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[2026] NSWSC 1113
Supreme Court of NSW
2026-09-15
Fagan J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Stathakis v Richard Crookes Constructions Pty Ltd [2026] NSWSC 1113
Hearing dates: 24 - 27 August 2026
Date of orders: 15 September 2026
Decision date: 15 September 2026
Jurisdiction: Common Law
Before: Fagan J
Decision: (1) Verdict and judgment for the defendant on the plaintiff’s claim.
(2) Order that the plaintiff pay the defendant’s cost of the proceedings on the statement of claim.
(3) Dismiss the defendant’s cross-claim against the cross-defendant.
(4) Direct that the defendant and the cross-defendant provide to the Associate to Fagan J within seven days either a consent form of order with respect to the costs of the cross-claim or, if there is no agreed position, submissions from each of those parties as to the cost of the cross-claim.
(5) Direct that if there is an issue about the costs of the cross-claim it be determined on the papers, unless either the defendant or the cross-defendant notifies the Associate that a hearing is required.
Catchwords: NEGLIGENCE — Duty of care — Particular relationships — Duty of head contractor to employee of subcontractor — Personal injury — Damages — Where plaintiff injured by tripping over building materials after using unauthorised entry gate — Duty of care discharged — causation of ongoing pain not proven.
Legislation Cited: Civil Liability Act 2002 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35
Roads and Traffic Authority NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11
Category: Principal judgment
Parties: Dimitrios Stathakis (plaintiff)
Richard Crookes Constructions Pty Ltd (defendant)
Armor Security Pty Ltd (cross-defendant)
Representation: Counsel:
D Stathakis (self-represented) (plaintiff)
D Lloyd SC / R Perla (defendant)
D Hanna (cross-defendant)
Solicitors:
D Stathakis (self-represented) (plaintiff)
Kennedys (Australasia) Partnership (defendant)
Mills Oakley Lawyers (cross-defendant)
File Number(s): 2022/142971
Publication restriction: Nil
The site has a front boundary onto the Princes Highway, approximately 170 m long. The Highway is oriented from south-west to north-east in that part of Arncliffe. At the south-western end of the site, Townsend Lane runs off the Princes Highway in a northerly direction, at an angle of 45° to the Highway. The side boundary of the site is along Townsend Lane. From a date some months before November 2019 the Lane was closed off by a gate approximately 40 m back from the intersection with the Highway. The gate was set up across the Lane between the side boundary of the site and a commercial building opposite. The effect of this was to incorporate the area of the Lane behind the gate into the construction site.
The cross-defendant is a security company. Pursuant to a contract with the defendant, commencing from 8 November 2019 the cross-defendant provided a security guard to patrol the perimeter of the site between 5:00 pm each evening and 6:00 am the following morning. At a few minutes before 6:00 am on Thursday, 7 May 2020 the plaintiff approached the Townsend Lane gate and asked the night security guard to unlock it and admit him to the site. The guard’s vehicle was parked inside the gate and he was about to depart at the completion of his shift. The guard opened the gate and let the plaintiff through. While the gate was open the guard moved his vehicle out and the plaintiff then helped him close it again.
An unfinished building that was part of the overall development of the site had been constructed by the defendant abutting the Townsend Lane boundary. There was a vehicle entryway into that building with a ramp inside that ran down from street level to the Lower Ground Level. That Level extended right across the site and was mostly taken up with car parking spaces. Another vehicle ramp ran from the Lower Ground Level down to Basement Level 1, where there was more car parking. Basement Level 1 also extended across the whole site. A storeroom, where Grantee’s materials and the plaintiff’s personal protection equipment were kept, was situated about 25 m inside the building at the foot of the down ramp from Townsend Lane. Mr Emmanuel Filipakis, the plaintiff’s supervisor and a principal of Grantee gave evidence of that location.
The plaintiff said that the storeroom was one level further down, on Basement Level 1. The construction drawings of the lower levels of the development do not clarify which floor the storeroom was on and no photographs or other aids were tendered to resolve the conflicting evidence. I accept Mr Filipakis’ evidence on this point. He was an impressive witness on all subjects. As Grantee’s supervisor on the site he was required to meet delivery vehicles bringing paint and other materials to the site, to be held in the storeroom. From frequent attendance to oversee the transfer of goods into the storeroom he could be expected to have a good recall of the floor on which it was located.
