular, his Honour's observations that: "[34] … a plaintiff must prove his or her case on the balance of probabilities and it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open. The determination of the question turns on consideration of the probabilities." (citations omitted)
The plaintiff and his supervisor were permitted by Toplace's representative to perform work on the platform where cut penetrations were left uncovered and/or unprotected. The plaintiff fell through one such penetration. Toplace's negligence in this respect was a necessary condition of the plaintiff's injuries. Further, the form workers were permitted to perform their work unsupervised, resulting in their repeated cutting of penetrations which were left uncovered and/or unbarricaded. The failure of Toplace to adequately monitor, supervise and direct the form workers similarly resulted in penetrations, including the penetration through which the plaintiff fell, being left open and/or unprotected. Toplace's failure to properly supervise, inspect and direct the form workers in respect to their work was also a necessary condition of the plaintiff's injuries which he suffered.
I am further satisfied that the failure of Toplace to provide Vahid and the plaintiff with site specific instruction and direction as to the dangers in working around the open and unprotected penetrations were necessary conditions of the occurrence of harm that befell the plaintiff.

[20]

Breach of duty

Summit admits it had owed a duty of care "to the extent required under common law and statute" (defence to third amended statement of claim at 4).
Summit was performing works at the site in accordance with the subcontract which provided that Summit would supply and install the formwork, including allowing for the installation of steel and the provision of penetrations. Further Summit was to provide a full time on-site project supervisor/foreman to coordinate the works with other subcontractors and consultants. It was required to have in place and maintain handrails on working decks to prevent falling.
Summit prepared a High Risk SWMS as required by the contract. This statement specifically provided that penetration openings were to be covered "progressively and as soon as practicable" and that such covers were to be secured and highlighted. Further it was to have fall protection measures in place to all leading edges, voids or penetrations as well as establishing and maintaining exclusion zones around and below the areas of work. Additionally, it was to ensure that formwork supporting structures and materials were secured against falling over a leading edge, void or penetration.
In the circumstances, it is unsurprising that the liability experts agreed that a reasonable person in the position of Summit would have taken the following measures in response to the very risk of a person in the position of the plaintiff falling through part of the floor and coming into contact with the reinforcing bar below: 1. erected a stable formwork deck in accordance with relevant Australian Standards. 2. not left unattended open penetrations. 3. ensured that all work areas made available to workers had installed barriers around any openings to prevent a fall. 4. ensured that the surface upon which workers were required to traverse and work upon were actually capable of supporting all persons and things that may be located on it. 5. assigned a qualified and competent person to the project with day-to-day supervisory management responsibilities for ensuring that works were carried out safely, identifying hazards/risks, providing instructions and warnings to workers and contractors about safe systems of work and correcting unsafe acts, including non-compliance with developed SWMS for the securing of open penetrations. 6. restricted access to the deck where there were open penetrations through warning tapes or other barricades/warning signs.
Whilst Summit had prepared a SWMS which provided for the covering and otherwise protection of penetrations in the formwork, the evidence established that it failed to comply with it. There were failures in the weeks and months prior to the plaintiff's fall.
The evidence established that on the morning of the plaintiff's fall its employees had again failed to comply with the SWMS. Given my findings that the plaintiff's fall was precipitated by an unstable formwork deck, Summit had failed to comply with the applicable Australian Standard (AS 3610) and failed to provide a surface which was structurally capable of supporting workers walking on it. Summit had left a number of unattended open penetrations and fundamentally failed to implement any control measures to safeguard the penetrations and prevent a risk of fall.
There was no evidence that Summit had a supervisor or manager to ensure that the works were carried out safely, identified hazards, provided warnings or corrected unsafe acts. Even if such a person was present, they fundamentally failed to perform their obligations at all. Neither the plaintiff nor Vahid were appraised of the risks arising from the open penetrations. Despite the open penetrations, the plaintiff and Vahid were permitted onto the formwork deck and to roam freely without any restriction or direction.
I am satisfied that those precautions articulated by the experts were precautions which a reasonable person in Summit's position would have taken given the probability that the harm would occur if care were not taken, the likely seriousness of the harm and the burden of taking those precautions to avoid the risk of harm. Indeed, the very precautions which experts identified were precautions which Summit was, unsurprisingly, required to take in accordance with its contractual obligations under the subcontract.
In all the circumstances, I am satisfied that Summit breached the duty of care it owed to the plaintiff.

