Zaya v RPS Manidis Roberts Pty Ltd and UGL Engineering Pty Ltd t/a Energised Alliance

Uncontroversial background

1. The formwork surrounding concrete, after it had been poured so as to form a staircase, needs to be kept in place for some time so that the concrete may achieve greatest strength. This was referred to in the evidence as the "curing" phase. There were different procedures for removing structural formwork as opposed to non-structural formwork. There was evidence from Mr Abunucerah, seemingly uncontroversial and accepted by the primary judge at [12], to which no challenge was made on appeal, that the underside of staircase 3 was regarded as structural, but that its sides and the upper surface were not, and that Mr Valletta had authority to direct the removal of non-structural formwork: "... staircase number 3, for example, the underside of it was the structural component, not the flights and landing. So in terms of the structural component approval was needed to be seeked from [the engineer]. Everything else not so structural can be done by Rod Valletta."
2. There was also no challenge to Mr Zaya's evidence, recorded by the primary judge at [35], that it was usual practice to remove all of the formwork at the one time, and that on staircase 3 that work would take no more than two hours. Finally, there was evidence, accepted by the primary judge (at [94]) that concrete had reached its maximum strength after 28 days.
3. A plan of the site which appears to have been part of a site induction package referred to two staircases: one towards the north-western corner of the site; this was staircase 3. The other was further to the south and east of the site; this was staircase 1.
4. A little unintuitively, staircase 3 was constructed before staircase 1 (this may bear upon an aspect of ground 3(c)). No challenge was made to the primary judge's finding that staircase 3 had been poured on or about 27 February 2012: at [16]. It was accepted on appeal that staircase 1 was completed on 2 April 2012, 2 days before Mr Zaya slipped and fell. Photograph 20 was taken by Mr Abunucerah on that day. It was common ground that it showed staircase 1. The formwork and a wooden beam preventing access to the stairway suggest it had been recently poured. Further, a document of 3 April 2012 records that the "sthn stairs" had been poured on the previous day.
5. Based on those matters alone, the objectively established facts on the afternoon of 4 April 2012 were as follows. 1. Staircase 1 had been poured 2 days earlier. It would not have had any formwork stripped from it. There was evidence that nonetheless workers on site used staircases in the weeks following a pour, before the formwork had been removed, but should not do so in the first two days. 2. Staircase 3 had been poured some 5 weeks earlier. The concrete in it would already have achieved maximum strength, and there was nothing preventing the removal of the formwork on the risers and treads of the stairs.
6. Mr Zaya's account of the incomplete stripping of timber formwork goes against ordinary practice on building sites. That said, the unexpectedness of some residual formwork on a staircase constituted a hazard which is of the essence of his causes of action.

