Zaya v Manidis Roberts Pty Ltd v UGL Infrastructure Pty Ltd and Anor

The plaintiff's case

1. Mr Zaya, who previously worked for the employer as a concreter, commenced, in the supervisor's position on or about 7 November 2011 (Exhibit 1DH). By then he had had extensive experience in concreting work. As I have already said, he was inducted onto the Marrickville site by Mr Valletta (Exhibit 1DG, p110 ff).
2. By 4 April 2012 work on the site had progressed to a stage where concrete construction was well advanced in the substation basement. The suspended concrete-slab ground floor of the substation had been constructed over the below-ground basement.
3. Access to the basement from ground level was provided by 2 staircases referred to in the plans (Exhibit 1DG at Tab 7) as stair 1 and stair 3 respectively. My understanding of the plans is that stair 2 was a lower part of stair 1 and stair 4 was a shorter flight internal to the basement for access to services which were to be installed there. Nothing turns on this. It is common ground between the parties that Mr Zaya ("allegedly" from Energised Alliance's point of view) fell from Staircase 3. This staircase consisted of a top landing at ground level and two flights descending to the basement floor separated by a landing at about the middle of the descent. This staircase had been poured on or about 27 February 2012 (418.47T). Staircase 1 had been poured somewhat earlier. No completed "Inspection Check Sheet" was tendered for either staircase: cf Exhibit 1DG, pp 104 - 109.
4. There is a very significant issue of fact about whether, and if so to what extent, the formwork had been stripped from staircase 3 prior to Mr Zaya's fall. Mr Zaya says, and Energised Alliance strongly disputes, that all but two riser shutters had been removed from the staircase. These two shutters were in the lower of the two flights after the middle landing. Mr Zaya says their presence was not obvious to him as he descended the staircase, ahead of Mr Abunucerah and Mr McElroy to conduct an inspection pertaining to future work. The riser shutters were constructed of a length of plywood sheeting held in place against the concrete face of the riser of a step by two lengths of four by two timber fixed in a horizontal plane at the top and bottom of the plywood. These were fixed in place by attachment to the lateral or longitudinal formwork for the side of the staircase. According to Mr Abunucerah the effect of the shutters was the shortening of the length of the going of the affected steps causing Mr Zaya to "tumble over" and fall down the remaining stairs to the ground below (Exhibit 2DC, [12]-[13]). I took Mr Zaya's reference to him losing his balance as meaning losing or missing his footing (Exhibit C, [67]).
5. Mr Zaya says that the staircase had been left in this condition is the fault of Mr Valletta. Mr Zaya's case is that without reference to or consultation with him as the employer's site supervisor Mr Valletta had, on 3 April 2012, first directed PNT workers to commence stripping the formwork from the surface of the steps, and secondly directed them to cease before the task was complete, leaving the two riser shutters in place.
6. Mr Zaya alleges (Amended Statement of Claim, 19 March 2018 [12]): The presence of timber formwork on only two steps towards the bottom of the stairway created an unreasonable risk of injury through persons descending the stairs, failing to detect in sufficient time the fact that timber formwork was on only two steps, losing their balance on the two steps which still had timber formwork on them and falling.
7. Mr Valletta's conduct was said to have created this risk of injury by reference to a number of considerations. First, the failure to strip the formwork from the whole staircase was contrary to standard industry practice which required formwork to be stripped from staircases in a single operation. Secondly, and this being so, absent specific warning, workers using the stairs would assume that the surface was completely clear of formwork and therefore free of unexpected trip hazards; and safe to use. Thirdly, the hazard was the unexpected shortening of the going. Experienced concreters were able to negotiate formwork encased staircases without difficulty because they are aware of the hazard and thereby equipped to exercise due care for their own safety (eg 450.1-20T). Where all shutters are in place the effective length of the going remains standard for the length of the flight.

The issues

1. Energised Alliance does not admit that the accident happened at all. It also strenuously disputes the necessary integers of Mr Zaya's case in negligence at the factual level. It denies that Mr Valletta directed either the stripping of the formwork or its cessation prior to its completion. Energised Alliance's case is that no formwork whatsoever had been stripped from the staircase on or before 4 April 2012. Indeed, its case is that the stripping of the formwork was only scheduled after 4 April 2012.
2. Energised Alliance also joins issue with Mr Zaya on the scope of the duty of care it owed him as the employee of an independent contractor. It says its duty is strictly limited as discussed by the High Court of Australia in Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 and Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16; [1986] HCA 1. It also pleads contributory negligence on the part of Mr Zaya. It strongly contests the nature and extent of Mr Zaya's injuries and disabilities. In particular it denies that he suffers CRPS.
3. The employer admits its undoubted non-delegable duty of care owed to Mr Zaya as its employee but contends that it was not negligent. If it was negligent, the employer also relies upon contributory negligence. It does not dispute the occurrence of the fall but does dispute the nature and extent of Mr Zaya's injuries and disabilities. I observe, however, there is conclusive evidence under s 321 Workplace Injury Management and Workers Compensation Act 1998 (NSW) against the employer that the degree of whole person impairment resulting from the injuries received in the fall is at least 15%. Indeed the assessment by the approved medical specialist, Dr J B Stephenson, Orthopaedic Surgeon, in respect of Mr Zaya's condition of CRPS as diagnosed by him was 49% (Exhibit A, p107).
4. Energised Alliance and the employer cross-claim against each other for statutory contribution to any damages payable under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The employer also seeks indemnity from Energised Alliance for compensation paid to, for and on behalf of Mr Zaya under the Workers Compensation Act 1987 (NSW), under s 151Z(1)(d) of that Act.

Did Mr Zaya fall from staircase 3

1. I have no difficulty accepting that Mr Zaya fell down the lower flight of stairs on staircase 3 around 3 p.m. on 4 April 2012. His account is corroborated by Mr Mr Abunucerah whose evidence in this regard I also accept. Mr Abunucerah was an eyewitness following Mr Zaya down the stairs to plan further work to be carried out in the basement. I also accept that Mr Abunucerah reported the injury in accordance with Energised Alliance's requirements to Mr Valletta that afternoon (421.45T; 442.20T; 448.15-40T). I prefer his account to Mr Valletta's account that the injury was not reported until 5 April 2012.
2. Moreover, Mr Zaya attended a GP in the medical practice at IMMEX Green Square, which he usually attended, on 5 April 2012 consulting Dr Abdul Mohammed. He gave a history of slipping and falling down the stairs injuring his lower back and right hand at work on 4 April 2012 (Exhibit F; p. 23). Dr Mohammed provided a WorkCover NSW Medical Certificate bearing date 5 April 2012 and certifying that Mr Zaya suffered from acute lower back pain and soft tissue injury to his right hand. He was prescribed the anti-inflammatory drug Voltaren and referred for physiotherapy. He was to be reviewed on 13 April 2012 (Exhibit F; p. 33). Dr Mohammed certified Mr Zaya as fit for suitable duties from 5 April 2012.
3. The position of Energised Alliance was carefully framed in written submissions in the following way: … [Energised Alliance] cannot and does not admit that any fall occurred on 4 April 2012 or at all but was in no position to put to Zaya that it did not occur. (Outline Submissions p. 3 [13]). This in context should not be taken as a direct traversal, as it were, of the allegation. But I accept that Mr Zaya has thus been put to proof.
4. The circumstances relied upon as casting "doubt" on "the fact of the fall" are numerous. However, they seem to start with the proposition that nobody employed by Energised Alliance witnessed any fall. I interpolate that no one employed by Energised Alliance was said to have been present in the basement when the fall occurred by anybody. There is no reason why anyone employed by Energised Alliance should have been present in the basement then. And there is an issue between Mr Valletta and Mr Abunucerah as to when the fall was first reported to Mr Valletta on behalf of Energised Alliance. It must be said that in evidence, Mr Valletta made no bones about his suspicion that no fall occurred (365.20-40T), and his adamance that the fall was not reported until the following day (360.25-40T; 369.1-10T) which he seemed to regard as sufficient justification for his suspicion.
5. Other, perhaps more objective circumstances relied on by Energised Alliance include the failure of Mr Zaya to call Mr McElroy to corroborate his and Mr Abunucerah's evidence. It was submitted that a Jones v Dunkel inference should be drawn in that regard. Having accepted the evidence of Mr Zaya and Mr Abunucerah in this respect in preference to Mr Valletta's suspicions no possible Jones v Dunkel inference arises for consideration. I accept the direct testimony of Mr Zaya and Mr Abunucerah. My satisfaction on the balance of probabilities with their account does not depend in any way upon any inferential reasoning process.
6. It is said, however, that Mr Abunucerah and Mr McElroy apparently attended the pre-start meeting on 5 April, but must have failed to mention any injury because it is not recorded (Exhibit 1DG; p. 124). This inference depends upon the answers recorded at questions 2 and 5. Question 2 is: "Was it a safe shift yesterday?" And question 5 is: "Have we got any crew members that are recovering from injuries/restricted". The answer to question 2 was, "Yes - U-Take 5's done" (sic); and to question 5, "No". The difficulty however with acceptance of Energised Alliance's submission about this is that Mr Valletta made clear in evidence that he refused to record the report of Mr Zaya's injuries when reported to him by Mr Abunucerah because he did not believe the injury had occurred. This doubt was based upon his knowledge that Mr Zaya had suffered a previous back injury in July 2011, and what he regarded as the late report on 5 April. The former reason is somewhat illogical: a worker may suffer a second injury; and the latter, inconsistent with my preference for Mr Abunucerah's evidence about when he first reported Mr Zaya's fall to Mr Valletta. The probabilities are that had it been mentioned at the pre-start meeting he would have declined to record it on his notes of the meeting (365.20-40T; 366.10-15).
7. It was also put that there is "doubt as to whether Mr Zaya was at work" on 4 April 2012. His name and signature do not appear on the pre-start meeting notes (Exhibit 1DG p. 124). Although his name appears on the Attendance Registrar (Exhibit 1DG p. 142), the entry is unsigned and the column for insertion of his employer's name is left blank. However, he is shown as having arrived at 7 am, and as leaving at 4 pm. It's also obvious that in the first column each worker prints his or her own name. Some emphasis was placed upon the consideration that in cross-examination (150.10 - 151.6T), Mr Zaya was unable to say why the "signature" and "company" columns had not been filled in and he was not "a hundred percent sure" that the handwriting of the completed details was his. But I am satisfied that on balance the handwriting is his. The handwriting at line 5 for his attendance on 2 April 2012 looks very similar to that on 4 April as does line 7 on 3 April 2012. He was clearly absent on 5 April 2012 when he saw Dr Mohammed and his name does not appear on the attendance register at all.
8. Finally it's said that there is some doubt about whether Mr McElroy was a witness because he is not nominated as such on the incident report completed by Mr Abunucerah (Exhibit 1DG, p. 144). Only Mr Abunucerah's name is listed as a witness and in the narrative of the incident (Exhibit 1DG, p. 145). Mr Abunucerah refers to only Mr Zaya "and myself" accessing the basement. However, in his statement, (Exhibit 2DC), Mr Abunucerah referred to Mr Zaya, Mr McElroy and himself "going downstairs to inspect the section in the basement" ([12]). It was expressly put in cross-examination on behalf of Energised Alliance that Mr McElroy was with Mr Abunucerah when he and Mr Zaya were walking down the stairs (439.25T). Whatever doubt legitimately arises out of the incident report form, I am satisfied on the balance of probabilities that Mr McElroy was present.
9. For these reasons I find that Mr Zaya injured himself when he fell from staircase 3 at around 3 p.m. on 4 April 2012 in the course of his employment with the employer.

The state of the formwork on 4 April 2012

1. A central question of fact going to the liability of each of the defendants is what was the state of the formwork on staircase 3 on the afternoon of 4 April 2012. Unless I am actually satisfied on the balance of probabilities that the riser shutters had been stripped from all but the two steps complained of by Mr Zaya on the lower flight of the staircase, it is difficult to see how any question of negligence of either defendant arises. That is not to say that either or both would necessarily be negligent were I satisfied that Mr Zaya had established these facts. Rather, I am of the view that this is what might be referred to as an indispensable primary fact for Mr Zaya's case on negligence. I say this because it is common ground that experienced concrete-workers are able to safely negotiate fully formed-up staircases by exercising due care for their own safety, and commonly do so. I infer that due care essentially consists of keeping a proper lookout as is necessary for anyone descending any stairs. As I have said already the proffered explanation for Mr Zaya's fall is not that he failed to keep a proper lookout, or that he descended the staircase, as he did, without availing himself of the temporary handrail affixed on the open side of the staircase. Rather, the explanation is said to be the unexpected presence of the protruding riser shutters on the face of two steps on the lower flight. These riser shutters (it may be put in various ways) broke Mr Zaya's gait causing him to lose balance, or lose his footing, or slip and fall down the stairs. It is unnecessary to attempt to be too precise about the mechanism of Mr Zaya's fall. Falls by their nature tend to be sudden, unexpected and due to the interaction of competing laws of physics. The person who has fallen is generally unable to give a clear and comprehensive account of what happened beyond simply saying they slipped, tripped or stumbled: Morawski v State Rail Authority (1988) 14 NSWLR 374 at 386B-C. As I have said, these simple statements explain part only of something more complex in a bio-mechanical sense.