[23]

Breach of duty

Ramsay, as the plaintiff's employer, owed the plaintiff a personal, non-delegable duty of care requiring that reasonable care be taken. As the plurality observed in Leighton at [21]: "This is a more stringent obligation than a duty to take reasonable care to avoid a foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employees. This is because it will have failed to discharge the special duty it owes to its employees to ensure that reasonable care it taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee". (citations omitted)
At the time the plaintiff commenced employment with Ramsay he was taken through safety protocols and provided general safety instruction when working on construction sites. However, I am not satisfied that the plaintiff was given any specific direction or instruction by his employer in respect to working on formwork platforms and in particular working around platforms with open penetrations. I am not satisfied the plaintiff was provided with more specific instruction to remain at least 3 metres away from open penetrations. This is despite the evidence of Millard that the risks arising from penetrations were encountered by surveyor employees on a daily basis. Millard recognised that such an instruction was significant and important given the regularity with which such penetrations were encountered.
On the day of the accident the plaintiff was under the direct supervision and direction of an experienced surveyor. The plaintiff was not provided with any specific instruction from Vahid to stay 3 metres away from the open penetrations. This was in circumstances where Mr Millard conceded the general instruction provided to the plaintiff by Vahid to be careful and take care was inadequate, and that he should have been specifically directed by Vahid to remain 3 metres away from the open penetrations.
I am satisfied that a reasonable person in the position of Millard would have provided the plaintiff with instruction to remain 3 metres away from open penetrations given the regularity with which the plaintiff was likely to be confronted with such a circumstance and the fact that the risk of harm previously identified was foreseeable and not insignificant. Further, I am satisfied that a reasonable person in the position of Vahid, as the plaintiff's direct supervisor, would have similarly directed the plaintiff to remain 3 metres away from the open penetrations given the foreseeable and not insignificant risk of harm.

[25]

Contributory negligence

Toplace concedes that if the court was to find the plaintiff was not instructed to stay 3 metres away from open penetrations there would be of no finding of contributory negligence. Summit submits that given the plaintiff's knowledge of the open penetration and the path the plaintiff took to retrieve the spray can, the court would find that the plaintiff did not take care for his own safety. The plaintiff contends that there would be no finding of contributory negligence.
Section 5R of the CLA provides that the principles applicable in determining whether a person has been negligent also apply in determining whether a person who suffered harm has been contributorily negligent in failing to take precautions against the risk of harm. Summit submits that the relevant risk was foreseeable in that the plaintiff knew the risk in taking the path he did so close to the open penetration. It is submitted that a reasonable person in the plaintiff's position would not have taken the path he did, so close to the penetration. Further, but for the plaintiff's proximity to the open penetration, he would not have fallen through it.
Consistent with the findings above I am not satisfied the plaintiff was instructed by his employer to remain 3 metres away from open penetrations. Further, I am satisfied that the precipitating event leading to the plaintiff's loss of balance and fall into the penetration was the unstable formwork board upon which the plaintiff walked.
In the joint report the three liability experts recorded their agreement as follows: "The plaintiff should have taken the precaution to try to avoid stepping into the hole, but if the formwork gave way because of inadequate support that was not something he could have predicted. There is a general responsibility on workers to look out for their own safety to the extent of their training and experience allows noting that the plaintiff was an inexperienced, young and at risk worker."
It is necessary to consider whether a reasonable person in the plaintiff's position would have taken the relevant precautions, those being maintaining a safe distance, considered to be 3 metres, away from any open penetration. Self-evidently such a precaution allows for the possibility of the plaintiff losing his balance and falling over. As previously observed, if the plaintiff had stayed 3 metres away from the open penetration, he was unlikely to have fallen through it. However, the plaintiff was not given any such instruction when he commenced employment nor on the day of the accident. I am not satisfied, given the plaintiff's relative inexperience in working on building sites, that a reasonable person in his position would have taken the precaution of remaining 3 metres away from the open penetration.
I am not satisfied that the plaintiff's damages should be reduced for contributory negligence.

