Mr Allison could not recall if there was any connection between this reference and the reference to the ramp in the notes made of the inspection on 12 November.
90 The probability is that Mr Bayer telephoned WorkCover to lodge a complaint concerning the absence of scaffolding on the south side of the site where work was being done on the decking above the basement level. This is consistent with the complaint report form and accords with Mr Bayer's evidence of the issue that had caused him concern. The reference to the advice to Mr Negro to assess the access to the site and to take necessary remedial action is likely to have been a reference to this complaint.
91 Mr Allison recalled a ramp at the site, but not an access ramp of the description of that given by the plaintiff. If there had been a ramp of this description at the site on 12 November he would have noted it and probably said something about it. There was, of course, time for some person to have removed the ramp between 8 and 12 November.
92 David Carmody gave evidence in Lecan's case. Mr Carmody now lives in New Zealand where he is undertaking fulltime studies in physical education. He was employed by Lecan as the junior foreman at the site in 2001. He started his apprenticeship in the building industry in 1994. Prior to commencing with Lecan around October 2001 Mr Carmody had worked as junior foreman under the supervision of David Hermann on another development.
93 David Carmody was an impressive witness and I accepted him as truthful and accurate. He was independent; he has no current association with Lecan or persons associated with it and does not appear to see his future in the construction industry. If anything, Mr Carmody had reasons for entertaining some resentment of his treatment at Lecan. He was laid off not long after these events. He was present during the industrial dispute at the site on 6 November and considered that Lecan had provided inadequate support to him and Mr Hermann in dealing with a volatile situation. While it was Mr Carmody's evidence that persons associated with the plaintiff's firm had engaged in ugly behaviour on 6 November, he did not present as hostile to the plaintiff.
94 Mr Carmody did not recall building a plywood ramp at the site. He had no recall of seeing any plywood ramps at the site. He remembered that the plaintiff had been working at the site. The only incident that he recalled involving the plaintiff at the site was the lockout on 6 November. He had no recall of administering first aid to the plaintiff in November 2001. He was not aware of any claim that the plaintiff had suffered an injury at the site. He was first made aware of this when he was spoken to by Lecan's solicitor.
95 Mr Carmody was laid off by Lecan about two weeks after 6 November. Sometime after this he was working with David Hermann at another site in the eastern suburbs. The plaintiff was working at this site and Mr Carmody did not observe anything apparently wrong with him. Mr Carmody was a bit surprised when he turned up at this site and saw the plaintiff there. The plaintiff had no recall of seeing Mr Carmody after 8 November 2001. The probability is that he did see him in the circumstances that Mr Carmody described.
96 In cross-examination Mr Carmody was asked:
Q. Do you remember them, in fact the stage of the work reaching or the work reaching that stage, they had to get off the scaffold onto the concrete slab of level 2?
A. No, I don't.
Q. You don't remember that?
A. No, I don't.
Q. You see, that was via a ramp, wasn't it?
A. As I said, I don't recall.
Q. So if I was to suggest to you that it was indeed via a plywood ramp, you would say, "I just don't remember one way or the other"?
A. That's right.
Q. If I was to suggest to you that in fact you were seen putting that ramp into position, you wouldn't disagree with that either?
A. Well, I don't remember, yes (T 162.32-52).
97 Mr Carmody maintained in cross-examination that he had no memory of the plaintiff having an accident at the site. He did not remember the plaintiff being absent from the site after 8 November. The cross-examination continued:
Q. You don't remember bringing some ice to him when he fell?
A. No, I don't.
Q. That may have happened, it is just in the turmoil of this site you don't remember it, is that right?
A. Yes.
Q. It must have …
TORRINGTON: Might the witness be allowed to answer. I don't know that the answer was completed.
HENNESSY: Q. Had you finished your answer?
A. I believe that - my ipso memory, if someone is falling on a ramp and severely injuring themselves, I would remember, but a lot of this other stuff, in regards to the incident with the site officer, I remember that quite clearly. I believe if someone slipped and fell and for whatever reason they were hospitalised or had to go away from the site, I believe I would remember that. (T 163.25-45).
98 Mr Carmody said that he had not been the First Aid Officer on the site. Lecan had wanted him to undertake his First Aid course, but he had not done so at the time. Nonetheless, he volunteered that it was not in his nature, should a person suffer injury, to wait until the safety officer arrived. If he had been able to render assistance he would have done so regardless of his qualifications and position on the site.
99 Mr Carmody acknowledged that quite possibly it would have been part of his duties to build an access ramp at the site had one been required. It was suggested to him that assuming a drop to the slab of 1 to 1.2 metres he would have considered a 1.8 plywood board with fillets attached to the upper surface to be a reasonably safe means of bridging the gap. Mr Carmody responded in this way:
I would be personally calling about the scaffold and fix the scaffold. If it stepped down that big I would normally build a platform and I would do what they call a hop-up, which is clipped onto the standards, and then the hop-up put in which creates like another step. How high did you say?
Q. That is in the ideal world, you see, but what I am asking you about …
TORRINGTON: I think the witness was seeking clarification.
HENNESSY: Q. 1 to 1.2 metres, that is pretty high, that seems …
WITNESS: A. I have absolutely no recollection of a ramp like that on that job, in fact with those descriptions I could almost say I believe that ramp did not exist on that job. I can't remember (T 167-168).
100 In Mr Hennessey's submission, the suggested inconsistencies in the description of the accident recorded in the various medical reports did not tell against an acceptance that the accident occurred in the way the plaintiff described in evidence. I consider that caution should be exercised in drawing a conclusion adverse to the plaintiff's case from the inconsistencies in the report of his history. I have already noted the inconsistency in the history obtained by Dr Vote concerning the symptoms of referred pain. I do not attach significance to the circumstance that Dr Vote recorded a history of the plaintiff loosing his footing on a loose piece of ply.
101 Of greater significance in assessing the plaintiff's claim is the contents of the Employees' Report of Injury (Exhibit E). This document was completed at the plaintiff's direction within five days of the accident, on 13 November 2001. The form makes provision for a description of the event giving rise to the injury under the heading "What happened"? The plaintiff supplied the following information:
Walking up the ramp and slipped and fell on my back.
102 In an Incident Report Form submitted to WorkCover, which is dated 26 November 2001, the plaintiff provided a more detailed account of the circumstances of his accident that is consistent with his evidence:
I was walking down the scaffolding then Lecan have put a ramp out of plywood with a few pieces of plastic fillet across when I was walking down the ramp the plastic fillet broke under my foot and gave way I fell backwards straight on my back on the corner of the scaffold and the plywood ramp.
103 It is difficult to reconcile these two accounts that were given within a fortnight of each other.