Mr Zaya's evidence

1. In his second evidentiary statement (Exhibit C, 14 March 2018) ([51] - [87]), Mr Zaya said that Mr Abunucerah came to him when he was in the lunch room and asked him to accompany Mr Abunucerah to the basement to discuss further work. Walking towards the access stairs they came across Mr McElroy who was also directed to join them. Mr Zaya said as they approached the stairs it looked as though "all the formwork on the stairs had already been removed, as usually happens". I interpolate he was of the view that by the date of his accident, the concrete would have acquired its "desired strength". It was usual practice to remove all of the formwork at the one time. On this staircase that work would take no more than two hours, according to Mr Zaya and Mr Valletta agreed.
2. Mr Zaya did say (Exhibit C [55]) that the temporary timber handrail was still in place. As it appeared all of the formwork had been removed it was unnecessary to use it. From the appearance of the upper flight of the staircase he "thought that all of the timber formwork had already been removed so it was easy to go down the stairs". As he crossed the mid-landing and approached the second flight of stairs he "could not see any timber on the stairs". He was not expecting there would be timber on the stairs because all of the formwork "is removed at the one time, with nothing being left on the stairs" (Exhibit C [66]). He then said (Exhibit C [67]): I began to walk from the landing down the second stage of the stairs. My foot landed on timber which was across the stairs just below the half-way landing. I lost my balance and I fell. When I fell I ended up landing on the basement floor. I went the whole of the rest of the distance down the stairs. When I got up from the basement floor I was in pain. [Mr Abunucerah] and [Mr McElroy] were holding me in order to assist me. When he looked up the stairs, he noticed two riser-shutters "on each of the first two stairs after you step off the half-way landing". He said that Mr Abunucerah remarked "how come they stripped and just left two?" And "what a stupid thing to do" (Exhibit C [71]). Mr Zaya said that Mr Abunucerah and Mr McElroy assisted him up the stairs and then returned to remove the remaining timber from the two steps.
3. Mr Zaya also said that he had not seen any of the PNT form workers on site that day. This is an additional factor which made him assume that the stairs must have been stripped. Given that he was the employer's site supervisor responsible, among other things, for supervising the employer's sub-contractor, PNT, when on site, it is surprising that he would have been unaware of whether, had they commenced to strip the formwork, they had completed the task before finishing up on 3 April 2012, or, for that matter 4 April 2012. Exhibit 1DG, p. 141 shows that there were eight PNT workers on site on 3 April 2012 including the "owner" of the business, Phillip (151.15-30T). Five of those workers had signed out of the site at 3 00 pm. Of the three remaining, one had signed off at 3 15 pm and two others had signed out at 3:30 pm. Mr Zaya had not signed out until 4:30 and Mr Abunucerah at the same time. Again it seems odd that Mr Zaya would not have known what task the sub-contractors he was required to supervise had been performing prior to finishing up for the day. Contrary to his evidence, there were four PNT workers on site on 4 April 2012, including Phillip, all of whom worked between 7 a.m. and 3:30 pm.
4. In cross-examination, Mr Zaya agreed, contrary to his statement that when they approached the top of the staircase to enter the basement the vertical formwork on the open right hand side of the stairs was in place (187.5T) and that this formwork ran "all the way down" (187.30T). He did not agree that the riser shutters were invariably removed first (188.15T). He did agree, however, that because the side formwork was in place "you couldn't know whether there were riser shutters still in place or not" (189.15T). In these circumstances, it was necessary to keep a lookout for the riser shutters as one descended. Any riser shutters still in place could be negotiated carefully (189.30T). As he commenced his descent he could see the formwork on the right-hand side and its timber braces (at 190.20T). I interpolate that the temporary handrail was also affixed to the formwork. But he did not know "whether there were riser shutters in the face of the stairs or not" (190.25T).

Mr Abunucerah's evidence

1. As I have said, Mr Abunucerah's evidence is partly contained in Exhibit 2DC, a statement signed by him on 7 March 2016. He said that Mr Zaya, who was in front of him descending the stairs, "probably tumbled over". He and Mr McElroy picked Mr Zaya up and walked him out of the basement using the same stairs. Mr Abunucerah said (at [13]), "As we walked up the stairs the claimant was slightly limping and Patrick and I had to assist him. On our way out of the basement … I noticed the formwork was still in place on the stairs". It is difficult to understand why he would not have noticed this on the descent.
2. I interpolate that Mr Abunucerah says that he, Mr Zaya, and Mr McElroy reported the accident to Mr Valletta straightaway after exiting the basement, on the same day (para. [14]). Mr Valletta was belligerent about their report when it was made. Mr Abunucerah also said (at [20]) that Mr Zaya "[was] fully aware that formwork was in place at the time of injury". Mr Abunucerah also said in his statement that "at the time of injury there was a temporary handrail down the side of the steps that was secured to the stairs formwork" (at [21], iii (p 5)).
3. (At [21], xii (p 8)) Mr Abunucerah said: "I … have no recollection of the removal of the formwork having been interrupted by Energise Alliance. The claimant would therefore have been fully aware at the time of the incident that the formwork was still in place". From this, there is nothing to suggest that only two riser shutters were in place when Mr Zaya fell.
4. As I have said, if there were only two of them, it is a little strange that Mr Abunucerah did not notice the riser shutters on the steps until his ascent out of the basement. After all, he and Mr McElroy must have walked over them to go to Mr Zaya's assistance. Annexure B to his statement (MFI 8) is a "plan" and "elevation" sketch depicting riser shutters on stairs. The elevation shows a riser shutter on two steps. This suggest, taken alone that only 2 riser shutters were in place as Mr Zaya had said. But when cross-examined Mr ASbunucerah that what he had drawn on MFI 8 "was as a sample", I understood only (448.5-10T). From this one would be reluctant to infer that he was attempting to depict what he noticed about the number of riser shutters in place on the staircase on 4 April 2012. In any event, the "plan" drawing depicts one riser shutter only, also said to be a "sample".
5. Mr Abunucerah gave evidence of a conversation with Mr Valletta in late March 2012 where he requested permission to strip the formwork because it was a trip hazard. At this stage, staircase 1 was not available for use because the suspended slab on the ground floor could not be used as a means of passage to access that staircase as it was in the curing phase (212.20-45T, Mr Zaya; 285.10-35, Mr Valletta). Mr Abunucerah said Mr Valletta (who denies this conversation occurred) refused permission because he remained concerned about the quality of the formwork (419.10-25T). As at the day of that conversation the whole of the formwork remained in position (420.5T). Mr Zaya had no recollection of being involved in this conversation, although he did not deny it (220.15-221.15T).
6. When asked about his observations of the riser shutters recorded in Exhibit 2DC in further evidence in chief, Mr Abunucerah explained that there were two steps out of the lower flight of stairs on staircase 3 that still had riser shutters in position (421.15T). He said, "There was no formwork in position when walking down the stairs normally" (422.25T).
7. When asked what Mr Zaya had said to him about how he came to fall, Mr Abunucerah said (423.30T): That it was stripped but the formwork was still in position. Two of the formworks were still in position. Then I said something along the lines, "that's pretty silly how come they're still there". Like if you strip the formwork you're meant to strip the whole thing, not strip it partially yes. When cross-examined about the content of the incident report completed by him (Exhibit 1DG, Tab 18) Mr Abunucerah agreed that he had said nothing about the stripping of the formwork being incomplete (444.45T). But he would not agree that the reason for that was "there was no formwork missing from the stairs" (445.5T). When cross-examined about his statements to the effect Mr Zaya was fully aware the formwork was in place at the time of the injury, Mr Abunucerah denied intending to convey that all of the formwork was still in place. He accepted the statement did not clearly state that "some only of the formwork was there" (451.35 - .40T).
8. Mr Abunucerah accepted that his statement appeared to say that all the formwork was still in place, but that was because he was working on the assumption that he staircase had only been poured 21 days before the accident. Now he appreciated that the stairway had been poured 35 days prior to the accident he was of the view that the formwork should have been stripped (453.5-30T). He denied that at the time of the fall "all the formwork was still in place on those stairs" (454.5T). Like Mr Zaya, he did not accept that the side formwork was always stripped before the riser shutters (455.10T).
9. When the cross-examination reached this stage it was necessary to adjourn the case for reasons that need not be rehearsed, and the cross-examination of Mr Abunucerah did not resume until 30 April 2018, some five weeks later. On the resumption of the cross-examination, Mr Abunucerah was asked about the necessary corrective action, presumably to obviate the hazard that materialised, he had described in the incident report form (Exhibit 1DG p. 145) in terms of "removal of formwork to staircase 3" by "11/04/12". He was unable to explain why he "would include a corrective action of removing formwork if all the formwork had been removed already". He said it could have been a reference to "the underside, maybe" (471.5T). And he could not recall having removed the riser shutters himself on 4 April 2012 (471.15 - .25T).
10. He agreed that it was "fair to say" that he did not now remember what formwork was on the staircase on 4 April 2012. He speculated that two riser shutters could have been left on the staircase "if there is any other formwork to an adjoining structure that they're using that kind of formwork as a support or as a bracket or adjoining; can happen". But he could not remember any such necessity in April 2012 (474.15-20T). His recollection of staircase 3 was "vague" (474.30T). But he had no recollection of why only two riser shutters should be left in place on staircase 3 (475.20T).
11. At the completion of cross-examination I asked this question (477.45T): If it was the case that the stairs had been stripped of formwork other than two riser shutters in the lower portion of the stairs, is there any reason why you or the men who work for you couldn't have stripped those two shutters yourself? That is to say, is there any reason why, if that that was all that was left in place, you'd have to call the form-workers back to do it? Mr Abunucerah answered: If, if it was like a, a bit like a trip hazard I would have taken it off myself, yes definitely. I don't have to call the form-workers to come back and remove it. No.

Mr Valletta's evidence

1. Mr Valletta's evidence in chief relating to the circumstances surrounding Mr Zaya's injury consisted of the incorporation of an unsigned statement that had been taken from him in about 2013, but which he had only read in late 2017 when a copy was forwarded to him by the solicitors for Energised Alliance. Subject to some minor changes, Mr Valletta said that the statement was true and correct to the best of his recollection (270.25-40T; 271.40-45T). As I have already pointed out, Mr Valletta was not an eye-witness to Mr Zaya's fall (which I have found occurred) and did not believe it had happened.
2. The unsigned statement was admitted into evidence as Exhibit 1DG, Tab 21, p. 153ff. On Mr Valletta's account, contrary to the evidence of Mr Abunucerah and Mr Zaya, the injury was not reported until 5 April 2012. Initially in cross-examination Mr Valletta appeared to accept that Mr Abunucerah might have reported the incident on 4 April 2012, but he could not recall it (297.5T). But later he became adamant that no such report had been made (360.25-40T; 364.25T; 369.5T). I prefer Mr Abunucerah's evidence that he went with Mr Zaya and Mr McElroy straight to Mr Valletta's office to report the accident on 4 April, more or less immediately after it occurred.
3. Mr Valletta's account recorded in his unsigned statement (Exhibit 1DG, Tab 21 [23] - [24], [27]) does not identify the staircase he said he inspected with Mr Abunucerah in terms of staircase 1 or staircase 3. Rather he refers to the north-western stairs. Some of this uncertainty was cleared up in cross-examination. It was established that the north-western staircase was the staircase upon which it is asserted that Mr Zaya fell (281.20T) and that that staircase was known as staircase no. 3 (282.50 - 283.1T). The general location of the staircase is depicted on the plan reproduced at Exhibit 1DG, Tab 14, p. 112 just below the upper most arrow depicted on that page viewed in landscape orientation. Some aspects of the construction of the staircase are depicted in photographs shown in Exhibit 2DB, 7 to 11 (283.20T).
4. From his description of his subsequent inspection recorded in the unsigned statement one could be forgiven for thinking that he must have been speaking of staircase 1 because he mentions no formwork, not even the side formwork which Mr Zaya and Mr Abunucerah say was in place. ( At paragraph [24]) Mr Valletta states: When I looked at the steps with [Mr Abunucerah], which was on the day, there was no objects in the way, no water ponding on the steps, nothing that could have caused [Mr Zaya's] fall (sic). (At Exhibit 1DG, p. 161 [27]) he also said: [Mr Abunucerah] pointed down, I think it was after the second landing, going down. He just said he slipped. I can only go on what [Mr Abunucerah] said, if [Mr Abunucerah] told me he was behind him, then obviously he would have seen him fall.
5. As I have said, from this I have formed the impression that Mr Valletta was inspecting a staircase which had already been stripped of all formwork given that he appeared to be looking for foreign objects, or puddles, that could have caused Mr Zaya to lose traction and fall. This is inconsistent with the other evidence that there was formwork on staircase 3 yet to be stripped involving the underside and side formwork, and a disputed number of riser shutters. It is important to bear in mind that I have pointed out already that staircase 1 was not able to be used to access the basement on 4 April 2018 because it was not permissible to cross the suspended ground floor slab which was in the curing phase.
6. Mr Valletta could not remember the conversation with Mr Abunucerah about stripping the formwork from staircase 3 in March 2012. He acknowledged that staircase 3 had to be stripped at some stage, obviously. He agreed he would have had to have had a conversation with either Mr Abunucerah or Mr Zaya about that (294.35 - .40T), but he could not recall "the exact conversation" (295.4T). Mr Abunucerah's account from what became Exhibit 2DC of the conversation about stripping the formwork from staircase 3 was put in detail to Mr Valletta who did not deny the conversation but could not recall it (295.10 - 296.5T). He could not recall that the formwork "surrounding staircase no. 3" remained in place (296.5-15T). He did say if there had been a complaint that the formwork was a safety hazard "there would have had to have been a hell of a reason for me not to strip it" (296.24T). He agreed that he could not recall when the formwork was stripped. I understand this to imply, and whether it was stripped before or after 4 April 2012.
7. Mr Valletta said that it was permissible for people to walk on a staircase within "a couple of days after it had been poured and while the formwork was still in place" (322.10-15T).

Was there an admission by silence?