[26]

Apportionment as between joint tortfeasors

In Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494, the High Court (Gibbs CJ, Mason J, Wilson J, Brennan J and Dean J) said the following: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VicRp 15; [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."
Toplace, as head builder and principal contractor, was responsible for the overall safety of the site for those who were working upon it. Toplace fundamentally failed to supervise a recalcitrant subcontractor. Toplace did so in circumstances where it was aware that the subcontractor had repeatedly failed to comply with its own safety standards or directions to rectify such safety breaches. Toplace allowed the plaintiff to enter and remain upon the worksite which was patently unsafe due to the actions of the subcontractor. This led directly to the plaintiff's injuries.
Summit had repeatedly failed to comply with its own SWMS resulting in a serious risk of injury to those working on the formwork platform. It had similarly repeatedly failed to comply with directions issued by Toplace to rectify safety breaches. Summit created a series of open penetrations and left those penetrations open and unprotected in full knowledge that the plaintiff and his supervisor were moving around the site. Further, the precipitating event leading to the plaintiff's fall (the loss of balance) was caused by the installation of unstable formwork by Summit. Summit had allowed the plaintiff and Vahid to work on the formwork platform whilst it was in that state. Its employees left the platform whilst it was in that state in full knowledge the plaintiff and Vahid were continuing to work on it.
The open penetration through which the plaintiff fell had below it multiple steel reinforcing bars which created the significant risk of impalement if a worker was to fall through it. It was Summit's conduct of creating and leaving open the penetrations in the hours before the plaintiff's accident which directly led to the plaintiff's injury.
The plaintiff's employer fundamentally failed in two respects. The plaintiff was not given proper directions, instruction and/or training at the time of commencement of his employment. That failing was exacerbated by the failure of the plaintiff's supervisor to give specific direction and instruction on site on the day of the accident whilst working around open and unprotected penetrations.
I find that the most culpable is Summit, followed by Toplace and the plaintiff's employer. In all the circumstances I find the apportionment of liability as follows: 1. Toplace - 35% 2. Summit - 45% 3. Ramsay - 20%

[28]