On 7 May 2020, having gained access to the site through the Townsend Land gate as described above, the plaintiff walked through the entry way into the building at about 6:00 am. He intended to walk down the ramp to the storeroom. As he walked across a flat finished concrete surface at the top of the ramp he tripped on a sheet of light grade steel reinforcing mesh. The mesh was only a few metres from the entry gate and just inside the external wall of the building. The mesh was not lying perfectly flat and the plaintiff tripped over an edge that was turned up about 10-15 cm above the surface on which it lay.
The plaintiff was carrying a work bag in his right hand and a cup of coffee in his left hand, with a motorcycle helmet hooked over his left forearm. He fell straight forward onto his elbows. At 6:03 am the plaintiff sent a text message to Mr Filipakis stating that he had fallen and was unable to move. Mr Filipakis went to his assistance and helped him to a lunch/change room approximately 80 m away on the Ground Level. The plaintiff said he thought he would be alright and he commenced work. By 7:00 am he was in too much pain to continue. He packed up and left to consult a doctor.
By 11:42 am X-ray results were available showing that the plaintiff had fractured both elbows. The doctor referred him to hospital for a plaster cast and advised that he would be unable to work for 6-8 weeks. As explained below, the plaintiff has never worked again.
The plaintiff alleges that the defendant neglected to exercise reasonable care for his safety by failing to have the area that he was traversing for access to the site cleared of potential trip hazards, such as the mesh. The plaintiff also alleges that the defendant negligently failed to provide adequate lighting in the area where he tripped.
The defendant’s case is that at the time of the accident the Townsend Lane gate was designated for vehicle use only, to facilitate deliveries of construction materials. It alleges that all subcontractors and workers were clearly instructed to enter only by way of a designated pedestrian access off the Princes Highway. That access was located about 125 m north-east from the intersection of Townsend Lane and the Princes Highway. There were four buildings under construction along the Highway frontage. The pedestrian entry was between the third and fourth of the buildings, numbering from the Townsend Lane intersection. The pedestrian access was at Ground Level. The perimeter fence and hoarding of the site extended along the Princes Highway boundary and there was a gate in the fence at the access point.
The defendant accepts, on the authority of Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35, that as the occupier of the site it owed a duty to persons coming onto it to use reasonable care to avoid physical injury to them. In accordance with R**oads and Traffic Authority NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [18] and Tapp v Australian Bushmen*’*s Campdraft & Rodeo Association Limited (2022) 273 CLR 454; [2022] HCA 11 at [106], the defendant submits, correctly, that inquiry as to whether the defendant breached that duty must commence with identification of the risk of harm that is said to have been realised in the present case, causing injury and damage to the plaintiff. The risk was that the plaintiff, entering the site early in the morning through the Townsend Place gate and via the ramp to the Lower Ground Level, might injure himself by tripping on building materials left on the concrete floor of the entry way.
The defendant pleads that the risk was not one of which it knew or ought to have known and was therefore not foreseeable for the purposes of s 5B(1)(a) of the Civil Liability Act 2002 (NSW). The defendant alleges that it had instructed all workers that the Princes Highway gate was the only permitted pedestrian entry point and there was no occasion for the plaintiff to have walked in the area concerned. This may alternatively be analysed on the basis that, if the risk should be regarded as foreseeable, the defendant, acting reasonably, was not required to take any precaution beyond designating the Princes Highway gate as the sole pedestrian access and instructing all workers to use it exclusively: s 5B(1)(c).
The defendant also pleads that the risk of tripping over construction materials in the area in question was an obvious risk within the meaning of s 5F of the Act and that the plaintiff is presumed to have been aware of the risk by the operation of s 5G. The defendant submits that the duty of care it owed to the plaintiff did not require that it should give any warning of that obvious risk: s 5H.
The defendant also alleges that contributory negligence on the part of the plaintiff was causative of his injury and damage: ss 5R and 5S. Finally, the defendant pleads that any injury loss or damage suffered by the plaintiff resulted from negligent breach of duty on the part of Grantee, thereby engaging s 151Z of the Workers Compensation Act 1987 (NSW). If it should be established that Grantee is liable to the plaintiff in negligence, the damages recoverable by the plaintiff from the defendant would be reduced in accordance with s 151Z(2). Grantee is not a party to the proceedings and the plaintiff has not brought any separate action against it.