1. In an earlier Judgment on 20 March 2018 (see [2018] NSWSC 388), I ruled that the evidence set out in paragraphs [73] to [77] of Exhibit C was admissible. The basis of its admissibility was that I was satisfied it would be open to me to find, if I accepted the evidence, that the material was an admission by conduct. When admitting the material, I said (at [26] - [28]): It seems to me that this more flexible test is applicable in these civil proceedings. I understand that the basis of the rule, according to the work of text‑writers, to be that it is part of human experience that persons who are conscious of their liability for some civil wrong will often, on being accused of the wrong, remain silent or answer evasively, or act in other ways, which may, according to human experience, Lord Esher's ordinary practice of mankind, and depending on all the circumstances, be treated as an admission, or where it is required, as corroboration. Silence may, in this context, imply assent to, or acquiescence in, what has been said, and the inference available to the tribunal of fact is that a denial would be expected by the party if the statement was false. It may be that silence is a sign of consciousness of civil liability. It is manifest that evidence of this type will more easily pass through the gateway of admissibility in a civil rather than a criminal case. And although admissibility says nothing about reliability or, for that matter, acceptance or acceptability, I am of the view that the passage in para 73 to 77 is admissible as a potential admission, from which an inference could (not necessarily would) be drawn, in the plaintiff's case, assisting him in making good his case on liability against the first defendant. It seems to me that if the evidence is true, then it is the very type of matter where one would have expected Mr Valletta to strongly deny the charge, given what may be taken to be the robustness which generally attends human relations on building sites. I directed, however, that the evidence should be given orally rather than in the written form in which it appeared in Exhibit C. I made that decision for the reasons I gave at [29] - [33] of my earlier judgment which need not be recited here.
2. In his evidence in chief on this topic (96.10 - 98.35T) Mr Zaya said that while Mr Abunucerah and Mr McElroy were removing the offending riser shutters immediately after his fall, he made his own way out of the basement and telephoned the PNT formworkers. It is to be remembered that on his account no PNT workers were on site that day. Having telephoned the number he had, the person who answered, who Mr Zaya did not identify, "gave me the person who was stripping the stairs, and I asked him, 'Well, you don't usually do that. Why did you leave the two stairs? Because I just fall down on them'". In response he was told that while they were stripping the formwork, Mr Valletta came and asked them to stop the stripping work, block the area and leave for the day. The implication is that this occurred on 3 April 2012.
3. Mr Zaya said he then went to Mr Valletta's office. He gave this evidence (at 97.35T): …. When I went in he saw me there, and he asked me, "What's wrong with you?" I told him I just fell down the stairs. He was reaction, excuse me, your Honour, he say, "Bullshit." After that I say, "I just talked to the formworkers. While yesterday they stripping the formwork, you came and stopped them from doing that and asked them to stop that, leave the area, [b]lock it, and just leave for the day." I ask him, "Did you ask the formworkers to do that?" He didn't answer whatsoever. He was sitting in one of these chairs, I remember the one twisted. (sic) The chair that twisted was a swivel chair. Mr Zaya continued (97.50T): When he didn't answer, I told them, "Rod, because of those steps, I just fall down. That's what happened." I say, "Has that happened?" He didn't say nothing at all. He looked at me once again, but he again looked away, …
4. Mr Zaya said that he went on to describe his accident to Mr Valletta and complained that he fell because of the presence of the two riser shutters which he could not see. He said Mr Valletta made no answer at all. Mr Zaya said that Mr Valletta could not look at him and turned his chair away. He said this was unusual behaviour (98.15T): Usually if I tell him something and he's right, or he wants to say something, because he's in charge that's naturally he will say something and answer back, or order to do something, and that's normal. He thought there may have been another male person in the room.
5. In cross-examination about this topic (192.5 - 193.15T), Mr Zaya agreed that his accident happened at 3 pm and that he "would have" made the phone call to PNT "at least by ten past three" and that after the phone call he went and spoke to Mr Valletta on his own. Mr Abunucerah was not with him. He was "clear on that … 100%, yes" (192.30T). He agreed that his conversation with Mr Valletta took place before 3:30 pm.
6. When challenged about PNT employees being on the site until 3:30 on 4 April 2012, Mr Zaya responded, "I can't remember at all". It was put that he had no reason to ring PNT because could have spoken to them on site. He said "I couldn't see no-one there at all". He rejected the suggestions that he did not speak to Mr Valletta and that the incident was not reported until 5 April 2012.
7. He agreed that if PNT had left the site without completing the stripping work he would have expected the stairs to be blocked off or a warning sign to be erected (193.15T).
8. Mr Valletta denied that any of this happened. He denied telling PNT formworkers to stop stripping the steps, block the area and leave. He denied ever telling formworkers on the Marrickville site to stop stripping stairs once they had commenced. He agreed ordinary practice was "once the stripping of formwork begins" it is completed and that "this was for safety reasons" (352.15 - 30T). When challenged about this topic in cross-examination (352.45 - 353.1T) he was firm in adhering to his evidence in chief.

Assessment of the evidence on the formwork issue

1. There are two related important factual issues concerning this state of the formwork on 4 April 2012, as I have already indicated. I have found that Mr Zaya suffered injury when he fell from staircase 3 at about 3 p.m. on 4 April 2012. The first remaining issue is what was the state of the formwork when Mr Zaya fell. In particular, had all of the riser shutters, bar two on the flight of stairs below the mid-landing been removed. The second issue is if staircase 3 was in the condition contended for by Mr Zaya, was it left in that condition because of the intervention, and direction, of Mr Valletta that the PNT formworkers stop work, block the staircase and leave the site. I observe that the only evidence supporting a finding favourable to Mr Zaya on that second issue is his own oral testimony which is only capable of establishing the fact if I accept that Mr Valletta made an admission by conduct. Otherwise Mr Zaya's evidence about the second issue is inadmissible hearsay.
2. The resolution of these issues depends, in part, upon my assessment of the reliability of the testimony of Mr Zaya, Mr Abunucerah , and Mr Valletta. All of these lay witnesses were asked, as is not uncommon, to give evidence of events which occurred some 6 years before the trial, and to give that evidence in quite some detail. The recollection of all was obviously affected by the lapse of time. I have therefore attempted to be guided by objectively determinable facts, contemporaneous documents (where available) and the apparent logic of events where the facts reliably supported by those considerations appeared to conflict with the unaided recall of the lay witnesses.
3. Energised Alliance argued that Mr Zaya's account of the condition of the formwork on staircase 3 should not be accepted. It did not mount a frontal assault upon Mr Zaya's credibility. Rather, Energised Alliance argued that Mr Zaya's evidence was, in the end: not supported by Mr Abunucerah; contradicted by Mr Valletta; shown to be internally inconsistent; shown to be inconsistent with other evidence including such contemporaneous evidence as was available; and inconsistent with the apparent logic of events. Energised Alliance contends that the preferable finding according with the evidence is that no formwork had been stripped from the stairs prior to 3 p.m. on 4 April 2012.
4. With respect, the plaintiff was not an easy witness to follow. He gave his evidence in English, which is not his first language, and his syntax and accent made his evidence, at times, a little hard to follow. However there was nothing about his demeanour which suggested in any way any overt dishonesty, and I emphasise he was not cross-examined on the basis that he was a dishonest witness. Nonetheless there were aspects of his evidence, including his evidence relevant to the putative admission by conduct which caused me to question the reliability of his account on these important factual issues.
5. Turning to written material prepared for the case, I have set out, or summarised the relevant parts of Exhibit C above. Of course that statement was signed on 14 March 2018, only 5 days before the commencement of the trial. A full account is contained in it, of course. But its late composition in the shadow of the trial deprives it of self-evident weight. Paragraph 6 of Mr Zaya's earlier Evidential Statement of 5 March 2018 (Exhibit 1 DJ), also prepared late in the day, says no more than: I was accessing the staircase 3 to enter a basement when I slipped down concrete stairs. There was no mention whatsoever of the unexpected presence of two remaining riser shutters as the cause of the fall; and nothing about the "admission".
6. In fairness the particulars of negligence at the foot of paragraph 6 of the original Statement of Claim filed on 24 June 2014 included the following: (vi) required and/or allowed the plaintiff to proceed down the concrete stairs with formwork still intact; (vii) failed to remove or strip the said formwork on the said stairs prior to requesting the plaintiff to proceed down the stairs; (viii) failed to remove timber formwork from the said stairs; … (xi) failed to advise the plaintiff the said stairs had not been stripped of all formwork; … (xiv) failed to provide stairs with adequate width for a safe foothold; Leaving aside the consideration that it is not the function of particulars to aver material facts, particulars (xi) and (xiv) are capable of accommodating the case now advanced. In a letter dated 14 August 2013 (Exhibit 1DG, Tab 2, p. 6), before the commencement of proceedings, the plaintiff's solicitors in answer to a question requesting particulars of how Mr Zaya's injuries were caused by the negligence of the first defendant contained this statement: We are instructed that the step on which our client slipped on was not properly stripped of its formwork (sic). It is alleged that the defendant failed to warn our client that the stairs were unsafe to walk on, failed to put up signs informing the unsafe nature of the stairs, failed to ensure the workplace was properly lit and failed to maintain a safe workplace. Lack of appropriate lighting is no longer pressed as a particular of negligence. The phrase "not properly stripped" may be taken as broadly consistent with Mr Zaya's key allegation about the riser shutters. But none of this material explicitly spells out Mr Zaya's case about falling because of two remaining and unexpected riser shutters. It was not until the amended statement of claim filed in court on 19 March 2018 that Mr Zaya's case is articulated in the form in which it was finally presented for determination.
7. I have also reviewed the medical histories that Mr Zaya provided to the various doctors. I acknowledge of course that the purpose of a medical practitioner recording a history is different from the forensic task confronting a court. That the treating doctors in this case have, by and large, simply recorded that Mr Zaya fell on the steps says nothing about whether he fell because of the unexpected presence of two remaining riser shutters on the lower flight of staircase 3. On the other hand, when he saw Dr James Bodel for a medico-legal assessment on 24 March 2014 (Exhibit A, p. 66). Dr. Bodel recorded a history which may be taken to be broadly consistent with Mr Zaya's case as finally articulated. Dr Bodel recorded that Mr Zaya stood on some timber he did not see. And Dr Schutz (Exhibit 1DA, p. 3) on 17 February 2015 recorded a history very like the account contained in Exhibit C. However giving full credence to these matters, it remains that there is no contemporaneous account provided by Mr Zaya that he fell because of the unexpected presence of two riser shutters. The earliest account broadly consistent, as I have said, is the letter providing particulars in August 2013, some sixteen months after the accident, and at a time when legal proceedings were clearly contemplated.
8. I formed a generally favourable impression of Mr Abunucerah as a witness. He seemed to be trying his best to give an accurate account of relevant matters so far as his recollection would permit. However it is relevant when assessing Mr Abunucerah's evidence that, apart from the initial incident report form (Exhibit 1DG, tab 18), the earliest written account made by Mr Abunucerah was Exhibit 2DC which was signed by him on 7 March 2016, nearly 4 years after the event. Moreover, during his evidence in chief he was given every opportunity to consider each paragraph of the statement separately and to detail any changes he wished to make. This process included providing him with access to 21 photographs Mr Abunucerah had taken during the project. He also made clear that he had had access to Exhibit C, Mr Zaya's Evidentiary Statement of 14 March 2018, in preparation for giving evidence. I do not criticise counsel, but the process of eliciting his evidence in chief (see eg 406.22-35T) was that Mr Abunucerah was shown the photographs, referred to his statement and asked whether, having considered that material, "there are some matters that appear in your statement … that are not correct". I think there is some force in the submission that the answer at 421.15T that there were two steps (only) that had plywood and formwork still in position may have been influenced by the contents of Mr Zaya's Evidentiary Statement prepared nearly six years after the event.
9. That Mr Abunucerah had recently read Exhibit C before giving evidence on 23 March 2018 may explain the apparent shift in his evidence between then and 30 April 2018 from being apparently definite that there were only two steps still fitted with riser shutters to being unsure about the condition of the formwork on 4 April 2012. As I have said there is no mention of the presence of only two unexpected riser shutters as a cause of Mr Zaya's fall in the incident report completed by Mr Abunucerah after the fall (Exhibit 1DG, Tab 18, p. 145). The narrative in the incident report states that Mr Zaya "slipped from the stairs and fell" without ascribing a cause to that occurrence. That narrative was completed and signed by Mr Abunucerah and Mr Zaya on 4 April 2012, inferentially in the immediate aftermath of the fall.
10. As I have indicated, Mr Abunucerah described proposed corrective action to obviate the risk of injury materialising again is in these terms: "Removal of formwork at staircase 3." That work was to be done by 11 April 2012, within one week of the incident, and under the supervision of Mr Zaya. There is no mention of the need to remove two offending riser shutters only. The strong impression I have formed from the whole of the evidence is what was proposed was the removal of all of the formwork on the staircase.
11. The acceptability of Mr Valletta's evidence was not assisted by the consideration that he had not seen the statement taken from him in 2013 until it was sent to him by Energised Alliance's current solicitors toward the end of 2017. Nor was the account recorded in it one apparently worthy of the weight that might otherwise be due to its relative contemporaneity by the consideration that it was unsigned. Mr Valletta's acceptance of it as accurate in the witness box during the trial really did not advance matters. His description of the staircase which he said he inspected with Mr Abunucerah on 5 April 2012, as I commented above, suggests a staircase that was entirely stripped of formwork. He does not mention any formwork and his comment to the effect that there was no foreign matter or pooling of water on the staircase interfering with its efficiency as a means of access to the basement is overall inconsistent with Mr Abunucerah's evidence and to some extent with Mr Zaya's evidence. I have made it clear that I do not accept Mr Valletta's evidence that Mr Zaya's injury was not reported to him until 5 April 2012. In this respect, I have accepted as preferable the evidence of Mr Abunucerah. Mr Valletta frankly admitted a lack of recall of matters Mr Abunucerah seemed quite sure about. And both Mr Abunucerah and Mr Zaya gave evidence that the formwork had not been completely stripped from staircase 3. Both accepted that formwork remained in place on the open right side of the staircase as one descended. This was braced by wooden braces affixed externally. Mr Abunucerah's evidence strongly suggests that the underside, structural formwork also was still in place. On one view, it perhaps could be said that Mr Valletta's evidence was consistent with an inspection by him after Mr Abunucerah and Mr McElroy had removed the remaining two shutters. However, the differences between him and Mr Abunucerah, in particular, persuade me that in most respects, other than in relation to matters where his evidence accords with known facts or with the testimony of Mr Abunucerah, it should be put to one side. There is an important exception to this discussed below (at [98]).
12. It remains therefore that there is simply no contemporaneous account of Mr Zaya's accident which supports the version for which he now contends that the steps had been stripped of all bar two riser shutters and that it was their unexpected presence on the lower flight of the staircase which caused him to lose his balance and fall. Not only is there no contemporaneous account of Mr Zaya confrontation with Mr Valletta on the afternoon of 4 April 2012, but the earliest document containing such an account is Exhibit C, I repeat, prepared for trial on 14 March 2018, five days before it was fixed to commence.
13. Such contemporaneous documents as are available include the pre-start meeting notes (Exhibit 1DG, Tab 15, p. 120ff) from 29 March to 11 April. There appears to be a gap between 5 April and 11 April 2012. These records contain information on the work performed on the previous shift (did we achieve our plan on yesterday's shift?) and the work planned for the day (what is the plan for this shift?). None of the work described, albeit succinctly, makes any reference to stripping any formwork on staircase 3. The only reference to the basement is on 29 March 2012 where the following entry appears under item 3 dealing with suggestions for improving safety: Utalise (sic) newly installed D.B. on suspended slab - not from basement. I am unsure what the initialisation D.B. stands for, but generally one garners the sense that something is to be done at ground level from the suspended slab and not from the basement.
14. The notes for 3 April 2012 (Exhibit 1DG p. 122) record that on the previous shift the southern steps were poured (I understand these to be at ground level). The plan for the current shift was "steel works to control room" and "complete earthing - earthing inspection". I understand the former entry to be referring to the placement of reinforcing steel for the construction of the control room on the ground floor. I do not understand there to be evidence about where the earthing works were to take place. The photographs certainly depicted electricity machinery at ground level. The point is, however, that there is no reference whatsoever to stripping formwork from staircase 3.
15. The notes for 4 April 2012 (Exhibit 1DG p.123) indicate that the steel for the control room was now ready for a concrete pour and that the earthing work had been completed. The plan for the current shift was to pour the control room floor with 50m³ of concrete and backfill certain conduits. Admittedly there is no obvious reference to the activity that Mr Abunucerah, Mr Zaya and Mr McElroy were intent on engaging in in the basement on the afternoon of 4 April 2012, which of course leaves open the possibility that only main tasks find their way onto the pre-start meeting notes. However, the general note for the achievement of the previous days objectives includes "yes - good productive shift". There is no mention of any stripping of the formwork from staircase 3 or any need to discontinue it.
16. All of the work described in the pre-start notes over the period leading up to 4 April 2017 is part and parcel of the concreting and ancillary works which were the subject matter of the employer's contract which it had in turn sub-contracted to PNT. There is no reason to suppose that the employer's workers and PNT's work were not fully engaged in the performance of this work.
17. There was an ongoing issue at the trial about the absence of records. As I have already pointed out the records are self-evidently not complete. This was pursued as an issue about which one might be suspicious of Mr Valletta's motives. Non production of records often generates much heat in the course of litigation. However, the probable explanation of there absence is that they were not extracted and preserved for the purpose of the litigation because initially they were thought unimportant. It may also be that the standard of record keeping was not punctilious. I am not persuaded this issue should make me suspicious of the motives of any party to the proceedings on either side of the record.
18. It is evident that no completed inspection check sheet for staircase 3 has been produced by either Energised Alliance or the employer. Energised Alliance point to the consideration that the sample sheets in evidence contain the employer's name and logo to suggest that I would have expected the employer to produce the record rather than Energised Alliance. I am not persuaded by this argument. It is clear that the form required input from both Energised Alliance and the employer. The sample at Exhibit 1DG, Tab 12, p. 106 - 7 demonstrates this. I infer a copy of each check sheet ought to have been retained by each of them to evidence compliance with the contract. One would have equally expected Energised Alliance to be in the position to produce the relevant inspection sheet which may have shown the date of completion of the formwork stripping work on staircase 3; or if not, the date upon which that work was inspected in any event. I am not of the view that the failure of the employer to produce this document provides a foundation or occasion for the drawing of any kind of Jones v Dunkel inference favouring Energised Alliance.

