Synergy Scaffolding Services Pty Ltd v Alelaimat

Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 Brambles v Wail [2002] VSCA 150 CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 433; [2013] NSWCA 49 Dib Group Pty Ltd Trading as Hill & Co v Cole [2009] NSWCA 210 Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357 Estate of the late M T Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Frizelle v Bauer [2009] NSWCA 239 Galea v Bagtrans Pty Limited [2010] NSWCA 350 Hossain v Unity Grammar College Ltd [2019] NSWSC 1313 Humphries v Shoalhaven City Council [2012] NSWDC 216 Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Leonard v Smith (1992) 27 NSWLR 5 Murgolo v AAI Ltd (t/as AAMI) (2019) 101 NSWLR 376; [2019] NSWCA 295 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Pomare v Whyte [2019] NSWCA 317; 377 ALR 352 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28 Robinson Helicopter Co Inc v McDermott [2016] HCA 22 Scott v Davis (2000) 204 CLR 333; [2000] HCA 52 Shoalhaven City Council v Humphries [2013] NSWCA 390 Smith v Commonwealth Oil Refineries Ltd (1938) 60 CLR 141; [1938] HCA 33 South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; [2017] NSWCA 312 State of New South Wales v Gillett [2012] NSWCA 83 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 Vines v Djordjevitch (1955) 91 CLR 512; [1995] HCA 19 Vinidex Tubemakers Pty Limited v Thiess Contractors Pty Limited [2000] NSWCA 67 Watson v The Council of the City of Newcastle (1962) 106 CLR 426; [1962] HCA 6 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Category: Principal judgment Parties: Synergy Scaffolding Services Pty Ltd (Appellant) Bilal Alelaimat (1st Respondent) Workers Compensation Nominal Insurer (2nd Respondent) Representation: Counsel: DA Priestley SC/D Southwood (Appellant) D Toomey SC/D Morgan (1st Respondent) PA Rickard (2nd Respondent)

Solicitors: McCulloch & Buggy Lawyers (Appellant) Garling & Co Lawyers (1st Respondent) Moray & Agnew Lawyers (2nd Respondent) File Number(s): 2022/144781 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Civil Citation: [2022] NSWSC 536 Date of Decision: 05 May 2022 Before: Campbell J File Number(s): 2017/208752