Contemporaneous documents

1. There are a small number of contemporaneous documents.
2. First, there is an incident report which was completed by hand by Mr Abunucerah. Mr Abunucerah was Silver Raven's project manager, to whom Mr Zaya reported. Mr Zaya was born in Mosul in Iraq and arrived in Australia in 1992. The primary judge noted that English was not his first language, and that his syntax and accent made his evidence a little hard to follow: at [68]; this may be part of the explanation why Mr Abunucerah completed the form.
3. The document identified the location of the incident as "staircase 3 - North-western" and described the incident thus: "Accessing staircase 3 to enter basement slipped from the stairs and fell backwards sliding down."
4. The document also described the investigation which subsequently occurred as follows: "Andrew and myself accessed the basement by means of staircase 3 to inspect w[h]ere Andrew slipped from the stairs and fell backwards skidding down injuring his lower back and right hand. Inspection [illegible] and exited the basement. No first aid was required. Andrew was asked to rest for the remainder of the day." That description appears to have been signed by Mr Abunucerah and also by Mr Zaya. Mr Abunucerah gave evidence that they signed it on the following day, although both signatures were dated 4 April. The Court was not taken to where Mr Zaya was cross-examined about the form, and so far as I can see he was not, although argument on the appeal proceeded on the basis that the second signature was his.
5. Under the heading "Corrective action" is written "Removal of formwork at staircase 3". The person said to be responsible for that is described as Mr Zaya. The "target date" by which this was to be done was a little unclear, but argument proceeded on the basis that it was 11 April 2012 (the most likely alternative is 14 April 2012).
6. Secondly, the "pre-start meeting notes" for 3 April 2012 commenced with the question "Did we achieve our plan on yesterday's shift?", under which is written "Yes - poured sthn stairs". There was other evidence confirming that the southern stairs, staircase 1, had been poured on 2 April 2012, and that fact was not controversial when the appeal was heard.
7. The "pre-start meeting notes" for 5 April 2012, gave an affirmative answer to the second question "Was it a safe shift yesterday?". There was no mention of any fall by Mr Zaya. The document was signed by the men who were apparently present at the meeting, including Mr Abunucerah, but not including Mr Zaya.
8. Thirdly, the primary judge recorded at [26] that Mr Zaya attended a GP on 5 April 2012. The medical history taken on that and subsequent occasions was not reproduced in the appeal books. His GP issued a workcover certificate on 5 April 2012 which included the following: "How the injury occurred: At work, slipped from the stairs and fell back wards skidding down, injured his lower back and R hand."
9. Fourthly, the attendance register records Mr Zaya as signing on, on 4 April 2012, at 7:00am and signing off at 4:00pm. His name is on the 22nd row of that page. The first 16 rows have sign-on times between 6.15 and 7.30, with Mr Valletta signing on at 6.15am on the first row, and Mr Abunucerah signing on at 7am on the 8th row. Thereafter, the sign-on times are 8.55, 9.00, 11.25 and 6.40. Two things may be noted of this. First, the entry for Mr Zaya (together with that for the worker identified on the 21st row who is recorded as having signed on at 6.40am) appear to have been written in the middle of the day or early afternoon, because they are lower in the page than those of workers who signed on at 11.25. Secondly, Mr Zaya's name, uniquely of the 24 rows on the page, is listed without a signature. Much was made of this when challenging whether the slip and fall had occurred at all. However, for present purposes, the most important aspect of the document, in light of Mr Zaya's testimonial evidence, is that it shows four PNT workers on site on 4 April, from the early morning until 3.30pm. The attendance register for the previous day has eight PNT workers on site.

Documents prepared during the litigation

1. A statement of claim was filed on 24 June 2014, slightly more than two years after the accident. It was broadly drafted. It made no reference to the formwork remaining on only two steps, so as to create a hazard. The particulars which were given included, relevantly to this appeal: "... (v) Required and/or allowed the plaintiff to proceed down concrete stairs whilst same were still under construction. (vi) Required and/or allowed the plaintiff to proceed down the concrete stairs with formworks 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 that the said stairs had not been stripped of all formwork. … (xiii) Failed to properly communicate clear instructions to the subcontractors including the plaintiff."
2. The parties exchanged particulars which were asked and answered on the basis that part of the plaintiff's case was reflected in the report of Mr H L Burn dated 16 April 2014. That report had not been tendered at trial. Indeed early in his opening Mr Gross indicated that "I don't think we'll be using Mr Burn at all", and no attempt appears to have been made subsequently to alter that course. There is no suggestion that the primary judge ever saw his report. Mr Burn's report was nonetheless the subject of an application to adduce further evidence, pursuant to s 75A of the Supreme Court Act 1970 (NSW), in this Court. I shall deal with it below. It may be convenient to note at this stage that Mr Burn's report does explicitly refer to Mr Zaya's complaint that there were precisely two steps below the landing of staircase 3 from which the formwork had not been removed. However, the requests for particulars, and the answers to those requests (which, unlike the report itself, were in evidence), did not disclose that fact.
3. The remaining documents were statements by the three main witnesses, Messrs Zaya, Abunucerah and Valletta. The statements were made 6 years (in the case of Mr Zaya), 4 years (in the case of Mr Abunucerah) and around 1 year (in the case of Mr Valletta) after the incident. That evidence falls to be assessed together with the evidence given in chief and in cross-examination. But in order to understand the reasoning of the primary judge, and the challenges to it made in this appeal, it is convenient to deal merely with the statements.