Findings of fact

1. I am not satisfied on the balance of probabilities that when he commenced to descend staircase 3 at about 3 p.m. on 4 April 2012 that staircase had been stripped of all riser shutters barring two on the lower flight. Nor am I satisfied that the staircase had been left in that condition on the afternoon of 3 April 2012 when the PNT workers finished work because of the intervention of Mr Valletta directing them to stop work, block the staircase, and leave the site. I am not satisfied that after he fell, and in the absence of Mr Abunucerah and Mr McElroy, he telephoned a PNT worker, was put onto another worker from whom he had received the information that work had ceased the previous day before the task was complete. I am not satisfied that there was any confrontation between Mr Zaya and Mr Valletta in Mr Valletta's office on the afternoon of 4 April 2012 where those allegations were put to Mr Valletta by Mr Zaya in circumstances where human experience would suggest that had that confrontation occurred, Mr Valletta would have strenuously denied the allegations if they were not true. I am not satisfied that any confrontation between Mr Zaya and Mr Valletta in the absence of others occurred.
2. In my judgment the preferable view of the state of the formwork on 4 April 2012 is that stripping had yet to commence and the vertical surface of each of the steps remained covered with a riser shutter. I am satisfied that, notwithstanding the lapse of time since the staircase was poured (35 days), the stripping work had yet to commence because of the demands of other work on the surface including pouring the suspended slap, installation of staircases and the preparatory work for the construction of the control room on the site.
3. In coming to these conclusions I have been influenced by the absence of any contemporaneous record supporting the detail of the plaintiff's case. As I have pointed out such contemporaneous records as are extant do not support it. The pre-start meetings have no record of the commencement, cessation or completion of any formwork stripping on staircase 3. Mr Abunucerah's incident report which was, on the face of it, partially completed on 4 April 2012 and finalised on 10 April 2012, contains no statement of fact suggesting that the condition of the formwork was as described by the plaintiff. Some of these facts have already been emphasised, but on page 1 (Exhibit 1DG, p. 144) there is a requirement to provide details of the accident. Those details are: Access staircase 3 to enter basement, slipped from the stairs and fell backwards sliding down. The same page makes provision for a description of "immediate corrective action". The description give is: Stopped work - picked (Mr Zaya) off ground and requested (him) to sit. No external injuries were noted. (My interpolations) Nothing is said of stripping the offending riser shutters.
4. Page 2 of the form (Exhibit 1DG, p. 145) makes provision for recording details of any investigation carried out and its results. There is no suggestion that Mr Abunucerah found the cause of the accident was the presence of two riser shutters which had not been stripped when the other riser shutters were stripped. As I have said, the Incident Report did not ascribe any cause to Mr Zaya's fall other than he "slipped from the stairs".
5. I have borne in mind that the simple statement to the effect that he slipped from the stairs may well be an adequate explanation for what happened to Mr Zaya without the need to search for any further elaboration. The law of negligence recognises that "stairs are inherently, but obviously, dangerous": Wilkinson v Law Courts Ltd [2001] NSWCA 196, Heydon JA (as his Honour then was). And as Handley JA observed in Stannus v Graham (1994) Aust. Torts Reports 81 - 297 at 61,566: Persons using steps may misjudge their footing and slip or trip, but this is an everyday risk which members of the public avoid by taking care for their own safety. In this regard it should be borne in mind that staircase 3 was fitted with a temporary handrail which Mr Zaya chose not to use because he considered it unnecessary having regard to the condition of the stairs when he commenced to descend them. It must also be borne in mind that although the presence of riser shutters may create an additional hazard for the uninitiated, they were a feature of staircases under construction with which experienced concrete workers were familiar. They were accustomed to exercising ordinary care for their own safety when negotiating staircases in that condition.
6. I fully accept that had staircase 3 been in the condition described by Mr Zaya then the presence of two only riser shutters would have been unexpected by him and, for what it is worth, by an experienced worker in his position. Their presence for this reason may have created an additional hazard on staircase 3. But these are not the facts as I have found then. The inherent and obvious danger presented by staircases generally is an important part of the "apparent logic of events" to be considered when deciding disputed questions of fact; especially when lay witness testimony is given, necessarily, so long after the event: Fox v Percy (2003) 2014 CLR 118; [2003] HCA 22 at [31].
7. Other matters falling to the category of the "apparent logic of events" include the consideration that had PNT workers commenced to strip staircase 3 the direction to do so would have emanated from the employer through Mr Abunucerah and Mr Zaya. As Mr Zaya remained on site on 3 April 2012 after the majority of the PNT workers had left for the day, and he was the employer's site supervisor, one would have expected that he would be aware that work had ceased before the completion of stripping, even if not necessarily so. On his account, however, his accident happened about 24 hours later and I find it difficult to understand why it would not have come to his attention either by report from PNT employees, at the pre-start meeting (if he was present) or otherwise before he entered the staircase on the afternoon of 4 April 2012.
8. Especially because of what the pre-work statements say about the work program around 4 April 2012, no persuasive reason has emerged at all in the evidence for Mr Zaya, or anyone else, diverting PNT workers from other work to stripping the staircase or, if they were already involved in that process, for directing them to cease. The idea that perhaps two remaining riser shutters provided some bracing for the other lateral formwork which remained is thoroughly unconvincing. As I have sought to demonstrate above, it arose out of Mr Abunucerah's evidence on the second day of his cross-examination and really amounted to no more than speculation. I accept, however, given that Mr Zaya and Mr Abunucerah agree about this, that one does not necessarily strip the riser shutters first when stripping formwork from a staircase. However, their evidence about this is not entirely logical if one considers that the riser shutters are affixed to the lateral formwork. One might have thought it logical that they should be removed first; otherwise they would be left simply standing on their own weight after prior removal of the lateral formwork. Still, I am prepared to defer to the experience of workers in the field. It remains no logical reason for leaving two in place was ever articulated by reference to the exigencies of the work being performed on this site at this time.
9. It is to be borne in mind that the alleged direction by Mr Valletta to the PNT workers was to stop work and block the staircase. It is manifest that Mr Zaya, Mr Abunucerah and Mr McElroy were able to access the staircase without removing any "blocking" of any kind. Again, there is no explanation arising in the evidence why, if the PNT workers obeyed Mr Valletta's direction to cease work, they at the same time disobeyed his direction to block the staircase. Negligence may provide an explanation for this, but there's no particular reason to jump to that conclusion. It seems more likely that had the PNT workers stripped most of the riser shutters before being instructed to stop work, given that this was contrary to practice, they would have put up some tape or some other material to "block" the top entrance to the staircase. But on Mr Zaya's case, apparently, that was not done.
10. Moreover, if a direction to cease work is the explanation for the presence of only two riser shutters, why did Mr Zaya encounter them where he did, near the top of the lower flight? Surely if PNT workers were approaching the task in a methodical way, they must have started from either the top or bottom of the staircase, in which event the unfinished work would have been at the opposite end and not close to the midpoint. I suppose a possible answer is that two workers or two groups of workers started at opposite ends of the staircase and were working towards the middle when the direction was given. All of this, of course, is speculation, but highlights unanswered questions about the logic underpinning the plaintiff's case.
11. The speculation I have just referred to could all have been dispelled and clarified by evidence from PNT workers. Their evidence may have filled other apparent gaps in Mr Zaya's case. As I have said, eight of them were on site on 3 April 2012 including the business "owner", Phillip. Four of them were on site on 4 April. PNT is not a defendant and none of its workers were called to give evidence at the trial. It should be borne in mind that apparently, as at least 4 April 2012, Mr Zaya had a phone number by which he could reach the workers directly. There is no evidence explaining the absence of anyone from PNT to give evidence about what happened in relation to stripping the formwork, if anything. I am of the view that it is appropriate in this instance to draw the inference that evidence from the PNT workers would not have advanced the plaintiff's case, a consideration favouring the competing inference contended for by Energised Alliance that the formwork on staircase 3 was completely intact when Mr Zaya fell on 4 April 2012.
12. A potential factor favouring Mr Zaya's case is the consideration that as at 4 April 2012, the formwork had been in place for 35 days. This seemed to be a matter which influenced Mr Abunucerah's evidence, on the first day of his cross-examination, favouring the plaintiff's case, that there were only two riser shutters in place. 35 days is a long time in his assessment to leave the formwork in place. I formed the impression from his evidence that 28 days was the outer limit of the period during which formwork needed to be left in place. By the expiration of 28 days concrete has achieved its maximum strength. At the same time Mr Abunucerah contemplated that the structural formwork might yet remain in place after the riser shutters had been removed. Indeed on all of the evidence, the formwork was not completely stripped because the side formwork was in place and it follows that the underside formwork, the structural formwork was likewise in place. In any event, there are three factors which suggest that the formwork in fact was left in place for a period of in excess of 5 weeks. First, from the pre-start meeting notes, the photographs (Exhibit 2DB) and the cross-examination of Mr Valletta on behalf of the employer, Mr Valletta was implementing a very busy program involving the performance of new works during the period. Secondly, the evidence of Mr Abunucerah, which I accept, of his conversation with Mr Valletta seeking permission to strip the formwork sooner and meeting with a refusal. This, to my mind, suggests the need for a positive instruction to commence the stripping of the formwork on staircase 3, structural or not, following this conversation, of which there is no evidence. Thirdly, the statement in Mr Abunucerah's Incident Report that the formwork was to be stripped by 11 April 2012. This suggests that the formwork remained in place not only as at 4 April 2012, but probably as at 10 April 2012 when the Incident Report was finally completed.
13. Mr Abunucerah's evidence on the second day of his cross-examination that he simply could not recall the condition of the formwork on 4 April 2012, not only undercuts his evidence that only two riser shutters were in place on the steps, but also suggests that there was nothing unusual about the condition of the formwork on 4 April 2012. Naturally, the statement that he could not recall the condition of the formwork could readily be accounted for by the lapse of six years between the accident and his giving evidence. On the other hand, his lack of recall does rather support submission made on behalf of Energised Alliance that his having read Mr Zaya's statement recently before giving evidence influenced his evidence on the first day in a way which had dissipated by the second.
14. I did not find Mr Zaya a wholly unsatisfactory witness. However, as I have already pointed out, he suffered the same disadvantage as the others when one considers the lapse of time, notwithstanding his greater involvement in the circumstances as the plaintiff and as the person who has lived with his injuries over those years. Sometimes, however, these factors can have an influence, even subconsciously which depreciates the reliability of recall. His evidence was not assisted by the consideration that there was no contemporaneous account from him which explicitly recorded the critical aspects of his evidence going to liability about the condition of the formwork and the involvement of Mr Valletta. The particulars provided by his solicitors in August 2013, as I have said already, are broadly consistent with the idea that only two riser shutters were present, that is to say, that the formwork had been incompletely stripped. However, even that account is 14 months later, when the medical evidence shows that the plaintiff had been through a great deal of pain and consequent psychological symptoms such as anxiety and depression, which may have had an effect on the reliability of his recall. I need to repeat that there is nothing in any of his accounts before 14 March 2018 that supports the evidence he gave about his confrontation with Mr Valletta. There is much in the evidence which suggests that that confrontation simply could not have occurred. The first point, of course, is that the PNT workers were on the site at the time he says he fell and at the time he says he had his confrontation with Mr Valletta, before 3:30. They readily could have been approached by him on site about the condition of the formwork. Mr Abunucerah's evidence is that he, Mr Zaya and Mr McElroy all went to see Mr Valletta together to report Mr Zaya's fall in its immediate aftermath. Mr Valletta's superior, according to Mr Valletta and Mr Abunucerah, was probably also present at the time of Mr Abunucerah's report which may explain Mr Valletta's robust rejection of it. Mr Valletta's rejection of Mr Abunucerah's report with the word "crap" is very, very similar to Mr Zaya's account of his rejection of Mr Zaya's separate report with "bullshit".
15. More fundamentally the only "account" of Mr Valletta instructing PNT workers to cease work, block the staircase and leave the site is an entirely impermissible hearsay account from an unnamed PNT worker that was admitted only for the purpose of providing context to Mr Zaya's direct evidence of his confrontation with Mr Valletta. Mr Zaya had no direct knowledge of those alleged circumstances. His recounting of them to Mr Valletta, if that occurred, does not elevate them into direct evidence of the fact other than by the putative admission by silence for which Mr Zaya contends. I am of the view that the evidence of the confrontation is inconsistent with other established facts and I am not persuaded that I should accept it.
16. I should add, that although I have been approaching Mr Valletta's evidence for reasons I have given, with caution, given what I have said about the other circumstances which support his denial that any instruction was given to PNT employees to cease work and that any confrontation between him and Mr Zaya occurred on the afternoon of 4 April 2012, on these topics I accept Mr Valletta's evidence.
17. The plaintiff has not proved his case about the condition of the formwork or about how it came to be in that condition to my satisfaction on the balance of probabilities. To my mind, the evidence establishes the probability that the formwork was wholly intact and unstripped at the time of the plaintiff's accident. As described in the incident report, Mr Zaya simply slipped and fell as he was descending the staircase. It is the ordinary experience of life that such falls can occur without negligence on the part of anyone responsible for the construction or maintenance of a staircase. Moreover, that such an inherent and obvious risk materialised in this case is supported by the considerations that Mr Zaya agreed that: he was not taking particular notice as he descended the staircase (170.20 - 33T); he was not looking down at his feet (171.27T); he would have had no trouble negotiating riser shutters if he was aware they were there (173.12 - 18T); and had he used the handrail, he could have saved himself from falling (175.26 - 29T).