Hana Khouri

Mrs Khouri was born on 1 September 1960 and at the time of her son's accident was aged 57 years. Mrs Khouri is now aged 62 years.
Mrs Khouri retired in 2014 or 2015, having worked in the Australian Taxation Office for many years. In evidence in chief Mrs Khouri stated that she suffered minor injuries in a motor vehicle accident in 2006. However, it is apparent from documents tendered by Summit (Ex D2C) that the accident occurred in December 2004. Mrs Khouri claimed various injuries arising from that accident including closed head injury, injury to the neck, back, both shoulders, both knees and chest. The claim was settled in August 2008 for the sum of $120,000 inclusive of costs.
At the time of Michael's accident, Mrs Khouri was living with her husband, daughter and Michael. The home is three bedrooms with a large yard and two living rooms. At the time of the accident, the plaintiff's husband had retired from employment and had a number of medical issues. Her daughter had just finished a degree in psychology and was not working.
Mrs Khouri recalls that on the day of the accident she was contacted by someone and advised that Michael had been involved in an accident. She drove directly to the hospital and was present when Michael arrived in the ambulance. Due to his condition, she was not able to speak to him other than initial greetings. She was unaware of the full extent of Michael's injuries other than being aware of a steel rod being in his leg.
Later that night she was eventually able to speak to Michael when he was transferred to the ward following surgery. Mrs Khouri returned to the hospital the next morning and was present during the medical review. She observed Michael to be in great discomfort; he seemed very distressed and frightened with his leg in a large cast. When giving this evidence Mrs Khouri became very emotional and needed to pause for a period prior to resuming her evidence. Mrs Khouri would stay at the hospital from early morning until late in the evening until he was discharged in a moon boot and on crutches. Over the following month, Mrs Khouri essentially took care of Michael on a full-time basis in circumstances where he was relatively immobile. The nurse also attended every day to change dressings.
Over the months thereafter Michael became more mobile although she observed him during this period to be very insecure, frightened and afraid. Whilst as a mother she was focused on caring for her son, she also felt very distressed during this period. In December 2018 Mrs Khouri commenced seeing a psychologist and by this stage Michael had been on a return to work program. Mrs Khouri described significant changes in the family dynamic. She commenced assuming responsibility for the household duties previously performed by Michael.
Prior to seeing the psychologist, Mrs Khouri had been regularly reviewed by her general practitioner although this was often in the context of attending with Michael for his appointments. In March 2019 Mrs Khouri was reviewed by a psychologist in circumstances where she was feeling considerably stressed following Michael being away for a number of days on a retreat with the church youth club. This was the first time she had been separated from him since the accident. She suffered an anxiety attack whilst with the psychologist and passed out. An ambulance attended and she was transported to St George Hospital where she was reviewed and later discharged. Mrs Khouri continues to see the psychologist, Eleni Michael, although the records of the psychologist reveal that the attendances are becoming less regular.
Mrs Khouri believed that the family had been impacted significantly and that they have become more withdrawn.
Mrs Khouri describes her sleep as being very poor since the accident. Her energy levels have reduced, and she is not as social as before. She has not returned to some of her pre accident leisure activities including running, riding a bike and aerobics. However, she continues her early morning walk to "clear her head" and get ready for the day. Mrs Khouri obtains some assistance from her daughter with domestic tasks such as the laundry. She had engaged a cleaner in the initial period whilst caring for Michael.
The extent of the plaintiff's distress was evident at the commencement of cross examination by counsel for Toplace. Mrs Khouri was inadvertently asked questions in respect to an alleged pedestrian accident in March 2019. When shown the hospital notes arising from an alleged admission, it became apparent that the clinical notes related to some other person. Mrs Khouri became so distressed that she was unable to continue, and the court adjourned for a short period.
The gardening had been neglected since Michael's accident although she acknowledged that she continued to do some gardening as it made her feel calm and was therapeutic.
Mrs Khouri agreed that she had been prescribed Valium by her general practitioner although had only filled one prescription for 50 tablets. She continued to take the tablets although not on a daily basis. Besides Valium she had not taken any other medications and was unsure whether she would take medications in the future if recommended. However, Mrs Khouri expressed reluctance to take any medication prescribed by a psychiatrist in circumstances where she been told of side-effects by her general practitioner and pharmacist. Mrs Khouri agreed that she would see a psychiatrist in the future if it was considered necessary and recommended. Further she would reconsider using medication if that was recommended by a psychiatrist.
Mrs Khouri was cross-examined by counsel for Summit on the clinical notes produced by her psychologist. She agreed that the sessions became less regular in late 2019. Further, according to the clinical notes, the plaintiff's last session with the psychologist was in October 2019 before returning in May 2021. Mrs Khouri at that time experienced an exacerbation of her symptoms following Michael's admission for a hernia procedure. Mrs Khouri denied that she had not seen the psychologist during the intervening period as she was able to care for herself and did not need psychological support.
Counsel for Summit cross-examined Mrs Khouri in respect to the motor vehicle accident in 2004 and that she had claimed various injuries arising from that accident. She agreed that as a consequence of that accident she experienced stress and anxiety which was still present in September 2007 when she made a statement in support of that claim.
Mrs Khouri was an impressive witness who was prepared to make appropriate concessions. She was clearly emotional at various times whilst giving evidence, consistent with the agreed position of the psychiatrists that Mrs Khouri suffers an ongoing psychiatric disorder as a consequence of the accident. It is evident from her evidence, and the manner in which it was given, that she continues to labour under a significant psychological impairment. This was evident from the various occasions where Mrs Khouri became distressed whilst giving evidence.

[29]