Critical factual questions, capable of resolving the plaintiff’s claim, are (a) whether the defendant notified its subcontractor, Grantee, that all workers attending the site were to enter only through the Princes Highway gate and (b) whether the plaintiff was so informed, either by the defendant or by Grantee.
By its cross-claim the defendant alleges that at all times from November 2019, or alternatively from at latest 17 April 2020, it instructed the cross-defendant that the Princes Highway gate was the designated pedestrian access and that the authority of the night security guard to admit workers prior to 6:00 am was limited to admitting them through that entrance. The defendant alleges that the cross-defendant breached its contract when the night security guard unlocked the Townsend Lane gate and allowed the plaintiff in by that unauthorised route. The cross-defendant disputes that it received an instruction that the Princes Highway entrance was to be the sole point through which workers could be admitted by the night guard prior to 6:00 am.
The defendant quantifies its damages caused by the cross-defendant’s alleged breach of contract in the amount of any award that the plaintiff may recover against the defendant in the principal action. In the alternative, the defendant pleads that if it should be found liable to the plaintiff in negligence, then the cross-defendant should be required to contribute, or to indemnify the defendant, on the basis that it is a tortfeasor liable to the plaintiff in respect of the same damage: s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
Mr Wesley Ward, an employee of the defendant, was site manager of the Arncliffe project from 2019 and continuing beyond the date of the plaintiff’s accident. He had worked for the defendant since 2006. He took over from a previous site manager at a time when half of the planned buildings at Arncliffe were constructed up to Level 2 or Level 3. At that time the area where a building was proposed to be built on Townsend Lane was still at the stage of below ground foundation works. Mr Ward could not recall exactly when he took over as site manager but I infer on the balance of probabilities, based on his description of the state of the works when he arrived, that he must have been there from no later than mid-2019.
In oral evidence Mr Ward said that prior to commencement of above-ground work on the Townsend Lane building, the site office, change room and lunchroom were located in portable sheds along the Townsend Lane boundary. At that time the designated pedestrian access to the site was through a gate in the perimeter fence and hoarding close to the sheds. Designation of that gate was set out in site rules first issued by the defendant to its subcontractors in October 2017. Those site rules continued to be issued and in force until they were amended when the access gate arrangements were changed, as described below.
Mr Ward said that about one or two months after he commenced as site supervisor, the defendant was ready to commence construction of the Townsend Lane building. The sole pedestrian access was then transferred to the location on the Princes Highway boundary referred to above (at [10]). The gate across Townsend Lane was thereafter utilised solely for delivery vehicle access. At the time of changing the pedestrian entry point, the site office, lunch room and change room were re-positioned to inside one of the partly constructed buildings at a location 20 m back from the Princes Highway gate. Mr Ward said that those changes occurred “months and months” before April 2020.
Mr Abuhussein, the principal of the cross-defendant, identified a photograph of the Townsend Lane gate taken on 8 November 2019. It shows that by that date the defendant had constructed the building on Townsend Lane to several stories in height. Clearly, that work would have been carried out over at least the previous two or three months. The pedestrian access must have been relocated to the Princes Highway entrance no later than August 2019.
During cross-examination by counsel for the cross-defendant Mr Ward gave answers to the effect that a revised version of the defendant’s site rules was issued, specifying the change to the gate arrangements. No such revised version was produced in evidence. Mr Ward said he was responsible for toolbox meetings that were conducted on site by the defendant. I accept that he was present at many of the meetings but I do not understand his evidence to mean that he attended all. The defendant also had on the site a dedicated safety officer. Mr Ward gave no evidence, either in written form or in oral examination, about what was said at the toolbox meetings concerning restriction of pedestrian access to the Princes Highway gate.
However, the principal of Grantee, Mr Emmanuel Filipakis, said that he attended the weekly toolbox meetings that were conducted by senior employees of the defendant, with workers employed by the defendant and subcontractors present. He also conducted his own weekly toolbox meetings with Grantee’s workers, which followed after the defendant’s meetings. Mr Filipakis said that when the access was moved to the Princes Highway gate, all workers were advised of this at the defendant’s toolbox meetings. The requirement to use the Princes Highway gate was reiterated by the defendant’s representatives at successive meetings thereafter. Mr Filipakis said that in his own separate meetings with Grantee’s workers he “reinforced” the defendant’s requirement that the Princes Highway gate be used. He said that the plaintiff attended the talks conducted by the defendant and by himself.