Mr Zaya

1. Mr Zaya made an evidentiary statement on 14 March 2018. In it, he said that normally a period of time of around 21 days was allowed for the concrete to cure with the formwork left in place. He said that the formworkers from PNT had not been on site all day, and that the only people (apart from Mr Valletta) who were on site when he was injured were himself, Mr Abunucerah and another Silver Raven employee, Mr Patrick McElroy.
2. Mr Zaya gave a detailed account of how he had fallen, because the stairs were poorly lit, and because "there were only two lots of timber on the stairs, one lot on each of the first two stairs after you step off the half-way landing". He said that he asked Mr Abunucerah, "[P]lease strip the timber off the stairs before anyone else falls", to which he replied, "[H]ow come they stripped and just left two?" and "[w]hat a stupid thing to do." He then said he called PNT on the contact number which he had, and was told that "Yesterday we were stripping the timber away from the stairs and Rod [Valletta] asked us to stop stripping the timber away, and just to block the entrance and then leave". His statement referred to a confrontation he had with Mr Valletta, who made no response to his complaint about what had occurred. This was the subject of a ruling by the primary judge: Zaya v Manidis Roberts Pty Ltd and UGL Infrastructure Pty Ltd [2018] NSWSC 388, to the effect that it was admissible, as in effect amounting to an admission by Mr Valletta, but that the evidence had to be given orally (which occurred).
3. It will be seen that Mr Zaya's first detailed account of events was made in a statement six years after the incident, and recorded (a) the absence of any PNT workers on site and (b) a confrontation between him and Mr Valletta.

Mr Abunucerah

1. Mr Abunucerah made a statement on 7 March 2016 to solicitors instructed by Silver Raven's workers' compensation insurer. Subject to minor objections the statement was tendered.
2. Mr Abunucera's statement confirmed that he had witnessed Mr Zaya's fall, together with Patrick McElroy. Deleting words which were rejected at trial, the statement contains the following passage: "Patrick and I then picked him up and walked him out of the basement using the same stairs. 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. I have provided a diagram which shows how having formwork on the stairs produces a trip hazard by reducing the width of the step."
3. The annexure was the diagram reproduced above.
4. Mr Abunucerah said that the three of them visited Mr Valletta, who said, when told of Mr Zaya's fall, "Crap". Mr Abunucerah said that he had completed the incident form, which he and Mr Zaya signed on the following day, 5 April, when Mr Zaya turned up for work. He said that he spoke with Mr Valletta on the following day, and was told "There were no injuries on site", and reminded him of what had been said on the previous day.
5. Mr Abunucerah's statement proceeded on the basis that 4 April 2012 was 21 days after staircase 3 had been poured: "Following the concreting process of the stairs the formwork has to be left in place for a certain amount of day to ensure the quality of the concrete that has been placed. Between 14 and 21 days concrete achieves 75% of its desired strength so [Mr Zaya] and I had approached the client (Energised Alliance) past the 21 days and instructed them that it was ready to be stripped. Up until the 21 days staff had been instructed not to use the stairs. When [Mr Zaya] and I spoke to the client we were getting them to give us an approval to strip the formwork. [Mr Zaya] was not happy about the formwork still being there as it was at potential trip hazard and that is why we both went to approach the client. Rodney Valletta was more concerned about the quality of the stair case instead of the safety of the workers. Rod therefore instructed us not to strip the formwork until past the 28th day or until further notification. The day the injury occurred was around the 21 days after the concreting had been poured. [Mr Zaya] was fully aware the formwork was in place at the time of the injury."
6. Mr Abunucerah's statement contained a further paragraph addressing communication between Energised Alliance and Silver Raven concerning the removal of the formwork. Parts were objected to. Although there was no challenge to the rejection of the first sentence on appeal, it is necessary in order to address ground 6 to deal with the words to which objection was taken (which are struck through in what follows, as should have been the case in the blue books filed in support of the appeal): "To the best of my recollection, Rod Valletta told the employees of PNT Formwork to stop stripping the formwork to ensure the quality of the concrete was not compromised. As already stated, [Mr Zaya] and I had spoken to Rod about this and he had requested the formwork remain in place until after the 28th day, or until further notification. I otherwise have no recollection of the removal of the formwork having being interrupted by Energise Alliance. [Mr Zaya] would therefore have been fully aware at time of incident that the formwork was still in place."
7. Mr Abunucerah was cross-examined in two phases, for most of Friday 23 March 2018, and again, more briefly on Monday 30 April 2018. (The delay was due to a complaint about production which arose during cross-examination; nothing presently turns on this.) I will turn to the details of that evidence when dealing with the reasons of the primary judge.
8. Mr Abunucerah's account was made some 4 years after the incident, and was explicitly based on the premise that staircase 3 had been poured three weeks earlier. There was no reference to there being formwork left on only two of the steps in staircase 3 when Mr Zaya fell.