Legal considerations - the liability of Energised Alliance

1. Given that I have rejected the central planks of Mr Zaya's case on liability, namely staircase 3 had been incompletely stripped of formwork so that only two riser shutters remained on the lower flight of the staircase and that the staircase was left in that condition in obedience to a direction given by Mr Valletta, Energised Alliance's site supervisor, it is difficult to see how Mr Zaya can succeed in a case against Energised Alliance framed in negligence. This is because the duty of principals to independent contractors and their employees has been settled by the decision of the High Court of Australia in Leighton Contractors Pty Ltd v Fox. The duty is more limited than the duty an employer owes to its employees. The existence of the duty and its nature, content or scope was expressed in the Court's judgment in Leighton Contractors in the following terms (at [20]): The duty of principals to independent contractors. The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe. The principles were explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd: An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility. (Footnotes and citations omitted).
2. Further, while the strict observation by Energised Alliance through Mr Valletta of its obligations under occupational health and safety legislation, in this case Work Health and Safety Act 2011 (NSW), may have "relevance to determining the existence and scope" of a duty of car, it is necessary to exercise caution in translating those obligations "into a duty of care at common law" because "all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden": Leighton Contractors at [49]; s 12A and s 267 Work Health and Safety Act 2011 (NSW). For this reason, that Mr Valletta regarded site safety as an issue of priority and that he was punctilious in reminding all workers on the site at the pre-work meetings of the need to observe the "U-Take-5" risk assessment technique and checked that workers were donning the appropriate personal protective equipment for the task at hand did not in the circumstances of the case extend the nature and content of Energised Alliance's duty beyond that described in Leighton Contractors at [20].
3. I accept that Mr Valletta had obligations in relation to liaising with and co-ordinating the activities of various contractors on site which occupied a good part of his working day. However, the circumstances of Mr Zaya's accident, as I have found them to be, did not arise out of confusion about areas of responsibility between contractors. On the facts I have found, Mr Zaya slipped and fell on staircase 3 which had been constructed under the employer's contract with Energised Alliance, which the employer in turn had sub-contracted to PNT. The construction, and condition, of the staircase was an area wholly within the employer's control through the supervision it exercised over PNT. It is not suggested it was unreasonable for Energised Alliance to contract its construction to the employer nor for the employer to sub-contract with PNT. There is no suggestion in the evidence that either the employer or PNT were not competent to control their own systems of work, or that it was necessary in relation to the construction of staircase 3 for Energised Alliance to retain and exercise a supervisory power. Even if one assumes negligence on the part of either the employer or PNT in the construction of staircase 3, Energised Alliance is not liable for its consequences. I will deal with the question of negligence of the employer below.
4. Had I been satisfied that Mr Zaya had established the case he sought to make, my decision about the scope of Energised Alliance's duty would have been different. Had it been proved that Mr Valletta directed PNT to discontinue the work leaving only two riser shutters on the lower flight of the staircase, it could be said that Energised Alliance, by Mr Valletta's direction, had created the risk of injury that materialised. That risk may be categorised as the risk that a person descending the staircase which had been apparently stripped of formwork would lose his balance or otherwise fall on the unexpected hazard of the protruding timbers of the riser shutters which altered the length of the goings on the steps to which the formwork was attached. Such a circumstance, in my judgment, would have been caught by Brennan J's (as the Chief Justice then was) statement in Stevens v Brodribb, "The entrepreneurs duty arises simply because he is creating the risk" even if "his duty is more limited than the duty owed by an employer to an employee". However, questions might yet arise about negligence given that the instruction which Mr Zaya said had been given to PNT workers included the requirement that the staircase be "blocked". I take this to mean that the staircase was to be taped off or access to it otherwise denied until the remaining riser shutters had been removed. The staircase was clearly not "blocked" and primary responsibility for this must surely rest with PNT. I suppose, it's possible that Mr Valletta, given the risk he was creating, should have made a visual inspection to see that his directions had been complied with.
5. If I am wrong in saying that the risk of a worker in Mr Zaya's position falling from the staircase in its actual condition on 4 April 2012 was beyond the scope of Energised Alliance's somewhat limited duty of care the question of its negligence would fall to be determined in accordance with the provisions of the Civil Liability Act 2002, and in particular Part 1A. The risk arising from the circumstance that none of the formwork, including the riser shutters, had been stripped from staircase 3 when Mr Zaya, Mr Abunucerah and Mr McElroy commenced their descent is the inherent and obvious risk of slipping, tripping or stumbling and falling from a staircase. This risk is clearly foreseeable within the meaning of s 5B(1)(a) CLA.
6. However, in its defence to the Amended Statement of Claim filed in court on 19 March 2018 (filed on 20 March 2018), Energised Alliance pleaded, among other things, "any risk of injury to the plaintiff was an inherent risk as defined in s 5I" CLA. That section defines an inherent risk as "a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill." The risk of falling from a staircase fits the description of one that cannot be avoided by the exercise of reasonable care and skill on the part of the person responsible for the staircase. The risk that materialised in this case falls within that description. On the facts as I have found them to be there was no added or additional risk of an unexpected kind. There was no incomplete stripping of the formwork. Nor was there any evidence of any foreign matter lying on the step from which Mr Zaya fell, for which Energised Alliance might be responsible, or at all, interfering with its efficiency as a safe means of passage from the ground floor to the basement level. In my judgment, Mr Zaya's fall was the materialisation of an inherent risk and Energised Alliance is not liable in negligence for the harm suffered by him.
7. If I were wrong about inherent risk, I would be satisfied that the risk was not insignificant. The risk of falling from the stairs is not one of which it can be said that it is very unlikely to occur. And if such a risk materialises, the harm suffered may well involve serious injury or even death.
8. The final statutory condition is that imposed by s 5B(1)(c) concerned with the precautions a reasonable person in Energised Alliance's position would have taken. Because Mr Zaya's case focused upon the factual basis for liability which I have rejected, there was no argument put forward on the alternative basis that Energised Alliance was negligent in permitting Mr Zaya to descend the staircase notwithstanding the known presence of formwork. Indeed as I have pointed out, it was common ground amongst all the parties that in the case of experienced concrete workers there was no risk, over and above the inherent and obvious risk, in them descending the staircase bordered by formwork including riser shutters. It was not said for instance that steps should have been taken to withdraw the staircase from service until the formwork was stripped. The only concern was the curing of the concrete steps themselves, and even then they could be walked on after "a couple of days".
9. I am not satisfied that, on the assumptions I am making for these contingent findings, that any precaution on the part of a person in the position of Energised Alliance was called for. Although the risk was foreseeable and not insignificant, it was the type of risk with which an experienced concreter was familiar. The risk of falling from the staircase from which formwork had not been stripped was one that experienced concreters were accustomed to avoiding by the exercise of ordinary care. In my view, the case falls into the category dealt with in the joint judgment of the High Court of Australia in O'Connor v Commissioner for Government Transport (1954) 100 CLR 225; [1954] HCA 11 at 230: It seems fanciful to treat the question as one to be gone into and decided by some superior officer, as distinguished from the workmen on the spot, and still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job. (See also Seage v State of New South Wales [2008] NSWCA 328 at [31] - [33]; Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177; [1961] HCA 3 at 180 - 181.)
10. If Energised Alliance's duty extended to the condition of staircase 3 as I have found it, I would not have been persuaded that it was negligent in the circumstances giving rise to Mr Zaya's injuries.

Legal considerations - the liability of the employer

1. The second defendant, as Mr Zaya's employer, owed him the personal or non-delegable duty of care which, in Leighton Contractors at [21], the Court described as "a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom the duty is owed". In Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839, a unanimous High Court defined the nature, content and scope of the duty in these terms at [12]: An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work. (Footnotes omitted) In the case of the employer, therefore, there is no question of the existence of the duty or its scope. Nonetheless, it is important to bear in mind that O'Connor and the other cases I have referred to at [108] were employment cases. Even in the proper sphere of operation of this more stringent duty there are circumstances where the employer is justified in leaving the task at hand to the good sense, experience and judgment of the employee concerned. Especially when, as here, we are speaking of experienced, senior employees.
2. I should say for completeness that the questions of breach of the employer's duty are determined not in accordance with the CLA but under the general law: s 3B(1)(f) CLA. Accordingly, the assessment of questions of breach is to be made in the manner described by Mason J (as the Chief Justice then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at pp 47 - 48; RTA v Dederer (2007) 234 CLR 330 at [8], [65] - [68]. It follows from this that there may be cases in which the assessment of breach could produce a different result when the common law is applied rather than s 5B CLA. The real difference arises from s 5B(1)(b) and the requirement that the risk be "not insignificant". Several cases have remarked that this does not make much difference. And in most cases it will make no difference. But given that the inclusion of the s 5B(1)(b) requirement is a deliberate reform introduced to restrict, at least somewhat, the reach of the law of the common law of negligence there will be cases where the difference may be critical. However, this is not such a case.
3. Applying the general law, the risk of an experienced concrete worker falling from a constructed staircase from which formwork had yet to be stripped and which was fitted with a handrail remains an inherent and obvious one. It should also be borne in mind that safety work boots were part of the personal protective equipment that all workers on the site were required to wear, and did wear. In my judgment a reasonable employer was not required to take any particular precaution against the risk of an employee falling from staircase 3. Reasonable care required no more than leaving it to the good sense, experience and judgment of the experienced workers involved, including Mr Zaya personally, to descend staircase 3 safely.
4. If the facts had been as Mr Zaya contended for and Mr Zaya fell because of an unexpected hazard on staircase 3, the outcome may well have been different. In that circumstances and assuming fault on the part of either Energised Alliance, or perhaps PNT, the employer would be liable for breach of its non-delegable duty of care, for the reasons discussed by Mason P in TNT Australia Pty Ltd v Christie (2003) NSWLR 1; [2003] NSWCA 47 at [47]. His Honour said: The authorities … demonstrate that, in the realm of negligence, (a) a non-delegable duty of care will … be imposed on categories of persons regardless of personal fault on their part in the circumstances giving rise to the plaintiff's injury; but (b) the plaintiff must prove that damage was caused by lack of reasonable care on the part of someone (not necessarily the [employer]) within the scope of the relevant duty of care. The provision of a safe place of work is a clearly established aspect, and therefore within the scope, of the employer's duty of care.

Contributory negligence

1. On the findings I have made no question of contributory negligence arises. Again, it would have been otherwise had I accepted the plaintiff's principal case and found each defendant negligent in the manner I have discussed already on a contingent basis. I observe that the legal basis for the assessment of contributory negligence differs between Energised Alliance and the employer. In the case of Energised Alliance it would have been necessary to have regard to the provisions of Division 8 of Part 1A CLA and in particular ss 5R and 5S. In the employer's case, s 151N WCA is the governing law. Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) continues to apply in both cases, and in particular s 9.
2. Had Mr Zaya proved his injuries were caused or materially contributed to by the negligence of either defendant, I would have been of the view that he suffered injury partly as a result of that negligence and partly as a result of his failure to take reasonable care for his own safety. As discussed at the end of [99] above, Mr Zaya agreed that he was not taking particular notice as he descended the staircase; was not watching where he placed his feet; would have had no trouble negotiating riser shutters of which he was aware; and had he used it, the handrail would have saved him from falling.
3. Given that there are two defendants each of whom would have been negligent had I accepted the facts for which Mr Zaya contended, it is appropriate that I leave the question of apportionment until I make contingent findings about the cross-claims.