The medical evidence

Mrs Khouri was initially seen by her general practitioner and later referred to Eleni Michael, psychologist in late 2018. Mrs Khouri reported symptoms associated with the ruminating of negative thoughts, panic and low mood precipitated by her son's injury. She denied thoughts of self-harm and/or suicide at the time of treatment and denied any mental health history.
On 12 March 2019, in her fifth consultation with the psychologist, Mrs Khouri experienced an episode whilst discussing her own trauma related to her son's injury.
Attending ambulance officers reported that Mrs Khouri was discussing a traumatic event that happened with her son nine months prior at a psychologist session and became considerably distressed, delusional, irrational and requesting to speak to her son. The paramedics further reported that Mrs Khouri became "inconsolable". On scene paramedics assessed Mrs Khouri with a Glasgow Coma Score of 14, given her significant emotional distress and she was transferred to St George Hospital.
According to the clinical notes from the hospital, Mrs Khouri had been brought in by ambulance from the medical centre following a psychologist's session. She had been seeing the psychologist fortnightly since December in relation to post-traumatic stress disorder and family stressors. On the particular day, Mrs Khouri had described a "heavy" session and recalled being emotional and crying. There was then a period where she was unable to recall what happened next. She then recalled the doctor and a nurse checking her blood pressure and aware that she was in a medical centre downstairs from the psychologist room. She was unsure how she got there and what had happened although she could recall hearing the psychologist calling an ambulance. She was subsequently able to communicate with her son enroute to the hospital. Mrs Khouri was subsequently discharged following various investigations which revealed no abnormality.
According to a report from Eleni Michael to the general practitioner dated 12 May 2019, Mrs Khouri was treated with supportive psychotherapy adopting cognitive behavioural acceptance and commitment therapy. She was instructed in anxiety management skills including breathing and mindfulness techniques. Further, identifying and challenging cognitive distortions and education on applying self-talk was discussed. Mrs Khouri had reported finding the treatment helpful and had commenced applying the psychological strategies learnt during therapy and was coping better with her situation. However, the psychologist made the following further observations: "It is my opinion that Mrs Khouri's psychological intervention is only in its preliminary stages as she will need more time to develop skills to assist in managing and overcoming her symptoms"
It is apparent that Mrs Khouri returned to the psychologist for further treatment in 2021 following the exacerbation of her symptoms when the plaintiff was admitted for surgery.
Mrs Khouri was assessed at the request of her instructing solicitors by Dr Frank Chow, psychiatrist on 15 June 2021. Mrs Khouri reported that she was very traumatised from what had happened to her son. She had been blaming herself recurrently for the fact that he could have died on the day of the accident. She described it as being "torture" to see her son suffering. She found it difficult to talk about her son's injury, so she avoided talking about it most of the time.
Mrs Khouri reported that she suffered from recurrent anxiety attacks and there were occasions where an ambulance was called. The last hospital presentation was on Easter Monday of 2021.
Mrs Khouri reported remaining depressed and was easily teary and emotional. She had no energy, was sleeping poorly and had lost weight. She felt she was getting worse. She experienced recurrent flashbacks and nightmares, especially of the scene when she got the phone call informing her that her son was in hospital. Mrs Khouri reported ongoing avoidant behaviours. She stayed at home and was now very unsocial. There were ongoing triggers of psychological symptoms especially with her son's ongoing injury and disability. Mrs Khouri reported having ongoing mild anxiety attacks on a daily basis. She was anxious and distressed when talking about her son's injury, especially with the need to talk about it at the medicolegal assessment. She reported recurrent "death wishes" although was not actively suicidal. There were ongoing feelings of guilt, worthlessness, and hopelessness. She felt very "drained" but had to keep going for her children.
On mental state examination, Mrs Khouri was cooperative although anxious, distressed, and teary recurrently during the assessment. Her affect was labile and teary. Her mood was low and anxious.
Dr Chow diagnosed Mrs Khouri as suffering post-traumatic stress disorder, major depressive disorder, and panic disorder. She would need ongoing psychological and psychiatric treatment and should start engaging with a psychiatrist and consider commencing psychotropic medications to relieve her symptoms. The prognosis of her psychiatric conditions was likely to be ongoing due to the ongoing nature of her son's injury. Dr Chow confirmed the plaintiff's ongoing depressive symptoms, avoidance behaviour, poor concentration, recurrent panic attacks and anxiety symptoms which limited her ability to manage domestic chores, day-to-day living activities, recreational activities, and her role as a carer for her son. She was only able to travel out of home for short periods.
On 29 September 2021, Mrs Khouri was reviewed by Dr Doran Samuell, psychiatrist at the request of Toplace.
The plaintiff reported that her sleep hours were varied. In a typical week she would have two to three good nights. She was aware of "stressing" about her son's condition when she went to bed. During the day time she thought about his future and his life, and it made her feel traumatised. Mrs Khouri told Dr Samuell that from the time she received the phone call about her son's accident she continued to replay that moment "over and over".
When describing the impact on her son she became tearful, and her trauma was regularly triggered by his condition. Mrs Khoury reported that appetite was not good, and she had lost about half a kilogram every fortnight over the previous six months. She described her mood as being "very moody and edgy" and was not enjoying anything. Objectively Mrs Khouri's concentration "equivocated", she reported losing concentration from time to time and would get confused by questions. She reported getting "drained and weak" when thinking of the trauma. Mrs Khouri also reported experiencing panic attacks, the first occurring in early 2019 when her son went on retreat. The second occurred in Easter 2021 when her son was admitted for a hernia operation. Seeing her son "unwell again" caused flashbacks. She was shaky, nauseous, had diarrhoea, and experienced pain in her left arm. She thought she was having a heart attack.
Mrs Khouri reported that her mental health difficulties commenced "from day one", experiencing emotional distress, fearfulness and worry that her son could have died. She described her children "as her life".
Dr Samuell noted that the plaintiff was frequently tearful during the assessment. Her affect was intense, reactive, and consistent with her narrative. She looked anxious and distressed. Further her cognitive functioning was possibly suboptimal due to her concentration. Dr Samuell considered that "the argument for post-traumatic stress disorder was stronger than that for an adjustment disorder". Having read the report of Dr Chow, he agreed with the diagnosis of post-traumatic stress disorder and "a parsimonious approach will see the symptoms of depression and panic within the framework of a post-traumatic stress disorder". It is apparent that Dr Samuell was largely in agreement with the opinion of Dr Chow. Dr Samuel concluded: "In summary, Mrs Khouri had significant mental health difficulties following her son's accident. It was also noted that that there was a pre-existing history of depression and anxiety, as well as a somatoform disorder prior to the subject accident. One could reasonably infer from the contemporaneous records that she was a psychologically vulnerable individual prior to her son's accident."
However, Dr Samuell accepted that there was no evidence that she was mentally ill prior to her son's accident, although she was at a "higher risk" for a mental health condition compared with a person who did not have a mental health history.
The psychiatrists participated in a conclave and provided a joint report dated 24 January 2023. The psychiatrists agreed that the plaintiff suffered from a post-traumatic stress disorder as a consequence of the accident; the onset of the disorder was soon after the accident. The psychiatrists agreed that it was reasonable for Mrs Khouri to consult with a psychologist and psychiatrist, and it was necessary to do so. Further it was agreed that treatment for her post-traumatic stress disorder could provide some alleviation to her symptoms. The psychiatrists agreed that the symptoms had now been present for several years and as such there would be ongoing low level symptoms on an indefinite basis. The prognosis was somewhat dependent on Mrs Khouri's decision not to engage with optimal treatment.