Mr Valletta

1. Mr Valletta's unsigned statement appears to have been prepared in 2013 (the unexecuted signing page refers to 2013, and paragraph 1 states that Mr Valletta was born on 3 October 1978 and was 34 years old, consistently with its having been prepared in the first nine months of 2013). It was admitted into evidence, and although it was between 9 and 18 months after the incident, it was the earliest detailed account of what had occurred. Of course, Mr Valletta had not witnessed the incident; only Mr Zaya, Mr Abunucerah and Mr McElroy (who did not give evidence) had seen Mr Zaya fall.
2. In his statement, Mr Valletta described when he learnt of the incident as follows: "I can't remember the date, it was after Andrew returned from Canada, Peter, the Silver Raven engineer, came up to me and said, do you mind signing this? I said sign what? He said Andrew slipped down the stairs and he's hurt his back. I said give me a look, where did it happen? I went with Peter to the north western stairs and said to Peter how could he slip down the stairs? He said he didn't know how it happened however said he was behind Andrew when he fell. I said okay but how did it happen, did he lose his footing? He couldn't answer me. I said why should I sign this (incident report), let me ring up my boss, Satya. I explained to him Satya this guy (Andrew) has had a pre-existing injury and now he wants me to sign an incident report for the same injury. I didn't sign the Silver Raven incident report. When I looked at the steps with Peter, which was on the day, there was no objects in the way, no water ponding on the steps, nothing that could have caused Andrew's fall. A day or so later I thought it was all sorted in house by Silver Raven, they were giving him workers compensation or whatever, it really wasn't my business because they knew that I knew it was a pre-existing injury and the injury did not happen on the Marrickville site."
3. As will be seen below, the primary judge was critical of Mr Valletta's evidence.