The effect of Mr Filipakis’ evidence is that, through him, Grantee was instructed that all its workers should enter and leave the site only through the Princes Highway gate and, further, that that was repeatedly passed on to Grantee’s employees including the plaintiff.
I accept Mr Filipakis’ evidence about the repeated oral instructions from the defendant’s representatives and from himself about using only the Princes Highway gate for site access. His evidence on that matter was confident and firm in the face of persistent challenge under the plaintiff’s questioning. I accept that toolbox meetings continued in late April and early May 2020. The surrounding probabilities make it highly likely that the meetings would have continued on and after Monday, 20 April 2020 and would have included a direction to use only the Princes Highway gate. From that date the defendant established a regime of COVID-19 screening and registration at that entry point. The efficacy of those public health precautions depended upon all workers entering there. Further detail of the screening arrangement is considered below.
Mr Filipakis said that records of Grantee’s toolbox meetings were made and were signed by those who attended. However, he said those records were given to the defendant each week and Grantee did not retain a copy. The defendant did not tender any records of either its own toolbox meetings or of Grantee’s meetings.
In cross-examination the plaintiff denied that he received any instruction at toolbox meetings that workers should only use the Princes Highway gate. He was well aware that no records of the meetings had been tendered in evidence. On several occasions he replied to questions on this subject with a question of his own, such as the following:
Where is that recorded, sir?
Is that - is there any record in the---
Are there any records of that?
Is there any record of that toolbox meeting in the court book?
I reject the plaintiff’s evidence that he was not instructed about entering the site only via the Princes Highway gate over the months leading up to May 2020. In giving evidence the plaintiff was astute to the interests of his own case. With knowledge that no toolbox meeting records had been tendered, he was emboldened to deny that he and other workers were consistently instructed to enter the site only from Princes Highway.
The plaintiff said in oral evidence that there were “multiple gate entrances” to the site, not just the Townsend Lane and Princes Highway gates. I do not accept that evidence. It was convincingly contradicted by both Mr Ward and Mr Filipakis. There is before the Court no photographic or other documentary evidence of any other entry.
The plaintiff cross-examined Mr Filipakis to suggest that toolbox meetings were not held in late April and early May 2020 because the workers were required to observe social distancing rules during the COVID-19 public health crisis. Mr Filipakis rejected that proposition. He said that, as necessary, the requirement of social distancing was met by convening the toolbox meetings on the Basement 1 level where the attendees could spread out. When the plaintiff gave evidence he denied that he was told at the toolbox meetings of either the defendant or Grantee that the Princes Highway gate had to be used, he denied that any toolbox meetings took place from the middle of April 2020 until the date of his accident and he denied that he knew that worker pedestrian access through the Townsend Lane gate was prohibited.
Inconsistently with his other evidence, when it was put to the plaintiff that the access to the site changed he answered: “And I obliged by that”. He answered the next question as follows:
Q. And the change, that is, where you should access the site from, was covered off in the Richard Crookes toolbox talks, correct?
A. You have to take account that back in 2020 there were measures, COVID rule measures. Everything was strict. We had to use Princes Highway gate and the security guard would take our temperature and we’d sign in, and everyone had to go through that. But in May, there weren’t any rules. The COVID rules - restrictions were eased and everybody - everything was safe to go from whichever gate.
Q. The three things you just told his Honour about, one, only through Princes Highway; two, temperature testing; and three, signing in. Do you remember that?
A. At 7 May there were none of that.
Q. You just told his Honour--
[…]
Q. --that sometime in April you were given those three instructions by your employer?
A. And then the restrictions ended in May.
Q. The question I put to you is there was no time that your employer or anyone else said to you after those instructions that you were allowed to access this site through any entrance other than the Princes Highway?
A. And there isn’t any records that prove otherwise.
The last quoted answer does the plaintiff’s case no good. The question gave him the opportunity to say whether, at some time prior to 7 May 2020, he received from Mr Filipakis or someone else a countermand to the recent instruction that he should enter only through the Princes Highway gate where arrangements had been made for temperature testing and registration. His answer did not assert any such countermand. He did not respond to the question at all. Instead he referred to the absence of any contemporaneous record that the instruction remained current into May.