[32]

Past domestic assistance

Mrs Khouri claims past domestic assistance of seven hours per week from March 2019 to date. The defendants contend that any gratuitous assistance would not exceed the threshold of six hours per week for a period of at least six consecutive months, as required by s 15 of the CLA. As the defendants correctly submit, the plaintiff bears the onus of establishing there was a reasonable need for the services to be provided, the need arose because of the injuries to which the damages relate, and the services would not have been provided but for the injury.
Mrs Khouri's evidence in respect to domestic assistance was somewhat imprecise. She acknowledged that she continues to do "most of the things" as she feels she has the responsibility to do so as a mother. More specifically, Mrs Khouri gave evidence that she is not doing the laundry "as much" and she now obtains assistance from her daughter. She obtains such assistance a couple of days a week. The garden is now being neglected. She does not do the spring cleaning as much as prior to the accident.
The plaintiff was assessed by an occupational therapist at the request of her solicitors in March 2021 who assessed the plaintiff's past domestic assistance provided on a gratuitous basis to be approximately 19 hours per week following her initial anxiety attack in March 2019. Thereafter the occupational therapist assessed Mrs Khouri's ongoing assistance at approximately seven hours per week. The plaintiff was assessed by an occupational therapist on behalf of Toplace who assessed 14.5 hours for one week in March 2019 and thereafter one hour per week apart from a further acute anxiety attack in April 2021. The conclave report by the occupational therapists generally adhere to the opinions contained in their primary reports.
On all the evidence, I am not satisfied that the plaintiff has received past gratuitous assistance that exceeds the threshold of six hours per week for a continuous period of six months, and therefore make no award in respect of past gratuitous assistance.
Whilst the statement of particulars pleaded past domestic assistance provided on a commercial basis from time to time, no such claim was pressed.

[34]

Does s 30(4) of the CLA have the effect of reducing Hana Khouri's damages?