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

HEADNOTE [This headnote is not to be read as part of the judgment] On 10 October 2012, the first respondent, Mr Bilal Alelaimat, a truck driver, was directed by the appellant, Synergy Scaffolding Services Pty Ltd ("Synergy Scaffolding"), to attend a building site in the Sydney suburb of Artarmon to collect and remove scaffolding. Upon arriving at the site, Mr Alelaimat was instructed by a member of Synergy Scaffolding to assist in dismantling the scaffolding, which had been erected to a height of three storeys. While picking up and stacking scaffolding materials in preparation for loading them onto his truck, Mr Alelaimat was struck on the back, shoulder and upper arm by a falling piece of metal scaffolding and suffered serious injuries. At the time of the incident, Mr Alelaimat was employed by DJ's Scaffolding Services Pty Ltd ("DJSS"), but his day-to-day work was directed by the Operations Manager of Synergy Scaffolding, and he wore clothing and drove trucks emblazoned with Synergy Scaffolding's name. Mr Alelaimat claimed and was paid compensation pursuant to the Workers Compensation Act 1987 (NSW). However, he did not seek legal advice until November 2013 and did not commence proceedings against Synergy Scaffolding in negligence until 10 July 2017. Mr Alelaimat ultimately relied on a pleading filed on 7 October 2020, by which he claimed damages for negligence against both Synergy Scaffolding and the second respondent, the Workers Compensation Nominal Insurer ("WCNI"), as the insurer of DJSS, which had been deregistered. Both Synergy Scaffolding and WCNI denied liability. Amongst other defences, Synergy Scaffolding pleaded that Mr Alelaimat's claim had been brought more than three years after the date on which his cause of action was discoverable, and was thus barred by the "3 year post discoverability limitation period" in s 50C of the Limitation Act 1969 (NSW). By s 50D(1), a cause of action in respect of an injury is discoverable on the first date that a person knows, or ought to know, (a) that the injury has occurred, (b) that it was caused by the fault of the defendant, and (c) that it was sufficiently serious to justifying the bringing of an action on the cause of action. Synergy Scaffolding also pleaded that any damages payable to Mr Alelaimat should be reduced under s 151Z(2)(c) of the Workers Compensation Act. That provision relevantly provides that where a worker institutes proceedings to recover damages against both employer and a third-party in respect of an injury for which workers compensation is payable, the damages recoverable by the worker from the third-party tortfeasor: "are to be reduced by the amount by which the contribution which the [third-party tortfeasor] would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable…". In addition, Synergy Scaffolding and WCNI each brought cross-claims against one another seeking statutory contribution or indemnity under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ("the 1946 Miscellaneous Provisions Act"). That provision permits contribution between tortfeasors who are liable, or who if sued would be liable, "in respect of the same damage", with contribution to be ordered in such amount as is "just and equitable having regard" to the tortfeasors' respective responsibility for the damage. WCNI also sought indemnity from Synergy Scaffolding under s 151Z(1)(d) of the Workers Compensation Act of the compensation that had previously been paid to Mr Alelaimat. Section 151Z(1) does not apply where both the employer and the third party tortfeasor are liable to pay damages. WCNI sought to rely, if necessary, in this respect on s 151Z(2)(e), which provides that, where a worker takes, or is entitled to take, proceedings for common law damages against both a third party and his or her employer in respect of an injury for which workers compensation is payable, s 151Z(1) applies "as if the worker had not been entitled to recover damages from that employer", if either (i) the worker either "does not take proceedings against that employer", or (ii) "does not accept satisfaction of the judgment against that employer". The primary judge held that Mr Alelaimat's claim against Synergy Scaffolding was not barred by the Limitation Act, upheld the claim and awarded substantial damages. The award of damages included a sum in respect of past compensation for medical expenses paid by WCNI on Mr Alelaimat's behalf, on the basis that Mr Alelaimat would be liable to repay that compensation to WCNI out of the award of damages under s 151Z(1)(b) of the Workers Compensation Act. The claim against WCNI was dismissed on the basis that DJSS had not been shown to have breached its duty of care to Mr Alelaimat. WCNI's cross-claim for the statutory indemnity under s 151Z(1)(d) was upheld, and the cross-claims were otherwise dismissed. The application of s 151Z(2)(c) and s 151Z(2)(e) did not need to be considered. Synergy Scaffolding appealed. The issues on appeal were: (i) whether Mr Alelaimat's cause of action against Synergy Scaffolding was "discoverable" more than three years prior to the date on which the proceedings were commenced, such that s 50C(1) of the Limitation Act barred his claim; (ii) whether DJSS had breached the duty of care it owed to Mr Alelaimat as his employer; (iii) if so, whether WCNI should be liable to Synergy Scaffolding for contribution, and if so, in what sum; and, if WCNI was liable to Mr Alelaimat and/or Synergy Scaffolding: (iv) whether s 151Z(2)(c) of the Workers Compensation Act applied to limit the damages recoverable by Mr Alelaimat from Synergy Scaffolding; (v) whether WCNI was entitled to the statutory indemnity under s 151Z(1)(d) of the Workers Compensation Act, including by operation of s 151Z(2)(e); and (vi) whether Mr Alelaimat was required, by s 151Z(1)(b) of the Workers Compensation Act, to repay to WCNI the past medical expenses that it had paid on his behalf, such that a sum referrable to those expenses was properly awarded as a head of damages against Synergy Scaffolding. Synergy Scaffolding did not challenge the finding that it was negligent. The Court (Simpson AJA, Meagher and Kirk JJA agreeing) held, allowing the appeal in part: As to issue (i) (application of the Limitation Act) 1. To know that an injury was "caused by the fault of the defendant" for the purposes of s 50D(1)(b) of the Limitation Act, the plaintiff need not know the capacity in which a putative defendant might be liable. It suffices that the plaintiff knows that the circumstances in which the injury occurred are such that legal liability could be established. Accordingly, Mr Alelaimat's mistaken belief that he was employed by Synergy Scaffolding, rather than DJSS, was not material to the s 50D(1)(b) inquiry: [80]. 2. The primary judge erred in concluding that Mr Alelaimat did not know, more than three years prior to bringing his claim, that his injury was caused by the fault of Synergy Scaffolding, for the purposes of s 50D(1)(b): [81]-[83]. 3. Mr Alelaimat's ignorance as to his true employer was material to whether he knew that his injury was sufficiently serious to justify the bringing of an action on the cause of action, for the purposes of s 50D(1)(c): [84]. Accordingly, the primary judge was correct in finding that Mr Alelaimat did not have the knowledge required by s 50D(1)(c): [84]-[86]. Synergy Scaffolding's Limitation Act defence was correctly rejected: [87]. 4. Consideration of the meaning of "knowledge" and the meaning of "fact" in s 50D of the Limitation Act: [63]-[74]. Vines v Djordjevitch (1955) 91 CLR 512; [1995] HCA 19; Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; Murgolo v AAI Ltd (t/as AAMI) (2019) 101 NSWLR 376; [2019] NSWCA 295; Pomare v Whyte [2019] NSWCA 317; 377 ALR 352; State of New South Wales v Gillett [2012] NSWCA 83, considered. As to issue (ii) (whether DJSS breached its duty of care to Mr Alelaimat) 1. An employer is a under a non-delegable duty to take reasonable care to provide a safe system of work for its employees: [95]. Where the employer is a labour-hire company, this duty will be breached by injury negligently inflicted by a client to whom the employer has contracted the services of the employee: [102]. It is no answer to a claim by the employee against his or her employer that the employer took what steps it could to ensure that the contracting party acted reasonably in the provision of a safe system of work, or that it did not have the opportunity to intervene to prevent the injury: [106]. Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61; TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Galea v Bagtrans Pty Limited [2010] NSWCA 350, applied. Dib Group Pty Ltd Trading as Hill and Co v Cole [2009] NSWCA 21; Estate of the late M T Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340; Atkinson v Gameco [2005] NSWCA 325; Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28, distinguished. Shoalhaven City Council v Humphries [2013] NSWCA 390, explained, distinguished. 1. Accordingly, the finding of the primary judge that Synergy Scaffolding had negligently failed to provide Mr Alelaimat with a safe system of work was sufficient to establish that DJSS was liable to Mr Alelaimat for that negligence: [109]. The primary judge erred in dismissing Mr Alelaimat's claim against DJSS: [129]. As to issue (iii) (contribution payable by WCNI to Synergy Scaffolding) 1. The onus of establishing that a tortfeasor is entitled to contribution or indemnity from another tortfeasor under s 5 of the 1946 Miscellaneous Provisions Act lies on the tortfeasor seeking to establish the entitlement: [128]. Synergy Scaffolding did not discharge its onus of establishing an entitlement to any contribution from DJSS: [149]. That DJSS was liable to Mr Alelaimat under the principles laid down in Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 was, at most, a first step on the path to determining the contribution payable between DJSS and Synergy Scaffolding: [127]-[128], [143]-[163]. As to issue (iv) (s 151Z(2)(c) of the Workers Compensation Act) 1. Expressed as an equation, the effect of s 151Z(2)(c) of the Workers Compensation Act is that, where a worker has a cause of action for damages against both employer and a third party tortfeasor, the sum of damages (D) ultimately recoverable by the plaintiff worker from the third party tortfeasor is equal to the total damages which would be recoverable from the third party tortfeasor but for the operation of s 151Z(2) (T), minus the difference between the sum that the third party tortfeasor would be entitled to recover from the employer tortfeasor as contribution under s 5 of the 1946 Miscellaneous Provisions Act but for the operation of s 151Z(2)(d) (C), and the amount of contribution that is actually recoverable under s 5 once s 151Z(2)(d) is taken into account (X): [139]-[140]. That is, D = T - (C - X), where: D = the sum of damages ultimately recoverable by the plaintiff worker from the third party tortfeasor; T = the sum of damages which would be recoverable by the plaintiff worker from the third party tortfeasor but for the operation of s 151Z(2); C = the sum that the third party tortfeasor would be entitled to recover from the employer tortfeasor as contribution under s 5 of the 1946 Miscellaneous Provisions Act but for the operation of s 151Z(2)(d); and X = the amount of contribution that is actually recoverable under s 5 of the 1946 Miscellaneous Provisions Act once s 151Z(2)(d) is taken into account. 1. Given Synergy Scaffolding did not establish that it would be just and equitable to require WCNI to make any contribution to Synergy Scaffolding, s 151Z(2)(c) does not affect the damages payable by Synergy Scaffolding. To use the language of the equation above, C and X are both zero, such that D simply equals T: [142]. As to issue (v) (indemnity under ss 151Z(1)(d) and 151Z(2)(e)) 1. Section 151Z(1) of the Workers Compensation Act does not apply, of its own force, where a worker's employer is a tortfeasor liable to pay the worker damages: [91], [169]. Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28; CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 433; [2013] NSWCA 49; Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357; South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; [2017] NSWCA 312, followed. 1. Nevertheless, s 151Z(2)(e) applies s 151Z(1) "as if" the employer was not a tortfeasor, provided that one of the two negative conditions in par (2)(e) is satisfied; that is, if the worker either (i) "does not take proceedings against that employer", or (ii) "does not accept satisfaction of the judgment against that employer": [170]. 2. Neither of the conditions to the application of s 151Z(2)(e) has been met: Mr Alelaimat has taken proceedings against his employer, and the occasion for him to choose whether to accept satisfaction of the judgment against WCNI has not yet arisen. Accordingly, s 151Z(1), including subs (d) thereof, does not apply, and the indemnity ordered by the primary judge in favour of WCNI under s 151Z(1)(d) must be set aside: [170]-[189]. As to issue (vi) (damages for medical expenses) 1. For the reasons above, s 151Z(1) does not apply, both of its force or by operation of s 151Z(2)(e). Accordingly, Mr Alelaimat was not obliged under s 151Z(1)(b) to repay WCNI for the medical expenses paid on his behalf, and to award damages referable to those medical expenses would constitute a windfall in Mr Alelaimat's favour. Arguably, the amount of medical expenses paid by WCNI on Mr Alelaimat's behalf should thus be deducted from the award of damages against Synergy Scaffolding: [190]-[193].