Contrary to the plaintiff’s evidence, I am satisfied from the evidence of Mr Ward that the regime of COVID-19 testing commenced in 20 April 2020 and continued beyond 7 May 2020 and for at least some weeks. I am satisfied that throughout that period toolbox meetings of both the defendant and Grantee continued, the instruction to use only the Princes Highway gate remained current and was not retracted and the plaintiff was aware of that position. When he entered through the Townsend Lane gate on 7 May 2020 he knew that he was contravening an explicit site instruction of his employer and of the head contractor.
To the observation of both Mr Ward and Mr Filipakis, all workers would enter and exit through the Princes Highway gate once it had been designated. Both of them generally arrived on site after 6:00 am. The plaintiff gave evidence that he routinely entered the site and departed through the Townsend Lane gate. Accepting that to be so, I am not satisfied that either Mr Ward or Mr Filipakis was aware that he was using that route, in disobedience of the repeated instruction.
Mr Ward said that the site working hours were from 7:00 am to 6:00 pm Monday to Friday and from 8:00 am to 3:30 pm on Saturday. Compliance with those hours was a condition of the Development Approval for the site. The defendant’s instructions to subcontractors and to workers was that they could attend the lunch room and change room located 20 m inside the Princes Highway gate before 7:00 am on weekdays if they wished but they could not commence work before that hour.
If the plaintiff had entered via the Princes Highway gate on the day of his accident, he could have gained access to the Lower Ground Level by walking back through the site in a south-westerly direction, then turning right to a set of fire stairs that communicated with both the Lower Ground Level and Basement Level 1. If he descended the fire stairs he would arrive on the Lower Ground floor close to Grantee’s storeroom. The total distance from the gate back to the fire stairs was approximately 90 m. An alternative set of fire stairs to the lower levels was located on the north-eastern edge of the site, adjacent to the lunch/change room. However, to use those fire stairs other than entering the site off the Princes Highway the plaintiff would have to turn right at the lunch/change room and go 40 m out of his way. He would then have to double back for the same distance when he reached the level on which the storeroom was located.
The plaintiff agreed in cross-examination that if he had entered by the Princes Highway gate, in order to proceed to the storeroom he would not have needed to walk in the area where he tripped.
In oral evidence the plaintiff said that on the morning of 7 May 2020 he rode a motorcycle to the site and parked it in Hattersley Street near its intersection with the Princes Highway. Hattersley Street is the next cross street to the south west after Townsend Lane. In a text message sent by the plaintiff to Mr Filipakis at 2:48 pm on the day of the accident he gave the following reason for having asked the security guard to let him in by the Townsend Lane gate:
so I can go in instead of walking up n wait on the side of the road next to the traffic.
A Public Health Order was issued on 30 March 2020 to address the risk of COVID-19 viral infection. The Order directed that a person may not, without reasonable excuse, leave the person’s place of residence. By Schedule 1 it was provided that reasonable excuse would include travelling to a place of work if the person could not work from his or her residence. The order prohibited gatherings in any public place of more than two persons. Schedule 2 created an exception for a gathering at a construction site if necessary for the normal operation of the site.
In response to the Public Health Order and associated advice to the public from the Department of Health, on Friday, 17 April 2020 at 10:39 am the defendant’s Project Director for the Arncliffe site, Mr Ayoub, sent an email to Mr Ward and others containing the following:
Updated procedure for infrared thermometer testing.
Please confirm that we have masks on site and ensure this procedure is adhered to as we are starting this on Monday Morning.
Please carry out the calibration today and try it on site on couple of our guys today to ensure it is working properly and ensure on Monday morning we are engaged with the security person at the initial testing to ensure he/she know how to operate it correctly.
All personnel entering the site from Monday morning, must enter from one entry and traffic controllers to direct people up the site entry dedicated for entering the site.
Registry is to be kept at site entry for names, company the entering person work for and date.
Any issue or improvement to this, let us discuss.
Please issue this procedure to the security company and ensure that they provide mask to their guy.
Also, please issue this procedure to all the subcontractors and advise them that testing will commence as of next Monday morning so they, their guys and their suppliers are aware of this procedure.
As discussed please arrange for 1 security guard to be on site this coming Monday the 20 April 2020 from 6.00am to 2.00pm Monday to Friday and Saturday 6.00am to 2.00pm until advised to cease. The agreed rate is $30.00 per hour flat rate.