The cross claims

1. Obviously on the findings of fact I have made and the conclusions of law I have drawn based upon them, no occasion arises for making any order for statutory contribution under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and it will be necessary to dismiss each cross-claim in that regard.
2. Likewise as I will be entering judgment in favour of Energised Alliance, Mr Zaya's injury for which compensation is payable under WCA was not caused under circumstances creating a liability in Energised Alliance to pay damages in respect of the injury. Accordingly, the employer's claim for statutory indemnity under s 151Z(1)(d) WCA must be dismissed.
3. In any event on the contingent findings I have made, s 151Z(1)(d) would not apply as I would have decided that the employer was negligent by breach of its non-delegable duty: Public Transport Commission of New South Wales v J Murray-Moore (New South Wales) Pty Ltd (1975) 132 CLR 336; I&J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486; CSR Timber Products Pty Ltd v Weathertex Pty Ltd (2013) 83 NSWLR 466; [2013] NSWCA 49 at [43]; Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357 at [43]; Southwest Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; (2017) 327 FLR 110 at [172]. (The appeal to the High Court in the last-mentioned case in which judgment is currently reserved did not concern s 151Z(1)(d) WCA).
4. For the reason explained by Basten JA in Southwest Helicopters the employer cannot call in aid s 151Z(2)(e) because the alternative conditions for the special operation of s 151Z(1)(d) expressed in the opening words of paragraph (e) of s 151Z(2) have not been satisfied. The first alternative has not been satisfied because Mr Zaya did take proceedings against his employer, and the second alternative has not been satisfied because there is no judgment in respect of which Mr Zaya may accept satisfaction. Section 151Z(2)(e) gives s 151Z(1)(d) a partial operation only where both the employer and, here, Energised Alliance would be legally liable to pay Mr Zaya damages. In Southwest Helicopters at [48], Basten JA said: unless the opening words to par (e) are satisfied [the employer] has no entitlement to indemnity, given that it is liable to the plaintiff in damages.

Apportionment

1. Were it necessary to make a decision about apportionment for the purpose of fixing statutory contribution and reducing the damages to which Mr Zaya would otherwise be entitled for contributory negligence, I would have determined that question on the following basis: 1. Energised Alliance as to 70 percent; 2. The employer as to 20 percent; 3. Mr Zaya as to 10 percent.
2. I have taken into account the various statutory provisions I have referred to above and weighed and assessed the relative departure of each of the parties from the applicable standard of reasonable care determined in accordance with the statutory provisions referred to. I have also taken into account the causal potency of the relevant acts and omissions of each of them.
3. I have arrived at my determination on the assumption that Mr Zaya made good his primary case. On that basis, Energised Alliance created an unexpected and additional hazard on staircase 3. Given the industry practice that staircases are stripped of formwork in a single operation, it is not unreasonable to conclude that the hazard presented by the remaining two riser shutters was unlooked for and neither the employer nor Mr Zaya had any reason to suspect they may not have been removed until they came upon them. The employer had no actual knowledge of the condition of staircase 3 before its employees commenced their descent at about 3 p.m. on 4 April 2012. The employer would have been liable for breach of its non-delegable duty without personal fault on its part. However, it is just and equitable that it bears some responsibility as it should not be permitted to abdicate responsibility for the safety of its workers. It should have been in a position to know that it had not authorised the stripping of the formwork and therefore that caution might be required when descending the stairs because, common practice notwithstanding, it could not say whether all the formwork had been removed.
4. Mr Zaya must bear some responsibility for similar reasons, for failing to keep a proper look out and failing to use the temporary handrail.

Contingent assessment of damages

1. Less there be an appeal it is appropriate that I set out the damages I would have award Mr Zaya had he been successful on his claims against the defendants. In the circumstances, however, I consider it appropriate to express myself more briefly than otherwise may have been necessary. As I pointed out at the commencement of these reasons when outlining the issues, the most significant question relating to the assessment of damages is whether Mr Zaya suffers from a CRPS of his right arm as a result of the injury of 4 April 2012.
2. I also bear in mind that damages are to be assessed as against Energised Alliance under the common law as modified by Part 2 CLA. As against the employer they are to be assessed as work injury damages in accordance with the provisions of Div. 3 of Part 5 WCA. For that purpose it is common ground that the injury has resulted in a degree of permanent impairment of Mr Zaya that is at least 15 percent and the threshold condition in s 151H is accordingly satisfied.

Background

1. The plaintiff was born in Mosul, Iraq in 1971. He was 40 when the accident occurred and is now 47 years old. He left Iraq for Turkey in 1990. He migrated to Australia in 1992 and settled initially in Melbourne before moving to Sydney in 2003. He was married at one time, but is divorced and is estranged from the children of his marriage.
2. At the time of his injury he was living in Sydney's east in a home unit with his sister who operates a café business. He seems to have had a reasonable industrial record in Australia working in various occupations including as a spray painter and, during the years leading to 2012, in the construction industry as a concreter. As I have indicated as at 4 April 2012 and since November 2011, Mr Zaya had been working in a supervisory capacity. Prior to the injury he was a fit man, running three times per week and engaging in canoeing and abseiling.
3. Mr Zaya injured his sacro-coccygeal region in 2010 while abseiling when the rope broke and he landed on his tail-bone. He suffered a back injury on 4 July 2011 while working for the employer at Muswellbrook. He was then engaged in physical concreting work. He underwent physiotherapy treatment.
4. As I have said, he first consulted his GP Dr Mohammed about the subject injury on 5 April 2012 complaining of back pain and right hand pain. Given the supervisory nature of his work he was able to return to work after seeing the doctor on light duties and he continued to work at the Marrickville site until he ceased work in either August or October 2012. He continued to seek medical treatment while working. An MRI of his lumbar spine revealed degenerative changes without disc protrusion. He continued to complain of symptoms affecting his right hand and arm.
5. Mr Zaya was reviewed by Dr Andreas Loefler, an orthopaedic surgeon, on 19 July 2012. Dr Loefler concentrated on his back. A bone scan, on his referral, showed very minor facet joint changes, but no fracture. From the point of view of the back injury, Dr Loefler then thought there was no major problem and encouraged Mr Zaya to return to normal activity.
6. Mr Zaya was referred to Dr Stuart Myers, a hand and wrist surgeon, whom he saw on 23 July 2012. An MRI scan revealed "some inter-carpal and dorsal radio-carpal ligament strain" (Exhibit A; p. 7). There was crepitus, tenderness and triggering of the ring and little fingers of the right hand. Dr Myers was concerned about "an injury to the hook of the hamate". He organised an ultrasound. When he reviewed Mr Zaya on 1 August 2012, he expressed the view that the findings "are fairly mild but there was definite clinical abnormality with some subtle triggering of the ring and little fingers at the A1 pulley level" (Exhibit A; p. 8). He injected some cortisone, "as a test". On review on 15 August Mr Zaya reported that the cortisone had not relieved his symptoms. The clinical signs remained the same and Dr Myers was of the view that a course of injections may be required.
7. When Dr Myers again reviewed Mr Zaya on 10 September 2012, the clinical signs remained the same. Notwithstanding some apparent lack of effort on grip testing, Dr Myers thought Mr Zaya was genuine and regarded the clinical signs as indicative of injury. In his view the injury involving a fall down 7 stairs was "relatively high energy", but he was reluctant to recommend surgery.
8. Dr Myers referred Mr Zaya to Dr James Yu a specialist in anaesthetics and pain management. Dr Yu first saw Mr Zaya on 29 October 2012. At that time Mr Zaya was complaining of burning pain in his right hand associated with pins and needles, numbness and tingling sensation. He also complained of swelling and colour changes noting that his right hand was purplish or bluish and was somewhat cold. He also had lower back pain and left leg pain. On clinical examination Dr Yu noticed that "the right [hand] looks swollen and there is purplish discolouration. The right hand is colder than the left. There is some motor weakness on the small muscles of the right hand. Flexion and abduction of the fingers were somewhat weak." Dr Yu diagnosed "right hand pain secondary to Complex Regional Pain Syndrome." He also noted generalised musculo-skeletal pain, mild depression and deconditioning. He regarded Mr Zaya as in need of psychological assessment.
9. Dr Yu seems to have assumed primary responsibility for Mr Zaya's treatment from this time on. He maintained the diagnosis of CRPS and varied his medication which included Endone. Hydrotherapy was introduced, although Mr Zaya complained of "severe generalised body ache … after the hydrotherapy session". The findings on clinical examination of the right hand remain consistent with the CPRS. Dr Yu referred Mr Zaya for psychological assessment and physiotherapy. He also booked him in for both a right stellate ganglion block and a facet joint injection to relieve both the right arm pain and the lower back pain. By 26 November 2012 there was no change but the stellate ganglion block had yet to occur. There was again no change when he was reviewed on 20 December 2012.
10. Dr Yu performed the right stellate ganglion block in early January 2013, regrettably it provided only temporary relief. According to Dr Yu, the symptoms and signs remained consistent with CRPS together with generalised musculo-skeletal pain.
11. In the early part of 2013 Dr Yu recorded that Mr Zaya was dependent on his mother, who was visiting from Canada, for assistance with the activities of daily life including cooking, washing and cleaning. Mr Zaya's condition seemed to have deteriorated and he was experiencing intense pain in his right arm. Dr Yu was of the view that Mr Zaya required an intensive multi-disciplinary pain program and was awaiting the workers compensation insurer's approval to enrol him in the program at Royal Prince Alfred Hospital (RPAH). Mr Zaya was reviewed on 11 April 2013 when there was no change in his condition. Mr Zaya was consuming a large and varied amount of drugs including opioids. Dr Yu proposed a repeat right stellate ganglion block followed by 5 days of Ketamine infusion in an attempt to reduce pain sensitivity.
12. Mr Zaya was interviewed for enrolment in the RPAH Pain Program in about mid-May 2013.
13. In June 2013 the findings on examination continued to be consistent with a diagnosis of CRPS. Dr Yu was still awaiting the workers compensation insurers approval for Mr Zaya to commence the multi-disciplinary pain program and for preparatory treatment by way of the Ketamine infusion before the commencement of the program. Dr Yu found on examination severe allodynia and hyperalgesia along the right hand up to the elbow. The range of movement was "globally restrictive". The hand was cold, slightly swollen and affected by a bluish discolouration.
14. Tony Merritt, a clinical psychologist, who had reported on 31 January 2013, noted very entrenched pain and disability behaviours in the context of a passive and dependent personality style. He had taken to walking with a stick and "seems resigned to disability" (Exhibit A; p. 31). Mr Merritt agreed that Mr Zaya required an intensive pain management program.
15. By letter dated 29 April 2013, (Exhibit A; p. 34), Mr Graeme Campbell, a senior physiotherapist at the Pain Management Centre reported to Dr Yu that Mr Zaya had been assessed as "a highly suitable candidate" for their program. They were awaiting insurance approval. When he assessed him in May 2013, Mr Campbell noted that the walking stick which Mr Zaya had adopted "was far too long". I interpolate, it was obvious that there were psychological issues intruding in his presentation. Dr Stephen Gibson, the director of the Pain Management Centre considered his psychological presentation to be consistent with an adjustment disorder and regarded the clinical signs apparent on examination of Mr Zaya's right hand as "consistent with partially controlled CRPS".
16. By July 2013 Mr Zaya had become severely deconditioned and was unable to perform basic activities of daily life like showering and dressing. He required family assistance for these activities. He was admitted to RPAH on 29 July 2013 for the Ketamine infusion for 5 or 6 days, following which Mr Zaya's care was handed over to Dr Gibson at the RPAH Pain Clinic
17. He underwent a further period of inpatient treatment at the RPAH Pain Management Centre in the latter part of 2013. On review on 10 February 2014, Dr Gibson felt Mr Zaya's right hand pain was somewhat improved with better movement of the fingers and thumb. Mr Zaya had also remained off all opiates. Dr Gibson concluded that the inpatient Ketamine infusion "was somewhat helpful" (Exhibit A; p. 60). He still had disturbed sleep because of pain.
18. During his treatment at the Pain Management Centre, Mr Zaya was seen by Dr Michael Jennings, psychiatrist for treatment of panic attacks which had commenced later in 2013. In March 2014 a clinical psychologist Ms Amy Chan considered Mr Zaya was "making some progress in a gradual manner".
19. He was assessed on 22 September 2015 by Dr JB Stephenson in his capacity as the approved medical specialist for the assessment of Mr Zaya's whole person impairment relating to his right upper extremity and lumbar spine. Dr Stephenson thought it "quite apparent that (Mr Zaya) had a pain condition affecting his right upper extremity including a swollen right hand and discolouration of the fingers". Dr Stephenson regarded Mr Zaya's presentation as consistent with CRPS 1 in the right upper extremity. He regarded that condition as giving rise to a 49 percent WPI (Exhibit A; p. 105), "in keeping with the restriction and range of motion and sensory loss assessment". The evidence is that CRPS I is a condition not involving distinct peripheral nerve injury. This distinguishes the condition from CRPS II. Dr Stephenson also assessed a 7% WPI in relation to the lumbar spine. The combined loss according to the tables was 53 percent.
20. Mr Zaya's symptoms and disabilities have continued more or less unabated throughout. He continues to reside with his sister in Sydney's east and engages in limited daily activities. It is apparent from the evidence that his sister had both before and after Mr Zaya's injury performed for his benefit, as well as her's, the necessary domestic activities to maintain them in the home unit they shared.