JUDGMENT

1. MEAGHER JA: I have had the advantage of reading in draft the judgment of Simpson AJA. I agree with her Honour's reasons for the making of the orders suggested at [194]. I also agree with her Honour that these orders should not be made without first giving an opportunity to the parties to make further submissions and to the State Insurance Regulatory Authority to seek leave to intervene.
2. KIRK JA: This appeal raises numerous issues of significant complexity. I have had the privilege of reading the judgment of Simpson AJA, with which I agree.
3. SIMPSON AJA: On 10 October 2012, in circumstances to be more fully described below, the first respondent, Mr Bilal Alelaimat, was seriously injured on a building site in the Sydney suburb of Artarmon. At the time, scaffolding, which had been erected to a height of three storeys, was being dismantled by workmen wearing orange shirts bearing the words "Synergy Scaffolding". Mr Alelaimat was struck by a piece of metallic scaffolding that had fallen from above. He claimed and was paid compensation pursuant to the Workers Compensation Act 1987 (NSW).
4. On 10 July 2017 Mr Alelaimat filed a Statement of Claim in the Supreme Court, claiming damages for the injury and consequent loss and damage suffered by reason of the falling scaffolding. He named Synergy Scaffolding Services Pty Ltd ("Synergy Scaffolding") as the defendant. His claim was ultimately formulated in a Further Amended Statement of Claim, filed on 7 October 2020, in which Synergy Scaffolding was named as first defendant and the Workers Compensation Nominal Insurer ("WCNI") was named as second defendant.
5. After a five-day trial in the Common Law Division of the Supreme Court, Synergy Scaffolding was ordered to pay Mr Alelaimat the sum of $1,356,533.39 by way of damages for the injury and consequential loss and damage suffered, and to indemnify WCNI in relation to certain payments made by it under the Workers Compensation Act: Alelaimat v Synergy Scaffolding Services (No 3) [2022] NSWSC 536. Synergy Scaffolding appeals against those, and other, consequential, orders.

The pleadings

1. Mr Alelaimat pleaded that, as at the date of injury, he was employed by DJ's Scaffolding Services Pty Ltd ("DJSS") but that his work was directed, coordinated and supervised by Synergy Scaffolding, who, he alleged, was in a position in relation to him analogous to that of employer. He pleaded that both Synergy Scaffolding and DJSS owed him a duty of care, that each was in breach of that duty, and that the breaches were the cause of his injury. He alleged that the scaffolding was being dismantled by employees of Synergy Scaffolding, or, alternatively, by employees of DJSS. As DJSS was deregistered on 20 March 2014, Mr Alelaimat sued WCNI as its insurer for the purposes of the Workers Compensation Act: Corporations Act 2001 (Cth) s 601AG; Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) s 4. He alleged that, as his employer, DJSS failed to take reasonable care to provide him with a safe place of work and was in breach of (unspecified) provisions of the "Workplace Health & Safety Act and Regulations".
2. Each claim was a common law claim, but they were subject to different statutory regimes. The claim against Synergy Scaffolding was governed by the provisions of the Civil Liability Act 2002 (NSW). The claim against DJSS was governed by the Workers Compensation Act, specifically Pt 5 Div 3 thereof.
3. Each defendant filed a defence. Synergy Scaffolding denied that its position in relation to Mr Alelaimat was analogous to that of employer, did not admit that the falling scaffolding was caused by its negligence or that of its employees or agents, denied that the scaffolding was being dismantled by its employees and denied that it was the negligence of its employees that caused the scaffolding to fall and injure Mr Alelaimat. It invoked Pt 1A Div 4 of the Civil Liability Act (which deals with assumption of risk) and asserted that Mr Alelaimat's injury was wholly or partly caused by his own negligence: Civil Liability Act, Pt 1A Div 8. Synergy Scaffolding pleaded that any damages to which Mr Alelaimat was entitled should be reduced pursuant to the provisions of s 151Z(2)(c) of the Workers Compensation Act. Finally, Synergy Scaffolding pleaded that Mr Alelaimat's claim was statute barred pursuant to the provisions of the Limitation Act 1969 (NSW).
4. In its defence WCNI expressly admitted that Mr Alelaimat was employed by DJSS. WCNI denied that the scaffolding was being dismantled by employees of DJSS and asserted that it was employees of Synergy Scaffolding who were undertaking that task. It relied on payments it had made to Mr Alelaimat in accordance with the requirements of the Workers Compensation Act. It did not plead a defence of contributory negligence.

Relevant factual background

1. Although Mr Alelaimat filed an evidentiary statement, his evidence was taken orally. I do not understand what follows to be controversial. It is drawn from evidence that was not disputed, or findings of fact by the primary judge that are not challenged.
2. Mr Alelaimat was born in Jordan in 1978. In 2001 he graduated from the University of Jordan with a Bachelor of Economics degree. In 2008 he came to Australia on a student visa. At some point he was granted permanent residency status. In 2010 he was employed as a truck driver.
3. In about March 2011 Mr Alelaimat answered an advertisement he saw on Gumtree for a truck driver for a scaffolding company. He was interviewed by Mr Ali Hamka, the Operations Manager of Synergy Scaffolding. After consulting Mr El Jarrar (a director of Synergy Scaffolding), Mr Hamka offered Mr Alelaimat employment. Mr Alelaimat was given a Synergy Scaffolding uniform which bore the Synergy Scaffolding logo and number, some personal protective clothing and some equipment.
4. For two weeks Mr Hamka trained Mr Alelaimat in how to drive trucks, first a smaller truck, and then a larger one, each of which bore on its side the Synergy Scaffolding logo and signage.
5. Thereafter Mr Hamka directed Mr Alelaimat with respect to his work. His work involved assisting others ("yardies") to load the truck with scaffolding and then to deliver scaffolding to the relevant job sites. Mr Alelaimat worked in accordance with Mr Hamka's directions.
6. In about July 2011, in a meeting with Mr Hamka and Mr El Jarrar, Mr Alelaimat was asked to obtain an Australian Business Number. He was told that it would be better for him and for Synergy Scaffolding if he did so. He agreed, considering that he had no choice.
7. Ms Nada Hamka (the sister of Ali Hamka) provided Mr Alelaimat with a book of blank invoices, which she told him to sign, and told him that "we" (Synergy Scaffolding) would complete the invoices. A number of the completed invoices were in evidence. On their face the invoices are invoices from Mr Alelaimat for labour. The invoices in evidence commence on 4 August 2011. Until 22 December 2011 they showed the recipient as "Scaffhire" or "Scaffhire Aust" (which may be inferred to be a related or associated company of Synergy Scaffolding). From 29 December 2011 the invoices show "DJ Scaffolding Services" or "DJ's" as the recipient. Mr Alelaimat said that the handwriting on the completed invoices was not his. He was unaware that invoices were being made out to DJSS.

The injury on 10 October 2012

1. Mr Alelaimat said that on 9 October 2012 Mr Hamka gave him his instructions for the following day. He told Mr Alelaimat to load the truck and deliver scaffolding to a worksite at North Sydney, which Mr Alelaimat did on the morning of 10 October 2012. Mr Alelaimat then telephoned Mr Hamka for further instructions. Mr Hamka told him to go to a worksite in Artarmon, to pick up scaffolding from that site, and return it to Synergy Scaffolding's premises at Kingsgrove. When Mr Alelaimat arrived at the Artarmon site the scaffolding was not stacked and ready to pick up and load onto the truck, and there were few workmen doing what was "a big job". Mr Alelaimat recognised those who were present as people he had seen working on Synergy Scaffolding worksites. They were wearing Synergy Scaffolding clothing. He called either Mr Hamka or Mr El Jarrar and was instructed to assist the workmen. The workmen were passing the scaffolding down from 3 levels. Mr Alelaimat assisted by manually receiving some of the materials and picking up others from the ground, and stacking them in preparation for loading onto the truck.
2. Three additional scaffolders arrived in a Synergy Scaffolding utility and wearing Synergy Scaffolding clothing. The work was then moving more quickly. Mr Alelaimat bent to pick up an item from the ground. He was struck by "a big force" on his back, his upper arm and his lower left shoulder. He saw that what had struck him was a metal plank that was caked in cement render.
3. Mr Alelaimat had telephone conservations with both Mr Hamka and Mr El Jarrar. Both told him (in words he attributed to Mr El Jarrar): "If anyone asks you who do you work for, just say DJ's Scaffolding, for the insurance purposes." Mr Alelaimat had never previously heard of "DJ's Scaffolding".
4. Mr Alelaimat was taken to a nearby medical centre. On 15 November 2012 he consulted a general practitioner he had previously consulted, Dr Ismail Mohammed.