As discussed his duties will be taking workers temperature as they enter the site (one designated point of entry into the site) between 06:00am to 10:00am daily. Other duties include filling in forms and registers after 10.00am enforcing social distancing is maintained throughout the site until 2.00pm.
Wes and or Steve will brief your guard on the necessary forms and site registers that needs to be filled in and maintained i.e. date, company name, employee and time in for anyone entering the site.
Should you have any queries please do not hesitate to contact the undersigned. Also attached for your review is our procedure for Infrared Thermometer testing that needs to be followed.
On the same day Mr Abuhussein acknowledged the arrangements and stated that the guard would liaise with Mr Ward or another employee of the defendant if anything further was required. He sought clarification whether the defendant would supply the thermometer, which Mr Borelli confirmed.
The night guard who performed perimeter patrols continued with his established routine, departing the site at 6:00 am. A second employee of the cross-claimant attended from 6:00 am to perform the COVID-19 marshal duties. That continued until 30 April 2020. From 1 May 2020 the defendant’s personnel took over temperature testing and ensuring that persons entering the site registered their attendance. Sometimes Mr Ward attended to that himself, sometimes it was done by the defendant’s safety officer and/or one of the defendant’s foremen. Mr Ward said the defendant continued with the regime of registration and taking the body temperature of each worker for at least a few weeks.
The defendant had engaged the cross-defendant to provide the night security guard by an email exchange between Mr Borelli and Mr Abuhussein in late 2019. On 30 October 2019 Mr Abuhussein provided a quote of hourly rates for either a guard or a dog handler. On Friday, 8 November 2018 Mr Borelli requested that a night guard be provided each evening from 5:00 pm to 6:00 am the following morning, commencing that day. In Mr Borelli’s email he asked that the guard contact Mr Ward “to arrange all inductions this afternoon”.
There must have taken place at least some informal meeting between the guard and either Mr Ward or some other representative of the defendant, for the purpose of the guard being shown the features of the site – or at least its perimeter. However there is no evidence of the detail of any such introduction to the assignment. In particular there is no evidence of whatever was said between the defendant’s representative and the cross-defendant’s guard.
The cross-defendant relies upon an evidentiary statement of Mr Abuhussein. He also gave oral evidence. The statement includes the following with respect to the initial engagement of his company for the provision of a night guard:
13 Armor Security was not provided with a copy of any written site rules for the site. I was not asked to attend a site-specific induction for the site. I am not aware of any of the guards provided by me being provided with site-specific induction by [the defendant] which included providing a copy of any written site rules for the site.
14 I was not provided with any site plan, pedestrian management plan, or written instruction identifying authorised pedestrian access points, or any of the guards provided by me being provided with any of these documents either.
15 I was never informed, orally or in writing, that workers were prohibited from entering the site via the Wardell Street gate, or that the Wardell Street gate was intended for vehicle access only.
Wardell Street runs along the back of the site, parallel to the Princes Highway, and intersects with the end of Townsend Lane. Mr Abuhussein’s reference to “the Wardell Street gate” is clearly a reference to the Townsend Lane gate, which at times relevant to the plaintiff’s claim was the only gated access to the site apart from the Princes Highway pedestrian access.
In oral evidence Mr Ward said that the cross-claimant “had the site rules”. However, the defendant has not tendered any documentary record of the rules having been transmitted to the cross-claimant. Further, as earlier mentioned, there has not been tendered any version of site rules later than those of October 2017. Those rules specified that worker access was solely “via Townsend place” and they ceased to be applicable when work commenced on the building that fronted Townsend Lane, causing the pedestrian access to be relocated to the Princes Highway gate.
When Mr Ward was pressed in cross-examination about any form of notification to the cross-defendant that the workers’ access to the site was restricted to the Princes Highway entry, he gave the following evidence:
Q. But you never sent - these site rules his Honour refers to, the ones that start at page 473 of the book [being the rules dated October 2017]--
A. Yes.
Q. --you never sent those to Armor Security, did you?
A. These site rules - yeah, this is part of the induction. So every person that comes to site gets inducted and these site rules they have to read and sign off on.