Medico-legal evidence

1. Mr Zaya has been examined by a number of specialists on both sides of the record. Conferences were held and joint reports produced by the neurologists, Dr D. Milder and Professor Kiernan; the orthopaedic surgeons, Dr J Bodel and Dr E Schutz and occupational therapists, Ms M Sale and Ms K Walcott.
2. In their report of 16 January 2018, Dr Milder and Professor Kiernan did not agree on the diagnosis. Dr Milder was of the view that Mr Zaya suffered CRPS of the right upper limb. Professor Kiernan agreed that Mr Zaya appeared to suffer a pain syndrome, but he was uncertain of its nature. Professor Milder regarded the condition as due to the fall of 4 April 2012, but Dr Kiernan was uncertain. Dr Milder regarded Mr Zaya as unfit for all work, Professor Kiernan considered there was no evidence of a neurological injury which impacted upon Mr Zaya's ability to work. It's quite apparent that Dr Milder accepted the genuineness of Mr Zaya's complaints, symptoms and clinical signs and Professor Kiernan did not. (There was an issue about whether the opinions attributed to Professor Kiernan were his. From his oral evidence I am satisfied the report in substance accurately records the views he holds.)
3. Drs Bodel and Schutz agreed that there were some unusual features in Mr Zaya's case. From Dr Schutz's perspective this included the consideration that the symptoms in the right hand were initially mild and took some time to spread. They both thought it unusual that, initially, the pain, swelling and colour changes did not seem significant and that Mr Zaya was able to continue at work for four months. However, Dr Bode,l despite some initial hesitation, came to the conclusion that Mr Zaya did indeed suffer from a CRPS. Factors he relied upon were loss of hair in the region of the right hand, significant temperature difference between the left and right hand and mottling of the skin in the palm of the right hand.
4. Dr Schutz was of the view that there were none of the initial hallmarks of the developing CRPS condition. He referred to the unusual features discussed above and the absence of significant clinical signs upon his own examination. He considered the hair loss was unusual in as much as it had what he regarded as a definite "cut off" in appearance. In his experience hair loss due to CRPS is usually patchy. It's quite clear that Dr Schutz considered "there may be another (unspecified) explanation" for Mr Zaya's presentation.
5. Neither Dr Bodel nor Dr Schutz were much impressed with Mr Zaya's back condition, which they regarded as mainly due to pre-existing degeneration common at his age. Dr Bodel thought there was a degree of ongoing aggravation from the work injury.
6. Dr Schutz was unable to make any diagnosis to explain Mr Zaya's arm symptoms.
7. Both Dr Bodel and Dr Schutz regarded Mr Zaya as fit for his supervisory work from the prospective of his lumbar spine and that the continuing difficulty was with his right arm. Dr Bodel accepted that the right arm condition affected Mr Zaya's future possibilities of finding work "such as his pre-injury duties". Dr Schutz agreed that as Mr Zaya presents he would have little likelihood of finding suitable work. Had the injury on 4 April 2012 not occurred, both doctors agreed that the condition of Mr Zaya's right arm would probably have been "normal". Dr Schutz considered there had been a minor injury to the right arm initially from which Mr Zaya probably recovered. His current presentation is not due to the work injury.
8. The occupational therapists agreed that the requirement for assistance is based upon a diagnosis of CRPS of the right upper limb. They acknowledged that there was some inconsistency on presentation. On my reading of their joint report of 18 January 2018 neither expert assessed Mr Zaya's need for domestic assistance either in the past or the future as crossing the "intensity threshold" for voluntary domestic care specified for gratuitous domestic assistance in s 16 CLA. Both agree that Mr Zaya may need some curative apparatus and domestic aids as set out page 14 of the joint report as well as a degree of retraining to drive as a one-handed driver. So far as fitness for employment was concerned the occupational therapists deferred to medical opinion. Both noted that there was a significant psychological component to Mr Zaya's presentation outside their expertise. They agreed, "If Mr Zaya was to return to work in the future, he would require a sedentary position requiring only use of his left non-dominant hand" (Exhibit B; p. 13).
9. Mr Zaya was examined at the request of Energised Alliance by Dr John Ditton, pain management physician, on 27 January 2015. Dr Ditton had reservations about the consistency of Mr Zaya's presentation which in his view "demonstrated significant pain behaviour (Exhibit 1DC; p. 7). Complaints of pain in the neck and low back were out of all proportion and some of the signs of CRPS were not consistent". Dr Ditton was of the view, I interpolate overall, that Mr Zaya's presentation "would be consistent with a diagnosis of complex regional pain syndrome" (Exhibit 1DC; p. 7). But he was also of the view that "Mr Zaya is maximising his presentation of disability" (Exhibit 1DC; p. 8). There was a degree of functional overlay involved. Dr Ditton was unable to say to what extent. He was not confident of the reliability of Mr Zaya's presentation of pain and disability, but on that presentation Dr Ditton regarded Mr Zaya as having no capacity to resume paid employment.
10. Dr Sharon Reutens, psychiatrist, who examined Mr Zaya on behalf of the employer (Exhibit 2DA; p. 8ff), diagnosed that Mr Zaya was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood which was secondary to his pain and disability. Dr Robert Hampshire, psychiatrist, who examined Mr Zaya at the request of his solicitors on 22 December 2014 diagnosed a severe Pain Disorder (Exhibit A; p. 87). Dr Hampshire was of the view that it is not unusual for a pain disorder to follow what appeared to be relatively minor injuries. There was a co-morbidity of Major Depressive Disorder. Dr Hampshire is of the opinion that Mr Zaya was totally unfit for all work.

The oral evidence of the experts

1. Drs Bodel and Schutz gave concurrent evidence on 21 March 2018. Both accepted that CRPS is an entity known to medical science (230.5T). It is referred to as a syndrome because although medical science accepts that people genuinely present with a constellation of such symptoms and signs, the condition does not neatly fit into an established clinical entity which is well understood by medical science (30.25 - .45T). Dr Bodel explained that the diagnostic label had changed over the years he had been in medical practice. He was not sure that CRPS would remain the medical label of choice. Dr Schutz agreed with this (231.10T). Interestingly he said that a relatively minor injury can lead to gross swelling, terrible pain and temperature changes which may take years to resolve. However, that pattern did not apply here because of the slow insidious onset and the absence, on his examination, of very significant florid signs (231.15T).
2. It was quite clear from the evidence of the doctors, particularly Dr Bodel that the pathology which underpins the CPRS is unknown. That is, it has not been defined by medical science and there tends to be a cross-over between physiological and psychological issues. When I pointed out that there were reports from orthopaedic surgeons, neurologists and pain specialists (234.25T), Dr Bodel said, "Nobody knows who it belongs to". He did add that "in this day and age, the most appropriate people, and usually the people most involved in the management, are the pain specialists". With some qualification Dr Schutz agreed (234.45T).
3. Dr Schutz was of the view that the onset of the syndrome is usually quite rapid within a few days or a week or so. Dr Bodel did not agree. He said "it's something that comes over time". In his view the six months that it took for Dr Myer's, a hand surgeon, to refer Mr Zaya to Dr Yu, a pain specialist, indicated that by then Dr Myer's "was quite happy that it's well-established", which, in Dr Bodel's view, probably meant it had been present for a period before then.
4. The experts were cross-examined on behalf of Mr Zaya on the basis of MFI 7, which became Exhibit H, which Dr Bodel identified as the basis of the current Workover Guidelines in relation to the assessment of CRPS. I interpolate that Exhibit H distinguishes between type 1 and type 2 CRPS. Type 2 follows a known peripheral nerve injury with damage to nerve function. Type 1 occurs in the absence of any known nerve injury. The evidence indicated that the diagnostic criteria had arisen out of a symposium in Canada. It was necessary for the patient to meet each of four criteria, but in respect of criterion 2, one symptom in three of four categories, and for criterion 3, one sign in two of 4 categories, were sufficient. The fourth criterion was effectively a negative one acknowledging that no definitive diagnostic test for CRPS was available. Criterion 1 is illuminating: The patient must have continuing pain that is disproportionate to any inciting event.
5. Dr Bodel who had initially been sceptical about the diagnosis explained that he had gradually come around to the view that Mr Zaya suffered from the condition over the course of three examinations. By reference to Exhibit H, Dr Bodel demonstrated that each of the diagnostic criteria were met in this case, including those which depended upon objective clinical evidence (237.5T). Dr Bodel was of the view that for criteria 2 and 3, Mr Zaya had "two lots of four. Four symptoms, four signs. And I think he's got one in each at least". As I have said, the requirement was for one symptom in three of four categories, and for clinical signs, two from the four categories.
6. It is apparent that Dr Schutz had not seen Dr Stephenson's report. Dr Schutz acknowledged Mr Zaya did complain of sufficient symptoms to satisfy criteria 1 and 2. He was unable to say, however, what the clinical signs for criterion 3 were as Mr Zaya was very reluctant to have Dr Schutz examine his hand. Dr Schutz agreed that it was necessary to look at a combination of signs and symptoms (240.40T).
7. Under cross-examination, although Dr Bodel was prepared to accept there may be other explanations for the clinical presentation, he said: there is now quite significant evidence of complex regional pain syndrome in the right hand. The right hand is very cold from the wrist down. The results are of significant loss of hair in the dorsal of the right hand over the back of the fingers. He is quite hirsute generally and he has thick hair cover on both forearms and on the back of the left hand and wrist, but not the right side. When asked whether that "essentially amounted to two signs", Dr Bodel responded that he was "satisfied that the presentation was significant and consistent with the diagnosis" (248.50 - 294.20). It seems to me looking at Exhibit H and focusing on criterion 3 for a moment, one sign in two or more of the categories is sufficient to support the diagnosis on those criteria. Dr Bodel's earlier evidence made it clear that he found four relevant signs and received four relevant complaints of symptoms.
8. Dr Dan Milder and Professor Mathew Kiernan, both consultant neurologists, gave oral evidence, but by agreement separately. An extract from the New South Wales Workers Compensation Guidelines for the Evaluation of Permanent Impairment, fourth edition, effective on 1 April 2016, relating to the assessment of impairment arising from chronic pain and including Table 17.1 which was tendered through Dr Milder (Exhibit G). It is clear, as Dr Bodel had said, that Table 17.1 setting out the diagnostic criteria for Complex Regional Pain Syndrome Types 1 and 2 is largely based upon the document utilised during the concurrent evidence of Dr Bodel and Dr Schutz and admitted ultimately as Exhibit H. There are differences, however: for criterion 2, the patient must report at least one symptom in each of the four categories; for criterion 3, the patient must display at least one sign at the time of evaluation in each of the four categories; and criterion 4 relating to diagnostic tests has been replaced by the need to consider whether there is no other diagnosis that better explains the signs and symptoms. It needs to be borne in mind that the question in Mr Zaya's case is whether he has CRPS 1. CRPS 2 relates to specific peripheral nerve injury, as I have said.
9. I should interpolate that the guidelines do not bind the Court and do not bind medical practitioners in the practice of their profession. The guidelines bind approved medical specialists appointed under s 321 Work Place Injury Management and Workers Compensation Act 1988 (NSW) (WIM Act) when assessing the degree of permanent impairment of an injured worker under s 322 WIM Act. Rather, a court is required to treat the outcome of the assessment process as conclusive evidence of the degree of permanent impairment suffered by an injured worker when that matter is relevant to a fact in issue such as whether the s 151H WCA threshold has been crossed: s326 WIM Act.
10. Dr Milder received a history of severe pain. On examination, Dr Milder noticed the right hand to be swollen and violaceous, or violet-blue (317.1T). There was diminished temperature of the right hand and marked allodynia within the entire right upper limb. Dr Milder explained that allodynia is the eliciting of undue pain by sensory stimulus (327.20T). Allodynia satisfied criterion 1. Dr Milder also explained that the clinical signs of CRPS are characteristically variable (327.45T). It is also common for the condition to be associated with psychological symptoms such as depression and anxiety (328.1T). Dr Milder considered that all of the criteria in the guidelines were satisfied (328.35T) and that Mr Zaya had ongoing CRPS.
11. In cross-examination Dr Milder accepted that the medical examiner is reliant upon the accuracy of the history provided by the patient. Dr Milder made it clear that he disagreed with the different views of Professor Kiernan. In relation to the back injury, Dr Milder was of the view that the plaintiff had suffered an invertebral disc injury resulting in irritability of the left fifth lumbar nerve root due to the work accident. I interpolate that in this respect, Dr Milder is out of step with the other medical assessors. Dr Bodel thought there was some ongoing irritability in Mr Zaya's low back due to the injury, but it was not of any great significance. Dr Schutz thought any injury to the back should have resolved and ongoing pain would be due to the degenerative condition of his spine. Professor Kiernan considered there was no evidence of impairment in relation to the lumbar spine.
12. When cross-examined about Professor Kiernan's observation that none of the various investigations were diagnostic of CRPS, Dr Milder said: "Let us assume that the investigations were normal, were negative. The clinical diagnosis would remain the same" (343.15T). There is no evidence that any particular radiological or like investigation or study was apposite for the demonstration of pathological change associated with CRPS: see also criterion 4 of Exhibit H. Given Dr Bodel's evidence that the pathology is not well understood, this seems unremarkable. When asked about whether, from a neurological point of view, Mr Zaya could return to work, Dr Milder said: "If he has CRPS, it's fairly disabling. It is extremely hard to treat … I don't quite know what he, what he could do." (344.5T)
13. In re-examination, Dr Milder acknowledged criterion 4 on Exhibit H records: "there are no definitive diagnostic tests of CRPS including imaging modalities".
14. Professor Kiernan examined Mr Zaya on two occasions, being 15 April 2015 and 17 May 2017 preparing a report following each of those assessments (Exhibit 2DA; p. 19ff and p. 19ff and p. 34ff). Professor Kiernan made clear he did not regard Mr Zaya as suffering from a CRPS, rather he thought Mr Zaya suffered "a chronic pain syndrome" (378.15T), which, as I understand it, is a psychological or psychiatric condition. Professor Kiernan doubted the injury of 4 April 2012 could account for the chronic pain syndrome. Rather, he considered that condition "may be related to an underlying mood related disturbance" (378.40T). There was no neurological condition. Professor Kiernan thought Mr Zaya suffered only "a soft tissue injury from the fall" (379.5T). He regarded Mr Zaya as "potentially remediable, given appropriate management through a multi-disciplinary team approach". It will be recalled that such an approach had been attempted at Royal Prince Alfred Hospital. A course of six to eight months duration would probably be required. Professor Kiernan made clear that he did not find any clinical sign consistent with complex regional pain syndrome.
15. In cross-examination Professor Kiernan accepted that criterion 1 was satisfied in as much as Mr Zaya reported continuing pain that was disproportionate to the inciting event (382.20T). Professor Kiernan agreed that the conclusion he expressed was based upon the absence of confirmatory evidence in the special investigations (307.5T). He thought there was no clear objective evidence of neurological impairment (387.15T). He agreed that sufferers from CRPS "can have a variable presentation as between various examinations by different doctors" (389.40T). Professor Kiernan did not recall a genuine case of CRPS where the patient "had completely normal investigations" (389.49T). That Mr Zaya had already undergone multi-disciplinary pain management treatment did not "mean that it can't be tried again" (392.25T).
16. Professor Kiernan agreed that CRPS was a condition which did not neatly fall within the department of any particular medical specialty. There is a sub-specialty called neuro-psychiatry which provided "a good place for that to be managed" (393.20 - .35T). Professor Kiernan thought there was a "cross-over between the physiology and the psychiatry" (393.39T).
17. At the end of the evidence, I asked this question (393.50 - 394.10T): Q. Is it possible that, from the standpoint of different specialties, a practitioner will see … the same thing differently? A. Yes. And you have mentioned the wide variation of physicians who have been involved and even in the one field there can be differences. So if you are a pain specialist, you may approach it from an anaesthetic perspective. And an anaesthetic's perspective are more like likely to do interventions, like nerve blocks. Or you might be a pain specialist that's come through from more musculo-skeletal rheumatology, and they might be doing it more from a physical approach. So it just depends a little bit on training, background, and the nature of the practice.