Events following the injury

1. After what seems like a short time, Mr Alelaimat attempted to return to work on "suitable duties", for which he was certified fit by Dr Mohammed. The duties he was provided with by Synergy Scaffolding were unsuitable and involved lifting, handling and driving. After one or two weeks he left work.
2. On 12 October 2012 Nada Hamka submitted to CGU Workers Compensation (NSW) Limited (said to be "Agent for the NSW Work Cover Scheme") an "Initial Notification of Injury". The notification gave, as a description of the incident giving rise to the claim: "A 12Kg steel scaffold fell from the 3rd floor onto [Mr Alelaimat's] upper arm and over shoulder onto lower back". The injury was described as: "Left arm, shoulder and back injured". The notification named DJSS as Mr Alelaimat's employer. Although the evidence of what happened thereafter with respect to a claim made by Mr Alelaimat under the Workers Compensation Act is scant, it is clear that a claim was made under DJSS's workers compensation policy and was accepted by DJSS's workers compensation insurer and that medical expenses and weekly payments were made.
3. Thereafter, Mr Alelaimat was referred to a variety of medical practitioners, including a psychiatrist. On 7 March 2013 he was referred to Dr Darweesh Al-Khawaja, a neurosurgeon. Dr Al-Khawaja recorded that Mr Alelaimat presented with neck, left shoulder and lower back pain. He appears to have attributed much of the pain to the nature of Mr Alelaimat's work, and expressed the opinion that: "…the work injury and the type of work are the main contributing factors to his new symptoms at this stage." He recommended surgery to "open the canal and try to free the nerves", and said that there was "a good chance" that this would help the symptoms but he could not guarantee it. He said that he was seeking approval from CGU Workers Compensation for lumbar decompression and Rhizolysis. (This was apparently refused.) Dr Al-Khawaja recommended that Mr Alelaimat see a shoulder specialist.
4. As far as the evidence disclosed, it was not until November 2013 that Mr Alelaimat sought legal advice. Although the precise circumstances in which he did this were not elucidated in the evidence, he said that he did so when DJSS's workers compensation insurer rejected the claim for the costs of spinal surgery. (The transcript records Mr Alelaimat saying that he sought legal advice when the insurer "predicted" the surgery. It was not in dispute that this was a transcription error and that it was rejection of a claim for compensation for the costs of spinal surgery that prompted Mr Alelaimat to seek legal advice.)

Mr Alelaimat's employment

1. At this point it is necessary to say more about Mr Alelaimat's employment.
2. His initial interview was with Mr Hamka, who was Synergy Scaffolding's Operations Manager. Mr Hamka consulted Mr El Jarrar, who was a director of Synergy Scaffolding. Mr Alelaimat was given training by Mr Hamka. He was given Synergy Scaffolding clothing by either Mr Hamka or Ms Hamka. He drove trucks emblazoned with the Synergy Scaffolding name. He was given day to day directions by Mr Hamka.
3. There was, in evidence, a series of emails addressed to Mr Alelaimat. The emails emanate from what appears to be the email account of Ms Nada Hamka or, in some cases, Mr El Jarrar or Synergy Scaffolding, all on stationery bearing, in large print, the name "Synergy Scaffolding". Attached to each email is what purports to be a timesheet showing hours worked by Mr Alelaimat and his hourly rate of pay. The emails in evidence begin in April 2011; the last is in December 2011. Also in evidence were a series of tax invoices purporting to be invoices from Mr Alelaimat to Scaffhire or DJSS, consistent with the direction Mr Alelaimat had been given in about July 2011. There is some overlap with the invoices referred to above. The evidence thus points, not incontrovertibly, but strongly, to a conclusion that Mr Alelaimat was employed by Synergy Scaffolding.
4. Notwithstanding all of that, all parties went to trial on an agreed position that DJSS was Mr Alelaimat's employer. CGU, DJSS's then insurer for workers compensation claims, accepted that he was employed by DJSS, as did WCNI. The primary judge determined the issues on that agreed basis. This appeal must also be determined on that agreed basis.
5. As will be seen in due course, the issues of employment give rise to some complexity.

The Supreme Court proceedings

1. The proceedings came on for hearing before Campbell J (the primary judge) in the Common Law Division of the Supreme Court in October 2020.
2. Considering himself obliged to do so by the decision of the High Court in Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 at [9]-[10] the primary judge addressed first the issue raised by Synergy Scaffolding's defence under the Limitation Act, which he rejected. He therefore went on to address the issues of the liability of Synergy Scaffolding and the liability of DJSS, for which Mr Alelaimat was entitled, by s 601AG of the Corporations Act and s 4 of the Civil Liability (Third Party Insurance Claims Against Insurers) Act, to recover from WCNI.
3. Having rejected the Limitation Act defence, the primary judge upheld Mr Alelaimat's claim in negligence against Synergy Scaffolding. He rejected Synergy Scaffolding's defence of contributory negligence and entered judgment against Synergy Scaffolding in the sum of $1,356,533.39. His Honour held, notwithstanding that DJSS was accepted as Mr Alelaimat's employer, that that company had not been shown to have been in breach of its duty of care to him (at [137]) and entered judgment in favour of WCNI against Mr Alelaimat. By reference to the quantification of damages under the individual heads claimed by Mr Alelaimat, it can be seen that, had Mr Alelaimat been successful in his claim against DJSS, the award of damages would, in accordance with Pt 5 Div 3 of the Workers Compensation Act, have been $917,686.00. His Honour declared that Synergy Scaffolding was bound to indemnify WCNI in accordance with the provisions of s 151Z(1)(d) of the Workers Compensation Act for compensation paid to Mr Alelaimat under that Act. His Honour otherwise dismissed each cross-claim. He ordered Synergy Scaffolding to pay the costs of Mr Alelaimat and of WCNI.
4. The primary judge found Synergy Scaffolding liable to Mr Alelaimat in negligence on two independent bases. His Honour accepted that it was reasonably foreseeable that, in the dismantling of the scaffolding, a piece or component of the scaffolding might drop or fall because of "systemic, as opposed to casual, negligence": [117]. His Honour also accepted that there was a foreseeable risk that such a part or component might drop or fall in circumstances falling short of negligence. It is not necessary to pause to debate the validity of the latter conclusion, because his Honour went on to find that, in those circumstances, a reasonable person in charge of the operation at the Artarmon site would have taken the precaution of creating an exclusion zone at ground level into which others may not venture, and onto which the scaffolders could drop the scaffolding without risk to those on the ground. His Honour was clearly satisfied that Synergy Scaffolding was in charge of the operation and ought to have taken that precaution. Its failure to do so was the first basis on which liability was attributed to Synergy Scaffolding: [119]. It is of some significance that Synergy Scaffolding's failure in this respect was characterised as a failure to institute a safe system of work: [134].

The Appeal

1. By Notice of Appeal filed on 25 July 2022 Synergy Scaffolding appeals (as of right) against:

• the rejection of its defence under the Limitation Act (ground 1);
• the finding that DJSS had not been shown to have been in breach of the duty of care that it owed, as his employer, to Mr Alelaimat, and was therefore not liable either to him or to Synergy Scaffolding (grounds 2 and 3).