Q. You didn’t do site induction for the staff - of Armor Security either, did you?
A. I didn’t, no.
Q. No. Nobody did, isn’t that the truth?
A. Not that I’m aware of.
Q. Well, you just don’t know whether anyone did, do you?
A. My safety guy would have done it, so--
[…]
HIS HONOUR
Q. You’re not able to say your safety guy--
A. I don’t, I don’t do the inductions, so I never inducted them.
[COUNSEL FOR THE CROSS-CLAIMANT]
Q. So you weren’t responsible for inductions, you weren’t responsible for toolbox meetings?
A. No, I was responsible for toolbox meetings.
Q. Right. And the security guards weren’t brought to the toolbox meetings, were they?
A. No, not that I’m aware of.
Q. In general the security guards had knocked off and gone home before work started on the premises, hadn’t they?
A. In general, yes.
Q. So by the time a toolbox meeting was held they were gone?
A. That’s a fair comment, yeah.
Q. What did you say to him? About this topic, that is, access?
A. Well, for access, the, the pedestrian gate is for pedestrians, and the other one is for the deliveries.
I assume that there may have been a change of night guard from time to time. In referring to communications with “the night guard” I take Mr Ward to mean communications with any person whom the cross-defendant allocated to that task from time to time. Accepting that Mr Ward said words to one or more of the cross-defendant’s employees to the effect of his answer quoted above, in my view that was not effective to convey that workers were not to be permitted entry on foot through the Townsend Lane gate. The words used by Mr Ward were descriptive of the functions of the respective gates but they were not apt to indicate that pedestrian access through the deliveries gate was forbidden or to specify a contractual obligation of the cross-defendant to uphold a strict division of function between the two points of access to the site.
On 19 November 2019, when the cross-defendant had been providing its night watchman service for only 11 days, Mr Abuhussein sent an email to Mr Ward and received a reply, as follows:
From Mr Abuhussein:
[Workers come] every day between 5am-6am and they don’t have keys, do you want the guard to open the gate and let them in before he leaves or no.
Reply from Mr Ward:
Yes that’s fine some of workers get here early.
As at 19 November 2019 I am satisfied that the designated pedestrian access was the one on the Princes Highway, based upon Mr Ward’s evidence that the change over of access had been in place for “months and months” before April 2020 and having regard to the photography referred to at [21] above.
Mr Ward gave evidence that he did not intend his approval for pre-6:00 am access to apply to the Townsend Lane gate, only to the pedestrian access on the Princes Highway. Mr Abuhussein said that he did not understand Mr Ward’s email of 19 November 2019 in that way because he did not know that the Princes Highway entry was the only designated access for workers. There is no evidence from which the Court could conclude that Mr Abuhussein must have understood Mr Ward’s response of 19 November 2019 in the sense that Mr Ward intended, or that objectively the reply conveyed Mr Ward’s intention so that it should have been so understood by the cross-defendant.
The defendant submits that Mr Borelli’s email of 17 April 2020, quoted at [44]-[45] above, conveyed an instruction that the only point of access for workers was to be through the Princes Highway gate and that that email was a sufficient contractual instruction to require that the cross-defendant’s night security guard should only allow pre-6:00 am access from the Princes Highway and not at Townsend Lane. In oral evidence Mr Abuhussein said that the two engagements were separate: one for a night guard up to 6:00 am, the other for a COVID-19 Marshall from 6:00 am onwards. In his view the additional arrangement for screening workers for public health purposes made no difference to the terms upon which the night security guard was to work, which included permitting pre-6:00 am entry, without restriction as to gate so far as he was aware.
The contractual meaning of the emails of 17 April 2020 is to be determined objectively, having regard to how a reasonable person in the position of Mr Abuhussein would have understood them in the context of the surrounding circumstances known to both parties. On that test, Mr Abuhussein’s interpretation, summarised above, correctly reflects the contractual effect of the communications. Accordingly, after 17 April 2020 the cross-claimant continued to provide the services of a night security guard without any contractual obligation to refuse pre-6:00 am entry through the Townsend Lane gate.
The defendant was in control of the entire building site. It derived benefit from having its various subcontractors carry out their respective trades in locations around the site, as required by the terms of their subcontracts and as directed and coordinated by the defendant. In those circumstances the defendant owed a duty to all workers to exercise reasonable care in the way it organised the site to implement a safe system of entry and safe access through the site: Leighton Contractors Pty Ltd v Fox at [20].