Reasons of the primary judge

1. The trial occupied parts or all of seven days in March, April and May 2018, with judgment being delivered slightly more than a year later, on 8 May 2019: Zaya v Manidis Roberts Pty Ltd v UGL Infrastructure Pty Ltd (No 2) [2019] NSWSC 515. The reasons for judgment are lengthy, some 199 paragraphs over 72 pages. The second half of the judgment concerned apportionment and quantum, while paragraphs [100]-[116] dealt with the liability of each respondent. No submissions were directed to any of those paragraphs throughout the entirety of the appeal. For completeness, a "cross-appeal" filed by Energised Alliance contended that even on the findings sought by Mr Zaya on appeal, there would still have been no breach of duty. Strictly speaking, this should have been a notice of contention, as Energised Alliance made no challenge to the judgment and orders in its favour. The same document also challenged the (hypothetical) findings of apportionment.
2. Ultimately, the various grounds sought to undermine the findings and reasoning leading to the conclusion at [99] as follows: "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)."
3. After dealing with introductory matters, the reasons summarise the case propounded by Mr Zaya at [14]-[20] and the issues arising on the defences: at [21]-[24]. The primary judge found at [25] that Mr Zaya fell down the lower flight of stairs on staircase 3 around 3pm on 4 April 2012, relying upon Mr Zaya's evidence, as corroborated by the eye-witness Mr Abunucerah. The primary judge had to deal with the testimony of Mr Valletta, who suspected that no fall had occurred. That opinion was supported by the absence of any reference to an injury at the pre-start meeting at 5 April, but his Honour dealt with this and other evidence bearing on the question of the fall, in some detail, at [29]-[33]. No issue was taken with any of that reasoning.
4. The critical aspect of the reasoning is found at [34]-[99]. Those sections (like the balance of the reasons) are carefully structured under headings. The structure as reflected in the headings and subheadings is as follows: 1. "The state of the formwork on 4 April 2012" at [34]-[56], which deals separately with Mr Zaya's evidence (at [35]-[38]), Mr Abunucerah's evidence (at [39]-[49]) and Mr Valletta's evidence at [50]-[56]; 2. "Was there was an admission by silence?", at [57]-[64], which addresses Mr Zaya's evidence of whether Mr Valletta's silence when confronted after the fall was an admission of fault; 3. "Assessment of the evidence on the formwork issue" at [65]-[82]; and 4. "Findings of fact" at [83]-[99].
5. The first section is, as its heading suggests, largely a recounting of the salient aspects of the three main witness' evidence. There are occasional comments as to parts of that evidence, some of which are taken up in some of the grounds of appeal. But it would be fair to say that the gravamen of that section is to lay out the divergent accounts of what occurred on the day of the incident, which it was the Court's task to resolve by making findings of fact.
6. The primary judge referred to Mr Zaya's description of the events, that it looked like all the formwork had been removed when he descended the staircase, that the temporary handrail was in place although he did not use it, and that there was some side formwork still in place. His Honour remarked at [37] that it seemed surprising that on his account, Mr Zaya was unaware of the 4 PNT employees who had signed on that day, especially since his role was to supervise them.
7. It is clear from the selective recounting of the evidence that his Honour was focussing upon those parts which bore upon the key issue - the presence of formwork on only two steps - his Honour already having accepted that Mr Zaya slipped and fell on that afternoon. No criticisms were advanced on appeal in relation to this section of the reasons.
8. The primary judge then turned to Mr Abunucerah's evidence, at [39]-[49]. Detailed criticisms were made of aspects of this, and it is best reproduced in its entirety, despite its length. "39 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. 40 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)). 41 (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. 42 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 suggests, taken alone that only 2 riser shutters were in place as Mr Zaya had said. But when cross-examined Mr Abunucerah said 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'. 43 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). 44 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). 45 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). 46 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 the 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). 47 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). 48 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). 49 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."
9. The primary judge then addressed Mr Valletta's evidence, stating at [51] that he preferred Mr Abunucerah's evidence about reporting the accident on 4 April 2012 immediately after it occurred. His Honour referred at [52]-[54] to a part of Mr Valletta's unsigned statement, which gave rise to a number of grounds of appeal. Those paragraphs were as follows: "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). 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. 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."
10. The primary judge thereafter referred at [55] to Mr Valletta's evidence in cross-examination, largely to the effect that he did not recall what Mr Abunucerah had said about a conversation concerning the removal of part of the formwork, and at [56] to his evidence that it was possible to walk on a staircase a couple of days after it had been poured, with the formwork still in place.
11. No submissions were made about the reasoning concerning whether there had been an admission by silence (which is directed to whether there was a direction from Mr Valletta that the PNT formworkers cease removing the formwork), and which may accordingly be passed over.
12. Under the heading "Assessment of the evidence on the formwork issue" the primary judge dealt with two sub-issues: the state of the formwork on 4 April 2012, and whether, if two steps remained with formwork fixed to them, that had been because of the intervention and direction of Mr Valletta.
13. His Honour said at [66]: "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."
14. That approach is entirely orthodox. His Honour's language is derived from what was said in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]: "[I]n recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical." (citation omitted)
15. The primary judge made a nuanced finding about Mr Zaya's testimony: at [68]. He said that his evidence was at times difficult to follow, but that there was nothing which suggested any overt dishonesty, and that he was not cross-examined on the basis that he was dishonest. Nonetheless, his Honour noted that there were aspects of his evidence which caused him to question the reliability of Mr Zaya's evidence. 1. One was the absence from an earlier statement, itself only prepared on 5 March 2018, of the presence of two remaining riser shutters on the lower flight of stairs in staircase 3: at [69]. 2. Another was that the pleading and particulars did not spell out that aspect of the case. The primary judge explicitly accepted that the particularised case that the staircase had not been properly stripped of formwork was consistent with the case, but that it was not until an amended pleading was filed, during the trial, that any of the material "explicitly spells out Mr Zaya's case about falling because of two remaining and unexpected riser shutters": at [70]. 3. His Honour also noted at [71] that the medical histories were consistent with the case ultimately presented, but likewise did not refer in terms to the unexpected presence of formwork on two of the steps: at [71].
16. His Honour turned to Mr Abunucerah's evidence at [72]-[74], describing his "generally favourable impression", but qualifying this by the fact that he had been shown Mr Zaya's evidentiary statement prior to giving evidence. His Honour said that there was force in the submission that Mr Abunucerah's evidence that there were two steps with formwork still in position might have been influenced by Mr Zaya's evidentiary statement; a fact which was absent from every other document Mr Abunucerah had prepared, including on the day - both in the description of the incident, and in the remedial action proposed. His Honour concluded this part of the reasons by stating at [74] that: "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."
17. The primary judge dismissed Mr Valletta's evidence, stating that save in one respect: "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": at [75].
18. After that survey, his Honour stated at [76] that: "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."
19. His Honour identified the contemporaneous records which were silent as to Mr Zaya's account (at [77]-[80]), and dealt with another issue (complaints about the production of documents) in a way which was not the subject of criticism on appeal: at [81]-[82].
20. The primary judge then made "Findings of fact" under a separate heading. This was expressed to be the dispositive part of the judgment. It is as follows: "83 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. 84 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. 85 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 given 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. 86 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'. 87 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. 88 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]. 89 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. 90 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. 91 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. 92 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. 93 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. 94 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. 95 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 the 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. 96 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'. 97 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. 98 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. 99 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)."
21. It will be seen that the analysis is detailed and nuanced. His Honour brought to bear a range of matters in reaching the ultimate finding that Mr Zaya's case that there remained unstripped formwork on two steps in staircase 3 had not been made out. There was no finding of reconstruction, let alone recent invention or fabrication. However, in his reasons his Honour had regard to (a) the absence of any contemporaneous record, (b) the obvious imperfections in the recollections of Mr Zaya (including as to the absence of PNT workers) and Mr Abunucerah (including as to when it occurred), and (c) the inherent improbability that a small component of what itself was a 1-2 hour job - stripping the formwork from the staircase - had been left undone, something which was readily described and would have been remarkable had it occurred. It is to be borne in mind that the event of slipping and falling on a staircase on a building site, with the worker walking away and not obviously requiring immediate medical attention, is scarcely a remarkable event, and that all witnesses were giving evidence of events of more than six years previously.
22. It might be thought that only if there could be shown to be some fundamental misunderstanding of an aspect of the evidence, or some significant evidence which had been entirely overlooked in his Honour's analysis, could there be any real prospect of success on appeal. Indeed, the principal reason for reproducing so extensively his Honour's reasoning is to enable my reasoning about the insufficiency of the submissions made on behalf of Mr Zaya to be readily assessed.
23. The so-called fifth further amended notice of appeal contained 18 grounds, many including sub-grounds. It was not said that there had been any fundamental misunderstanding of the evidence. It was not said that there was some significant aspect of the evidence which had been overlooked. It will be seen instead that many of the grounds attack minor and on occasion minute aspects of the reasoning.
24. I shall address each ground in turn, in the order given in the final iteration of the notice of appeal. That was the order adopted in the appellant's submissions, notwithstanding that the claims of procedural unfairness and the application to tender further evidence should logically have come first.