1. Pleaded grounds of appeal (grounds 6, 7, 8 and 9) challenging the rejection of the defence of contributory negligence and aspects of the quantification of damages were not pressed on appeal.
2. Grounds 4 and 5 of the appeal are framed as depending on the success of grounds 2 and 3. By ground 4 Synergy Scaffolding contends on the hypothesis that grounds 2 and 3 are upheld, that WCNI's cross-claim against Synergy Scaffolding should have been dismissed. By ground 5, Synergy Scaffolding contends that, if grounds 2 and 3 are upheld, the primary judge ought to have held that it (Synergy Scaffolding) was not liable to pay damages in respect of medical expenses already paid by WCNI to or on behalf of Mr Alelaimat.
3. The orders sought are specified as follows: "1. Appeal allowed. 2. Judgment for [Mr Alelaimat] against [Synergy Scaffolding] be set aside. 3. Judgment for [Synergy Scaffolding] as against [Mr Alelaimat]. 4. In the alternative to 3, judgment for [Mr Alelaimat] against [Synergy Scaffolding] in such revised sum as this court determines. 5. Judgment for [WCNI] against [Mr Alelaimat] be set aside. 6. Judgment for [Mr Alelaimat] against [WCNI] in such sum as this Court determines. 7. Dismissal of the First Cross-Claim [Synergy Scaffolding v WCNI] be set aside. 8. Judgment for [Synergy Scaffolding] as against [WCNI] in such sum as this Court determines. 9. Declaration that [Synergy Scaffolding] indemnify [WCNI] pursuant to the Second Cross-Claim [WCNI v Synergy Scaffolding] be set aside. 10. Judgment for [Synergy Scaffolding] as against [WCNI] on the Second Cross-Claim. 11. All costs orders below set aside. 12. Costs of the proceedings below be as determined by this court. 13. [Mr Alelaimat and WCNI] to pay [Synergy Scaffolding's] costs of the appeal." (Proposed order 9 reflects an earlier version of the primary judge's orders, as they appear in the reasons for judgment.)

Ground 1 of the appeal: the Limitation Act defence

1. It is convenient to begin, as did the primary judge, with Synergy Scaffolding's defence under the Limitation Act.
2. It was common ground that the relevant limitation period was the "three year post discoverability limitation period" prescribed by s 50C(1)(a) of the Limitation Act as applicable to causes of action that relate to the death of or personal injury to a person. The "post discoverability limitation period" is the period of three years running from and including the date on which the cause of action is discoverable by the plaintiff. Mr Alelaimat's action against Synergy Scaffolding was brought on 10 July 2017. Accordingly, if his cause of action were discoverable by him prior to 10 July 2014 it was, by s 50C(1)(a), not maintainable.
3. When a cause of action is discoverable is defined in s 50D, subss (1) and (2) of which provide: "50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts - (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact."
4. Synergy Scaffolding accepted, correctly, that it bears the onus of proving that, by 10 July 2014, Mr Alelaimat knew or ought to have known each of the subs (1) "facts". Synergy Scaffolding expressly disclaimed reliance on constructive knowledge. Its case was that, at the relevant time, Mr Alelaimat had actual knowledge of each of the three subs (1) "facts".
5. Subsection (2) nevertheless has significance because: "…it contains implications that some facts may only be reasonably ascertainable [and thus known] with professional assistance and that there may be facts which involve an element of professional judgment": Murgolo v AAI Ltd (t/as AAMI) (2019) 101 NSWLR 376; [2019] NSWCA 295 at [40] (Basten JA) ("Murgolo"). Subsection (2) thus throws some light on the proper construction of, or approach to, subs (1).

Knowledge

1. In Vines v Djordjevitch (1955) 91 CLR 512; [1995] HCA 19, in the context of a statute that permitted a person injured by an unidentifiable motor car to recover damages against a nominal defendant, provided that "as soon as he knew that the identity of the motor car could not be established" the plaintiff gave notice of his intention to make a claim against the nominal defendant, the High Court (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ) said at 522: "The word 'know' is used in the provision in an ordinary sense, without any intention that it should be analyzed or refined upon. But of course there are gradations of knowledge or belief upon such a matter. The gradations extend from a slight inclination of opinion to complete assurance. Here it seems to amount to an awareness or consciousness that no reasonable probability exists of ascertaining the identity of the car satisfactorily or with any certainty. Complete assurance is by no means necessary. When the plaintiff has come to think that the identity cannot be established that is enough. If the expression 'think' must be refined upon, it may be said to mean that the steady preponderance of his opinion or belief is that it cannot be done."
2. In Baker-Morrison, in the context of s 50D, Basten JA (with the concurrence of Ipp and Macfarlan JJA) said with respect to knowledge (at [45]): "… s 50D refers, somewhat simplistically, to whether the person 'knows' (or ought to 'know') the identified facts. It is rare that facts will be known in any absolute sense: rather, as a practical matter, the person will have a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purposes of legal proceedings. Such a belief may be held on firm ground or on shaky grounds. The belief is likely to involve an assessment of various matters, none of which can be readily quantified. Questions involving causation, fault and assessment of damages are all susceptible to these kinds of uncertainty. Nevertheless, the chapeau of the subsection refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings."
3. Later, in Murgolo, Basten JA said: "41 Secondly, it follows that the concept of knowing a fact must be understood to include opinions or beliefs formed on the basis either of direct observation (and experiences) or of information supplied by others and accepted by the prospective claimant. 42 Thirdly, the concept of knowledge (that which is known) is inherently contextual. To a scientist, it may be the best current working hypothesis which has not been falsified. In the Limitation Act it obtains its colour from its purpose, which is (at a high level of generality) to define when, balancing the interests of the injured person and the putative wrongdoer, the limited time within which a claim may be made should begin to run. This requires the identification of a position on a spectrum from baseless speculation to rational conviction. 43 Further, the point on the spectrum of levels of conviction as to a particular fact must be determined by the purpose (more precisely identified) for which knowledge is required. That purpose is to identify the time at which it is reasonable to require that a person should consider the commencement of proceedings, within the ensuing three years. That means that the level of conviction need not be as high as that required to commence proceedings, because a limitation period based on discoverability specifies the time within which to decide whether or not to commence proceedings. On the other hand, to warrant further investigation there must also be a reasonable conviction that upon further investigation the factual basis of the claim is likely to be strengthened by the collection of evidence, rather than undermined by further enquiries. In some cases, particular features, such as the apparent seriousness of the injury, and the cost of further investigations, may affect that assessment. 44 Fourthly, the question identified in the section has a temporal element: it requires the identification of 'the first date' on which a person knows something. Where there is a process of investigation in order to determine a fact, the level of conviction as to the existence [of] the fact may vary over the course of the investigations. But even to state the issue in that way assumes there is a fixed process of investigation which will be completed at a particular point, rather than an ongoing process of inquiry which may give rise to fluctuating results, with no clear date at which the process is concluded. … 46 The fact that s 50D(1) requires the court to determine the 'first date' that the plaintiff knew something does not necessarily mean finding the first date on which the plaintiff believed that he knew something. Especially may that be so where the 'something' is a composite fact, such as the identity of the defendant or a causal connection between the injury and the defendant's act, or the characterisation of the defendant's act as involving fault. … 47 Fifthly, the question of knowledge is to be assessed when the defence that the claim is out of time comes to be resolved. The question is whether, at that time, the evidence establishes that what the claimant firmly believed at one point in time was false; if so, can it be said that, at that point in time, he knew the particular fact? That question arises with some regularity in circumstances where the relevant fact is an inference drawn from other circumstances which were, at an earlier time, uncertain or unknown. …" (emphasis added)

The "facts"

1. As indicated above, s 50D(1) is directed to knowledge of three "facts", only two of which are presently in issue. Those in issue are the "facts" that:

• Mr Alelaimat's injury was caused by the fault of Synergy Scaffolding (s 50D(1)(b)); and
• the injury was sufficiently serious to justify the bringing of an action against Synergy Scaffolding (s 50D(1)(c)).