Finding on Complex Regional Pain Syndrome and other injuries

1. Notwithstanding the strong contrary opinions of Dr Schutz and Professor Kiernan, I am persuaded on the balance of probabilities that Mr Zaya has suffered a Complex Regional Pain Syndrome as a consequence of the fall on 4 April 2012. This diagnosis has the support of the majority of the medical experts who have both treated Mr Zaya since his fall and who have assessed him for the purpose of the litigation. Secondly, as I have tried to demonstrate by summarising the reports of Dr Loefler, Dr Myers and Dr Yu above, notwithstanding Mr Zaya's continuation in supervisory duties after the fall, he continued to seek medical treatment in particular for the condition of his right hand. As Dr Bodel said, it is likely that the CRPS was well established by the time Dr Myers referred Mr Zaya to Dr Yu in October 2012. Of all the medical experts involved, only Dr Schutz suggested that rapid onset of the condition was characteristic of it. I regard this opinion as out of step with the weight of the evidence. Dr Bodel certainly thought an onset after some months was consistent with his understanding of this not fully understood condition. One might also note that a strong temporal connection between trauma and onset is not a criterion for diagnosis in accordance with either Exhibit H or Exhibit G to the extent they are relevant.
2. Dr Yu, a pain specialist with an anaesthetics background, consistently with Professor Kiernan's evidence, sought to treat the condition with a series of Cortisone injections, stellate ganglion block and ultimately Ketamine infusions. This was not successful, and eventually in about mid 2013 Mr Zaya was accepted into the RPAH multi-disciplinary pain management program, on the basis that he was suffering from CPRS.
3. It seems to me that this continuity of injury, onset of symptoms, development of CPRS, and treatment regarded as appropriate for it is a strong factor supporting the diagnosis.
4. I am also influenced by the consideration that Dr Stephenson, the AMS, Dr Bodel and Dr Milder all regarded, on the basis of their medical examinations, Mr Zaya as meeting the criteria for the diagnosis for the purpose of whole person impairment. This, of course, is not decisive in this context. But it should be pointed out that Dr Stephenson made the diagnosis and his assessment in accordance with the former edition of the WorkCover guides, which according to the evidence were much more stringent than the current fourth edition based on Exhibit H. Dr Bodel and Dr Milder received an account of symptoms and made clinical findings consistent with Exhibit G which is somewhat more stringent than Exhibit H. Criteria 1 and 4, as I have said were clearly engaged in Mr Zaya's case.
5. I accept that there are atypical features of Mr Zaya's presentation. They include: the very symmetrical hair loss noticed by some, but not all, of the referees; his great reluctance on occasions to allow his arm to be examined; the adoption of the outward manifestations of a "sick role"; and his somewhat widespread complaints of pain beyond the affected right arm. However, in assessing these matters I have taken into account that Dr Ditton, who expressed some reservations on the basis of considerations such as these, which he referred to as a functional overlay, still made the CRPS diagnosis. Other doctors such as Dr Bodel and Professor Kiernan acknowledged the cross-over between the physiological and the psychological factors influencing this condition, I repeat, the pathology underpinning which is not clearly understood. I was also impressed by the consideration that Dr Bodel was not immediately persuaded that Mr Zaya suffered from CRPS, but only came to this conclusion after three examinations. And when he formed that opinion he was firm in his adherence to it.
6. It is also to be borne in mind that both Dr Hampshire and Dr Reutens have diagnosed Mr Zaya as suffering from a separate and discrete psychological disorder. Interestingly, having regard to Professor Kiernan's opinion, Dr Hampshire has concluded that Mr Zaya suffers from a Chronic Pain Syndrome, a recognised psychiatric condition in accordance with the usual diagnostic manual. Dr Reutens has diagnosed an Adjustment Disorder with aspects of depression and anxiety. No doubt a separate psychiatric condition, even if only an Adjustment Disorder, is likely to complicate the clinical picture.
7. I also accept that there probably is a degree of exaggeration or embellishment represented by the "sick role" manifestations such as the use of a walking stick. There certainly must be a degree of functional overlay which must be taken into account with the CPRS diagnosis to explain the whole clinical picture.
8. So far as the back injury is concerned, I am rather of the view that it's largely a degenerative condition which was aggravated by the fall of 4 April 2012. However, I do not find it significantly disabling and it certainly would not interfere with his capacity to perform his pre-injury work as a site supervisor for a concreting company. But it may cause him some difficulty in performing the work of a concreter, if required.
9. I accept on the basis of a CPRS alone that he has been and remains totally unfit for work. Dr Bodel expressed some guarded optimism about the prospect of improvement in the future. And Profession Kiernan considered that another attempt at intensive multidisciplinary pain management might yet bear fruit. But it seems to me that these matters may indicate only the need to adopt a slightly higher than conventional discount for the vicissitudes having regard to Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

Contingent Assessment of Civil Liability Act damages against Energised Alliance

Non-economic loss - s 16 CLA

1. As I have said, Mr Zaya was 40 at the date of his injury and is now 47 years of age. On the findings I have made, he has suffered a very painful and disabling consequence in the form of his CRPS of his right arm, the prognosis for which is at best guarded. He has a life expectancy according to the medium life tables of nearly 37 years. In addition, he has suffered psychiatric consequences, although I have borne in mind my findings in relation to embellishment and exaggeration. His ordinary activities of daily life have been interfered with. I am satisfied, having regard to the pain and suffering he has suffered and will suffer, his loss of amenity, and loss of enjoyment, of life viewed objectively non-economic loss should be assessed, as claimed, at 50 percent of a most extreme case: $317,500.00

Past economic loss

1. I am satisfied that but for his injury, Mr Zaya would have continued in the concreting industry and probably in the capacity of a supervisor. Mr Valletta's evidence indicated that he regarded him highly as a supervisor. There is evidence that his employer had no suitable duties for him after about October 2012 and may have gone through a period of financial uncertainty. However, economic conditions in New South Wales have been buoyant, especially in the infrastructure and construction industries. I am satisfied that but for his injury he would have been able to continue in full time work.
2. In calculating damages for past economic loss, I have relied upon the amended net wages schedule in Exhibit D; tab 2 which calculated Mr Zaya's loss up until 19 March 2018 on a net basis in the sum of $464,494. I am satisfied that by reason of the CRPS he has been totally incapacitated for work, that is to say he has had no residual earning capacity. The wages schedule utilises Mr Zaya's actual net wages up until 4 October 2012, and thereafter updates the actual figure of $1,482 pw by reference to movements in wages according to the information published by the Australian Bureau of Statistics. I am satisfied that this is an appropriate methodology. For the purpose of updating the schedule, I have continued to adopt the figure of $1,720 per week, given sluggish wage movements over recent years. I calculate an additional period of 59.2 weeks since the schedule was prepared. My subtotal is $101,824.00. The total then for past economic loss is: $566,318.00

Interest on past economic loss - s 18

1. The amount claimed and calculated in the Amended Schedule of Damages (MFI 12) net of weekly payments of workers compensation at a rate of 2.76 percent, calculated in accordance with s 18, was $6,781. This seems manifestly erroneous. Given my findings on liability and the absence of up-to-date information about workers compensation payments, it seems futile to attempt to calculate interest. I will content myself by noting it as claimed. $6,781.00

Future economic loss - s 13

1. I am satisfied that Mr Zaya remains totally incapacitated by reason of his CRPS and that the prognosis remains guarded. His most likely future circumstances, but for the injury are that he would continue to work in a supervisory capacity in the concreting industry until he attained the age of 67. I have adopted the figure of $1,720 per week as his present rate of net earnings, but for his injuries. It seems to me on the evidence that the prospect of improvement is slight, whether or not he undertakes a further pain management course of treatment. But given that there is some, not remote, prospect of improvement, which may lead to the re-emergence of a useful earning capacity, I have formed the view that it is appropriate to adopt a somewhat higher than conventional discount rate for the vicissitudes of life of 22 percent. The period until retirement is 20 years and the 5 percent multiplier is 666.4, producing a subtotal of $1,146,208. After the application of the 22 percent discount for the vicissitudes, the amount that I would have allowed is: $894,042.00

Past loss of employer's compulsory superannuation contributions

1. I have adopted the rule of thumb approach sanctioned by Najdovski v Crnojlovic [2008] NSWCA 175 of 11 percent on net earnings for the past. The figure produced is: $62,294.00

Future loss of compulsory superannuation contributions

1. Adopting the same approach over a period of 20 years, the percentage is 13.9 and the figure produced is: $124,271.00

Fox v Wood component

1. As at 2 May 2018, the last date of hearing, the amount of income tax deducted from weekly payments of workers compensation was: $32,400.00

Out of pocket expenses

1. As at 2 May 2018 these were agreed in the sum of: $98,507.59

Future out of pocket expenses

1. The amount claimed is a relatively modest $27,297 which I will allow, however, this allows a very modest amount only for the possibility that Mr Zaya might re-enter an intensive multidisciplinary pain management course in the future: $27,297.00

Past Griffiths v Kerkemeyer damages

1. This claim was not pressed in closing addresses. Putting to one side the evidence concerning the assessments of the occupational therapists in the joint report, it was clear that the applicant's sister with whom he resides had been in the custom of performing all domestic household duties necessary in their home before and after the plaintiff's accident.

Future Griffiths v Kerkemeyer damages

1. Given questions about whether the intensity threshold under s 15(3)(a) has been met, it is clear that the plaintiff has no entitlement to damages for the provision of gratuitous attendant care services. Moreover, as I have said because of the pattern of Mr Zaya's previous domestic life, it's doubtful that it could be said that the services his sister is providing would not be provided to him but for the injury: s 15(2)(c). However, one must allow for the contingency that his domestic circumstances may change in which event it may be necessary for him to enlist commercial care services to meet this need. It seems to me that it's appropriate to approach this issue by allowing a buffer which is not substantially different from the Malec v JC Hutton calculation proffered on Mr Zaya's behalf. I propose to allow the figure of $50,000 to meet this contingency. $50,000.00

Section 151Z(2) Reduction

1. Had Mr Zaya succeeded in establishing legal liability in the case, the conditions expressed in pars. (a) and (b) of s 151Z(2) would have been meant and the damages recoverable by him from Energised Alliance are required to be reduced by the amount by which the contribution which Energised Alliance would be, but for Part 5 WCA, entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable by dint of s 151Z(2)(d). Effectively on the findings I have made, the amount of the reduction is the difference between 20 percent of damages assessed under the CLA and 20 percent of the work injury damages assessed under WCA.
2. Naturally, it is also necessary to reduce the damages Mr Zaya would have recovered by reason of his own contributory negligence which I have assessed at 10 percent.

Work injury damages

1. Work injury damages are calculated having regard to the common law of damages as modified by the provisions of Division 3 of Part 5 WCA. In particular, under s 151G WCA, the only damages that may be awarded are damages for past economic loss due to loss of earnings and damages for future economic loss due to the deprivation or impairment of earning capacity. The other modifications, leaving aside the question of pre-trial interest, are materially identical to the damages recoverable under the CLA. Accordingly, the work injury damages that Mr Zaya would have recovered are calculated by reference to the amounts I have allowed above for past economic loss, future economic loss, past loss of superannuation contributions, future loss of superannuation contributions and the Fox v Wood component. From damages so assessed it would be necessary to deduct the amount of weekly payments of compensation Mr Zaya has recovered during the periods of incapacity resulting from the injury of 4 April 2012. It is unnecessary to re-calculate the work injury damages for the purpose of these contingent findings as to quantum.
2. The total amount to, for or on behalf of Mr Zaya pursuant to WCA as at 27 April 2018 was agreed at $476,994.44 (MFI 10) of which $251,193.26 had been paid by way of weekly payments.

Orders

1. My orders are: 1. Judgment in favour of the first defendant; 2. The plaintiff to pay the first defendant's costs; 3. Judgment in favour of the second defendant; 4. The plaintiff to pay the second defendant's costs to the extent of the second defendant's entitlement under the Workers Compensation Acts and the Regulations made thereunder; 5. Dismiss each of the cross-claims brought by the first defendant and the second defendant respectively with no order as to costs; 6. In the event that any party wishes to make an application for a special costs order a written submission setting out the order sought, the reasons why it should be made, and accompanied by any necessary supporting evidence may be lodged with my chambers within 7 days.

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