As noted above, it is the agreed position between the parties that the effect of s 151Z(2)(c) of the WCA is to reduce the plaintiff's damages to the extent of the employer's liability. The first and second defendants contend that Mrs Khouri's damages should similarly be reduced by reason of the combined effect of s 30(4) of the CLA and s 151Z(2)(c) of the WCA.
Section 30 of the CLA provides as follows: "30 Limitation on recovery for pure mental harm arising from shock (1) This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in peril by the act or omission of the defendant. (2) The plaintiff is not entitled to recover damages for pure mental harm unless - (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b) the plaintiff is a close member of the family of the victim. (3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim. (4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law. (5) In this section - close member of the family of a victim means - (a) a parent of the victim or other person with parental responsibility for the victim, or (b) the spouse or partner of the victim, or (c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or (d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim. spouse or partner means - (a) the person to whom the victim is legally married (including the husband or wife of the victim), or (b) a de facto partner, but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify." (emphasis added)
The plaintiff in the present claim is Mrs Khouri, and the victim is Michael Khouri. The defendants contend that given the victim's damages recoverable from the defendants are restricted by operation of s 151Z(2)(c), Mrs Khouri's damages should be restricted to the same extent by operation of s 30(4). The defendants submit that the legislative intention of s 30 of the CLA is that a bystander or close family member should have no better or greater claim against the defendants than the victim would have.
The plaintiff argues that the WCA is structured so as to provide a regime for compensation to injured workers. In this context, s 151Z(2)(c) was never intended to limit the damages recoverable by a non-worker, and in the circumstances the section is not applicable to Mrs Khouri's claim.
The principles relating to statutory interpretation are well-settled. In SZTAL v Minister for Immigration and Border Protection and Anor [2017] HCA 34; (2017) 262 CLR 362, the plurality (Kiefel CJ, Nettle and Gordon JJ) observed at [14]: "The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." (citations omitted)
Accordingly, it is firstly necessary to consider the words of the provision itself: R v A2 [2019] HCA 35; (2019) 269 CLR 507 at [32] (Kiefel CJ and Keane J). In considering the text, regard will be had to its context and purpose.
Section 30(4) provides that no damages are to be awarded to the plaintiff if the recovery of damages from the defendant by, in this case, the victim, would be prevented by any other written or unwritten law. The effect of s. 151Z(2)(c) in the present case is to reduce the damages otherwise recoverable from the defendants by Michael Khoury to the extent of the employer's liability as a joint tortfeasor. Whilst a plain reading of the sections suggests that one prevents the recovery of damages altogether, whilst the other merely reduces the amount recoverable, as the defendants submit: "Section 151Z(2)(c) of the WCA prevents the recovery of damages by Mr Khouri against Toplace, and Summit in respect to the proportion of Mr Khouri's damages would, but for part 5 of the WCA, be attributed to the negligence of his employer, Ramsay." (Emphasis added)
To the extent there is any ambiguity, the context and purpose of s. 30 is consistent with the interpretation contended for by the defendants. The section imposes limitations on the recovery of damages for pure mental harm arising from nervous shock. This includes limiting the class of persons who are entitled to recover damages for pure mental harm to bystanders and close family members of the victim. Significantly, the section further limits the damages recoverable by the plaintiff to the extent that any such damages are to be reduced in the same proportion as any reduction in damages that may be recoverable from the defendant by the victim on the basis of the contributory negligence of the victim.
I accept the defendants' submission that the legislative intent of the s 30, and more particularly ss 30(4), is that a close family member such as Mrs Khouri should have no better or greater claim against the defendant than her son, as the victim, would have.
It in the circumstances, I am satisfied that the combined effect of s 30(4) of the CLA and s 151Z(2)(c) of the WCA is to reduce Mrs Khouri's damages to account for the employer's liability. Accordingly, Mrs Khouri's damages are assessed as follows: Non-economic loss $211,500 Out of pocket expenses (past) $3,139.78 Out of pocket expenses (future treatment) $25,000 Future domestic assistance $30,000 Future occupational therapy $2,500 Total $272,139.78 Less 20% reduction (s 151Z(2)(c)) $54,427.96 Damages recoverable $217,711.82

Ramsay Surveyors Pty Ltd v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others; Khouri v Toplace Pty Ltd & Others

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