1. The fact contemplated by s 50D(1)(b) is: "…a relationship between two things, namely, the injury … on the one hand and the fault of the defendant on the other. The relevant connection is one of causation.": Baker-Morrison at [28]. To "know" that an injury is caused by the fault of the defendant is to know "the key factors necessary to establish liability": Baker-Morrison at [39]. That may involve knowledge of a number of anterior facts, from which a conclusion that the injury was caused by the fault of the defendant may be drawn. The s 50D(1)(b) "fact" is, in reality, a conclusion drawn from known (or supposed) facts. The anterior facts sufficient to justify such a conclusion may, as Leeming JA said in Murgolo, became known to the plaintiff at different times.
2. Whether the anterior facts known to the putative plaintiff are such as to constitute knowledge that the injury was caused by the fault of the putative defendant depends upon a "legal evaluative judgment": Baker-Morrison at [41]. In particular, having regard to the provisions of the Civil Liability Act, notably ss 5B and 5D, the putative plaintiff needs an appreciation of the principles applicable to a claim for damages based on negligence. Similarly, where the putative plaintiff is an employee of the putative defendant, an appreciation of the provisions of the Workers Compensation Act is necessary. Ordinarily, the lay person will not have either of those appreciations without legal advice, and sometimes specialist expert advice. That is not to say that legal advice will be required in every case: see, for example, Pomare at [19] (Basten JA).
3. The fact contemplated by s 50D(1)(c) is attended by even greater complexity. Although, having regard to the terms of s 50D(1), a judgment that an injury is sufficiently serious to justify the commencement of proceedings must be treated as a "fact", it is a "fact" knowledge of which necessarily requires evaluation of both medical and legal issues, and which may not be able to be known to the lay person without appropriate medical and/or legal advice. The need for a "legal evaluative judgment … is even more explicit" with respect to s 50D(1)(c). The injury must not only be understood (by the putative plaintiff) to be serious, but "sufficiently serious to justify" bringing an action on the cause of action: Baker-Morrison at [41]. Inherent in that proposition is an appreciation of the causes of action that may be available. Also inherent in the proposition is an appreciation of the facts necessary to support such an action. Rarely is that likely to be understood - "known" - by a lay plaintiff without the benefit of both legal and medical advice.

Grounds 2 and 3 of the appeal

1. As noted above, Synergy Scaffolding does not dispute the liability findings against it. By ground 2 it challenges the finding of the primary judge that DJSS was not liable to Mr Alelaimat in negligence. By ground 3 it asserts that the primary judge: "… should have held that [DJSS] breached its duty of care as an employer, and was therefore liable to [Mr Alelaimat], and to [Synergy Scaffolding] as Cross-Claimant."
2. The formulation of ground 3 is, as will be seen below, of some importance. The issue of DJSS's liability to Mr Alelaimat has important and potentially complex implications in terms of apportionment of liability (although these were not spelled out with any clarity, either at first instance or in the written submissions filed in this Court).
3. Section 151Z(2) of the Workers Compensation Act makes elaborate provision with respect to awards of damages where a plaintiff has a cause of action for damages against a defendant who is an employer (the extent of whose liability is to be determined under the restrictive provisions of the Workers Compensation Act) and a concurrent cause of action against a defendant other than an employer (the extent of whose liability is to be determined, generally, by reference to the Civil Liability Act). One effect of s 151Z(2) is to reduce the liability to the plaintiff of the defendant who is not the employer (par (c)). Another is to modify any contribution the non-employer defendant may recover from the employer defendant (par (d)).
4. Section 151Z(1) of the Workers Compensation Act addresses the circumstance in which an employer, while liable to pay compensation under the Workers Compensation Act for an injury, is not a tortfeasor liable to pay damages, and the injury is caused in circumstances creating a liability in a third party tortfeasor to pay damages. It is not applicable where the employer is also a tortfeasor liable to pay damages: Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28 ("Murray-More"); CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 433; [2013] NSWCA 49 at [33] ("Weathertex"); Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357 at [43] ("Endeavour Energy"); South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; [2017] NSWCA 312 at [170] ("South West Helicopters").

Ground 2: the liability of DJSS to Mr Alelaimat

1. The primary judge accepted, as he was obliged to do by the common position of the parties, that DJSS was Mr Alelaimat's employer. His Honour treated DJSS as, in effect, a labour-hire company that supplied labour to entities with which it contracted.
2. It is uncontroversial that an employer is under a duty to take reasonable care to provide a safe system of work for its employees. It is equally uncontroversial that that duty cannot be delegated by, for example, engagement of an independent contractor: Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 ("Kondis").
3. In Kondis, in common with the present case, the plaintiff (Mr Kondis) was struck on the back by an object (a metal rod) which had been dropped from above by another worker on the site as he (Mr Kondis) bent to pick up some items from the ground. There the commonality ends.
4. Mr Kondis was sent by his employer (the Victorian Railways Board) to assist in dismantling a large metal structure on property which, it seems a fair inference, was owned by the employer. For the purpose of the dismantling the employer had engaged a contractor to operate a crane. The jib of the crane needed to be extended. It was an employee of the contractor who was responsible for dropping the metal rod during the extension process. Mason J, with whom Brennan, Murphy, Deane and Dawson JJ agreed, held the employer to be in breach of its duty to provide a safe system of work. It could not escape liability by engaging an independent contractor to undertake the work. The duty of the employer was to ensure that reasonable care was taken by the contractor (at 686-687). The employer was liable to its employee for any negligence on the part of the contractor in failing to adopt a safe system of work (at 688). An employer bears liability for the negligence of its independent contractors in devising a safe system of work, and bears the consequences of requiring its employees to work according to an unsafe system. The liability is not vicarious but arises because the contractor's omission to adopt a safe system of work is a breach of the employer's duty.
5. Deane J agreed, adding: "The obligation of an employer to provide a safe system and conditions of work for an employee is not discharged by mere delegation to an independent contractor any more than it is discharged by mere delegation to an employee. It 'is one of those' cases in which a person 'remains liable to third parties for the consequences of the negligence of an independent contractor, just as he would be if it were his own negligence or that of his servant': per Windeyer J in Voli v Inglewood Shire Council [(1963) 110 CLR 74 at 95; [1963] HCA 15]. The employer 'may bargain with the contractor that he shall perform the duty, and stipulate for an indemnity from him if it is not performed but he cannot thereby relieve himself from liability to those injured by the failure to perform it' …. The reason is that, in the context of the particular relationship of employer and employee and of the undertaking by the employee of the general obligation to work in the interests of the employer, the content of the employer's duty to take reasonable care to provide a safe system and conditions of work for the employee is not discharged by delegation unless the delegate, be he employee or independent contractor, in fact provide the reasonable care which the employer was under an obligation to bring to bear."