That duty was discharged by the adoption of three measures. First, the defendant directed all subcontractors, including Grantee, that they were to require their employees only to enter the site through the Princes Highway pedestrian gate. Secondly, the defendant informed the plaintiff directly of the requirement only to enter through the designated gate. Thirdly, the defendant took reasonable care to keep access ways between the pedestrian gate and the subcontractors’ working areas free of trip hazards. The duty did not require that the defendant exercise care to keep the vehicle access off Townsend Lane clear of potential hazards to pedestrians, in circumstances where it had taken reasonable care to ensure that that area would not be traversed on foot by workers entering the site.
If I had found the defendant liable to the plaintiff in negligence, I would not have upheld the cross-claim. I have concluded that there was no instruction given to the cross-defendant that its night guard should deny workers pre-6:00 am access through the Townsend Lane delivery gate. Hence, there was no breach of contract by the cross-defendant when its guard allowed the plaintiff in on the morning of 7 May 2020.
As to the second ground upon which the defendant claims contribution or indemnity, I am not satisfied on the balance of probabilities that the night guard, or the cross-defendant on the basis of vicarious liability, is a tortfeasor liable to the plaintiff in respect of the same damage as claimed by the plaintiff against the defendant. Neither the guard nor the cross-defendant as his employer owed a duty of care to the plaintiff with respect to the condition of the premises inside the gate. There is no evidence that the guard or the cross-defendant knew or ought to have known that there was any risk to the plaintiff that upon entering through the Townsend Lane gate he would be exposed to danger of tripping.
The plaintiff tendered medicolegal reports, mostly dating from 2022 and early 2023. They record that he suffered a fracture of the radial head of each elbow as a result of the fall. Those injuries resolved, from an orthopaedic perspective, by about October 2020. The plaintiff had been required to limit weight-bearing to his upper limbs until that time. In February 2022 an orthopaedic surgeon, Dr Stephenson, found that the plaintiff had a full range of motion in both elbows, both wrists and both shoulders.
The plaintiff suffered a low back injury more than 20 years before the accident on 7 May 2020. That earlier injury required a laminectomy, which was performed in 1997. The plaintiff was able to return to work after the laminectomy but then required spinal fusion in 2001. On examination in February 2022 the plaintiff exhibited some asymmetric loss of range of motion in his cervical spine. Dr Stephenson expressed the opinion that the plaintiff would have suffered a “sudden active extension of the neck as he fell prone on reinforcing steel mesh on a concrete floor”. The evidence does not develop the possibility that that actually occurred or that it was the cause of ongoing symptoms in the cervical spine.
Since February 2022, at the latest, the plaintiff has complained of generalised pain affecting his neck, both arms, his knees and lower limbs. In a further report of Dr Stephenson dated 4 April 2022, he quoted an opinion of a neurologist, Dr Mahoney based upon an examination of the plaintiff on 16 December 2020 and an MRI of his lumbar spine on 3 February 2022. Dr Mahoney’s opinion was that facet joint arthropathy of the lower lumbar spine appeared to represent a chronic degeneration rather than acute trauma.
The plaintiff relied upon reports of his current treating psychiatrist and psychologist. He has been diagnosed with Major Depressive Disorder, with psychotic symptoms, since 2021. The plaintiff’s psychiatric symptoms appear to be related to his ongoing generalised pain. However, none of the reports tendered in the plaintiff’s case establish on the balance of probabilities a causal relationship between the accident on 7 May 2020 and the pain condition.
In conducting his case without legal representation, the plaintiff has sorely neglected medical proof of causation of the pain and depression that he alleges have prevented him from resuming work since 2020 notwithstanding full recovery in orthopaedic and musculoskeletal terms. In circumstances where I have found against the plaintiff on liability, I will not proceed with an attempt to assess his damages on the sparse and inadequate evidence that he has tendered in that regard.
For the above reasons, the orders of the Court are as follows:
Verdict and judgment for the defendant on the plaintiff’s claim.
Order that the plaintiff pay the defendant’s cost of the proceedings on the statement of claim.
Dismiss the defendant’s cross-claim against the cross-defendant.
Direct that the defendant and the cross defendant provide to the Associate to Fagan J within seven days either a consent form of order with respect to the costs of the cross-claim or, if there is no agreed position, submissions from each of those parties as to the cost of the cross-claim.
Direct that if there is an issue about the costs of the cross-claim it be determined on the papers, unless either the defendant or the cross-defendant notifies the Associate that a hearing is required.
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Stathakis
Richard Crookes Constructions Pty Ltd