Andar Transport Pty Ltd v Brambles Ltd

1. Andar (as its full name implies) was a transport company. It held a contract with Brambles for the supply of laundry services to hospitals. For that purpose it employed the plaintiff, Mr Wail, to load large trolleys filled with clean laundry onto trucks for delivery to hospitals, and there to unload them. The trolleys were supplied by Brambles. The trucks were Andar's property, but, at Brambles' insistence, were painted with Brambles' insignia. One day, while Mr Wail was unloading the truck, one trolley jammed against another. Mr Wail attempted to free the trolley and, in doing so, suffered spinal injury.
2. Mr Wail sued Brambles - but not Andar - in negligence in the Victorian County Court. A jury upheld his claim. It was accepted that, in doing so, the jury found that the trolleys were not safe to use. As the supplier of the trolleys, Brambles was liable to Mr Wail for the injury caused by their use.
3. A third party notice filed by Brambles, claiming contractual indemnity from Andar, was dismissed by a County Court judge. The relevant indemnity in the contract on which Brambles relied was for loss, damage or injury to any person caused or contributed to by the conduct of Andar or by any act, omission, neglect or default of Andar. The Court of Appeal upheld an appeal by Brambles against the dismissal of the third party notice: Brambles v Wail [2002] VSCA 150. It held that Brambles was entitled to a complete indemnity from Andar.
4. Andar appealed to the High Court. One question that arose was whether Andar was contractually obliged to indemnify Brambles for the liability it had incurred as a result of Mr Wail's injury. That depended on whether the injury was caused or contributed to by the conduct of Andar or by "any act, omission, or breach or default by Andar", specifically whether it (as employer) had breached its duty to take reasonable care to provide Mr Wail with a safe system of work. The High Court (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, and Heydon JJ, Callinan J dissenting) held that it had. The majority held that Andar had (apparently) given no consideration to the best method of loading trolleys and that steps could reasonably have been taken to reduce the likelihood of injury. Their Honours specified what those steps might have been. It was clear that Andar had full knowledge of the system of loading and unloading trolleys, and could have taken precautions to prevent the kind of jamming that caused the injury to Mr Wail. There was no issue of delegation in that case. Andar was the employer, responsible for Mr Wail's working conditions. It was therefore correct for the primary judge to hold that the present case was "quite unlike" Andar.

Shoalhaven City Council v Humphries

1. Mr Humphries was employed by a labour-hire company. He was assigned to work for an arm of the Shoalhaven City Council ("the Council") to attend to the servicing of sewerage main manholes. The work at times necessarily involved removal of manhole covers, some of which were heavy. Mr Humphries had received no particular training for that task but was under the direction of a Council supervisor. The Council had available trucks fitted with mechanical lifting devices for use in circumstances where heavy lifting was required.
2. Mr Humphries was injured while performing the work. He brought proceedings in the District Court against the Council claiming damages, asserting negligence. He did not bring proceedings against his employer. The trial judge found that the Council owed Mr Humphries a duty of care (analogous to that of employer) of which it was in breach, and therefore liable to the plaintiff: Humphries v Shoalhaven City Council [2012] NSWDC 216 at [205].
3. Although the Council did not cross-claim against the employer, it contended that it was entitled to a reduction, in accordance with s 151Z(2)(c) of the Workers Compensation Act, in the damages to be awarded to Mr Humphries on the basis of the contribution to which it would have been entitled from the employer by reason of its negligence. That involved an assessment of what contribution (if any) the Council would, pursuant to s 5 of the 1946 Miscellaneous Provisions Act, have been entitled to recover from the employer as a joint tortfeasor.
4. The trial judge (Levy DCJ) rejected the Council's contention. He found that, while there was evidence that the employer had given some training to Mr Humphries in relation to working in confined spaces, and in traffic control safety (both tasks in which it might have been anticipated that Mr Humphries would be required to engage) it had given him no training in safe lifting techniques. His Honour held that there was, however, no evidence that the employer was aware that Mr Humphries might have been employed in heavy lifting tasks, such that he ought to have been appropriately trained. Levy DCJ found that Mr Humphries' injury resulted, not from an unsafe system of work, but from a casual act of negligence by the Council supervisor in failing to direct Mr Humphries to use an available lifting device. He considered that, had the employer made appropriate enquiries of the Council as to its work system, it would have ascertained that it had available appropriate lifting devices. That would have satisfied it that the system of work was safe for Mr Humphries. The trial judge therefore declined to reduce the damages he awarded to Mr Humphries by reason of the employer's negligence. Given that this determination was made in the context of a claim, by the Council, under s 151Z(2)(c) of the Workers Compensation Act, for reduction in the damages to which Mr Humphries was entitled, the finding is in my opinion, properly to be seen as a finding that the Council was not entitled to any contribution from the employer because it was just and equitable that the Council bear the whole of the responsibility for Mr Humphries' injury.

Conclusions on ground 2

1. For the reasons given above, the conclusion of the primary judge that DJSS was not liable to Mr Alelaimat was not correct. Ground 2 of the appeal should be upheld. The consequence is that Order 5, as sought (an order setting aside the judgment in favour of WCNI against Mr Alelaimat) must be made, as must Order 6 as sought. Neither WCNI nor Synergy Scaffolding took issue with the primary judge's quantification of those heads of damages available under the Workers Compensation Act. Judgment for Mr Alelaimat against WCNI should be given in the sum of $917,686.00 (see [44] above).

Ground 3: was DJSS liable to Synergy Scaffolding?

1. Ground 3 of the appeal is a composite. It contends that the correct finding was that DJSS was in breach of its duty of care to Mr Alelaimat as employer, and was therefore liable (i) to Mr Alelaimat and (ii) to Synergy Scaffolding. That the correct finding was that DJSS (and thus WCNI) was liable to Mr Alelaimat follows from the conclusion above that Ground 2 should be upheld. To that extent, Ground 3 should also be upheld. It does not necessarily follow that the correct finding was that DJSS was liable to Synergy Scaffolding.
2. The potential liability of WCNI to Synergy Scaffolding arises in this appeal in two ways - first, as will be explained below, with respect to Synergy Scaffolding's claim for reduction in the damages it is liable to pay to Mr Alelaimat by reason of s 151Z(2)(c) of the Workers Compensation Act; and, second, under its cross-claim against WCNI. Also relevant in this context is WCNI's cross-claim against Synergy Scaffolding, claiming contribution or complete indemnity pursuant to s 5(1)(c) of the 1946 Miscellaneous Provisions Act, and indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act.
3. Any liability DJSS (or WCNI) had to Synergy Scaffolding was (and is) to be determined under Synergy Scaffolding's cross-claim. By its cross-claim Synergy Scaffolding claimed that (but for the deregistration of DJSS) it (Synergy Scaffolding) would have been entitled to indemnity or contribution from DJSS (and was therefore entitled to indemnity or contribution from WCNI). The basis for that claim lies in s 5 of the 1946 Miscellaneous Provisions Act, which is relevantly in the following terms: "(1) Where damage is suffered by any person as a result of a tort …: … (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity." Thus, Synergy Scaffolding claimed against WCNI such contribution as was just and equitable having regard to DJSS's responsibility for the damage suffered by Mr Alelaimat. That is ordinarily done by assigning a percentage of the responsibility to each defendant.

Synergy Scaffolding's claim for reduction in damages pursuant to s 151Z(2)(c) of the Workers Compensation Act

1. Before coming to the cross-claims it is necessary to deal with the claim by Synergy Scaffolding for reduction, pursuant to s 151Z(2)(c) of the Workers Compensation Act, in the damages awarded to Mr Alelaimat.
2. Section 151Z is a notoriously difficult provision to construe and to apply. It was enacted in the context of statutory amendments that quite drastically reduced the damages to be awarded at common law to employees injured by the negligence of employers: see the history recounted by Allen J in Leonard v Smith (1992) 27 NSWLR 5. The relevant provisions are to be found in Pt 5 Div 3 of the Workers Compensation Act.
3. As already mentioned subs (1) of s 151Z, to which it will be necessary to return, applies where a plaintiff has a claim for compensation under the Workers Compensation Act against his or her employer in respect of an injury for which a third party (but not the employer) is liable in damages.
4. Subsection (2) of s 151Z applies where a plaintiff has a cause of action for damages (as distinct from a claim for compensation under the Workers Compensation Act) against both his or her employer and a third party in respect of an injury. It is convenient to use the terminology "employer tortfeasor" and "third party tortfeasor". Subsection (2) of s 151Z provides: "151Z Recovery against both employer and stranger … (2) If, in respect of an injury to a worker for which compensation is payable under this Act - (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect - (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages, (e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that - (i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise - the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and (ii) if the compensation paid by that employer does not exceed the amount of that contribution - subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution."

What contribution (if any) is it just and equitable that WCNI make to Synergy Scaffolding?

1. Any contribution to be made by WCNI to Synergy Scaffolding is to be determined by what is just and equitable "having regard to the extent of [DJSS's] responsibility" for Mr Alelaimat's injury.
2. Evidence about DJSS's role in Mr Alelaimat's conditions and circumstances of work is entirely lacking. Apart from its liability to Mr Alelaimat as his employer and thus its liability for the negligence of Synergy Scaffolding, almost nothing is known of DJSS's role.
3. The most that has been advanced by Synergy Scaffolding is that Mr Alelaimat responded in the negative to a question whether he had been "given any training or instruction about entering into a zone that was not safe around scaffolding". He also said that, until his injury, he had no knowledge of DJSS, from which some inference may be drawn that he had not, at least to his knowledge, been given any instruction by DJSS. That is a flimsy basis for finding DJSS liable other than on the Kondis principle.
4. In Kondis the separate basis on which Mason J would have held the employer liable to Mr Kondis lay, in part, in the circumstances that pertained to that work site. The employer retained a foreman on the site who, Mason J found, could and should have given Mr Kondis directions to distance himself from the crane when the jib was being extended. His Honour said: "It was not a case in which the employer had placed his employee under the control of a third party in circumstances in which the employer ceased to have any power or opportunity to give directions as to the manner in which the work in question was to be undertaken. The employer's duty at common law to take reasonable care for the safety of his employee extends to giving him directions in the performance of his work where directions might reasonably be thought to secure him from danger of injury … The giving of such directions remain within the ordinary prerogative of the [employer] despite the engagement of the independent contractor." (internal citations omitted)
5. In this case, apart from one answer given by Mr Alelaimat, it is not known what instructions, if any, DJSS gave either to Mr Alelaimat or to Synergy Scaffolding. What is apparent from the evidence is that, so far as DJSS knew, Mr Alelaimat was engaged by Synergy Scaffolding to drive a truck. He was not hired to Synergy Scaffolding to assist in the dismantling of scaffolding, nor of clearing up the Artarmon site. DJSS could not reasonably have thought that it was necessary to direct him to stay out of the scaffolding area in order to secure him from the danger of injury by falling scaffolding. On the evidence, DJSS could not reasonably have been expected to establish, or to insist that Synergy Scaffolding establish, an exclusion zone around the worksite. No breach of duty by DJSS other than its failure to ensure that Synergy Scaffolding provided Mr Alelaimat with a safe system of work has been established. That says nothing about the respective responsibilities of Synergy Scaffolding and DJSS for Mr Alelaimat's injury.

Grounds 4 and 5 of the appeal

1. As pleaded, grounds 4 and 5 of the appeal are predicated on the success of both grounds 2 and 3. Synergy Scaffolding has had success on ground 2, and partial success only on ground 3.

Ground 4: was WCNI entitled to indemnity under Workers Compensation Act s 151Z(1)(d)?

1. By ground 4 Synergy Scaffolding contends (on the hypothesis that grounds 2 and 3 are upheld), that WCNI's cross-claim against it should have been dismissed.
2. By its cross-claim WCNI sought: (i) contribution or complete indemnity pursuant to s 5(1)(c) of the 1946 Miscellaneous Provisions Act; and (ii) indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act.
3. Because he found WCNI not liable to Mr Alelaimat, it was not necessary for the primary judge to address the question of contribution or indemnity under s 5 of the 1946 Miscellaneous Provisions Act. His Honour ordered Synergy Scaffolding to indemnify WCNI, in accordance with s 151Z(1)(d), for compensation paid by WCNI under the provisions of the Workers Compensation Act. That order also resulted from the finding that WCNI was not liable to Mr Alelaimat. Synergy Scaffolding contends that it should be set aside.
4. Paragraph (d) of s 151Z(1) provides: "If the worker has recovered compensation under this Act, the person by whom the compensation was paid [here, WCNI] is entitled to be indemnified by the person so liable to pay those damages [here, Synergy Scaffolding] (being an indemnity limited to the amount of those damages)." Thus, if s 151Z(1) applies, WCNI is entitled to the indemnity order made by the primary judge. The question is whether s 151Z(1) does apply.
5. As stated above (see [91]), s 151Z(1) does not apply (of its own force) where the employer (as well as the third party) is a tortfeasor liable to the plaintiff for damages. On the findings of the primary judge, therefore, the order was appropriately made. On the findings I make, because WCNI is liable to Mr Alelaimat for damages, s 151Z(1) can have no application unless by some route other than its own terms. Such a route potentially emerges in s 151Z(2)(e). That paragraph (subject to the presently immaterial exceptions stated in sub pars (i) and (ii)) applies subs (1) in relation to an employer who is also a tortfeasor in specified circumstances. It is worth repeating the substance of par (e), which is: "if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that - (i) … (ii) …"

Ground 5: was Synergy Scaffolding liable to pay damages representing Mr Alelaimat's medical expenses?

1. By ground 5 Synergy Scaffolding contended that it was not liable to pay Mr Alelaimat damages in respect of medical expenses paid to or on his behalf by WCNI. This ground, too, invoked par (e) of s 151Z(2) and s 151Z(1).
2. Besides par (d), subs (1) of s 151Z contains a number of other important provisions, including notably that a plaintiff who recovers damages from a third party tortfeasor is required to repay out of the damages any compensation he or she has been paid under the Workers Compensation Act (par (b)). "Compensation" in that context includes medical expenses.
3. The award of damages in favour of Mr Alelaimat against Synergy Scaffolding included an amount of "past out of pocket" expenses, but did not identify what (if any) of this amount was constituted by medical expenses and what, (if any) had been paid by WCNI. The evidence sufficiently established that WCNI had paid a sum of $175,841.79 as medical expenses.
4. If, as I have concluded, subs (1) is not made applicable by s 151(2)(e), and Mr Alelaimat is not otherwise obliged to repay WCNI for the medical expenses paid on his behalf, then, arguably, the loss for which he was entitled to be indemnified did not include those expenses and the order in his favour so far as it includes a component representing medical expenses constitutes a windfall. Arguably, that amount should be deducted from the award of damages. If that is correct, ground 5 should be upheld.
5. On the basis of the conclusions I have reached the appropriate orders would appear to be: 1. Judgment for the first respondent against the appellant (Synergy Scaffolding) in the sum of $1,356,533.39 set aside; 2. In lieu thereof, judgment for the first respondent against the appellant in the sum of $1,180,691.60; 3. Judgment for the second respondent (WCNI) against the first respondent set aside; 4. In lieu thereof, judgment for the first respondent against the second respondent in the sum of $917,686.00; 5. The order that the appellant indemnify the second respondent pursuant to s 151Z(1)(d) of the Workers Compensation Act in the sum of $246,202.54 set aside; 6. Costs reserved.
6. However, the parties necessarily advanced their arguments and submissions on hypotheses not entirely consistent with the conclusions I have reached. The conclusion above with respect to s 151Z(2)(e) could have entirely unexpected consequences. It would mean, for example, that a plaintiff who succeeded in obtaining an award of damages against a third party tortfeasor and an employer, but who enforced only the judgment against the third party tortfeasor, would be protected from the provisions of s 151Z(1), which would otherwise terminate his or her rights under the Workers Compensation Act, and require repayment of the compensation paid. I am not aware of any provisions, other than s 151A and s 151Z(1)(b) that require such repayment.

Amendments 08 September 2023 - Correct citation CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 433; [2013] NSWCA 49 12 September 2023 - Formatting of heading at [121] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 September 2023