Ground 1: The primary Judge failed to adequately consider all of the evidence and arguments on the liability issues, for the reasons set out in the grounds of appeal below and in the appellant's written submissions. For this purpose the appellant relies upon the delay of the primary Judge in delivering judgment, in that there was a delay of 53 weeks between the end of the hearing (2 May 2018) and the date of delivery of his reserved judgment (8 May 2019).

1. During oral submissions, Mr Gross confirmed that this was not a free-standing ground of appeal, but merely was a factor in assessing the alleged errors in factual finding the subject of other grounds. "We appreciate that is not, per se, grounds of appeal. All we're doing is signalling that that's an argument which adds weight to the proposition that the primary judge did not properly consider the whole of the evidence." That concession was properly made: Monie v Commonwealth of Australia (2005) 63 NSWLR 729; [2005] NSWCA 25 at [3] and [44]; Mekhail v Hana [2019] NSWCA 197 at [100]. It will be obvious from the above that while the delay was lengthy, the reasons exhibit a very close analysis of the detail of the documentary and testimonial evidence.

Ground 2: The primary Judge erred (at Red [93]) by drawing adverse inferences against the appellant from his failure to call as a witness any of the formworkers of the sub-contractor PNT who had been on the site on the day of the accident.

1. This ground turns on [93], which although it is in the lengthy passage reproduced above, may be repeated for convenience below. "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."
2. In support of this ground the appellant observed that PNT and its employees were not in Mr Zaya's "camp", and that attempts had been made by the solicitors acting for Energised Alliance, to obtain production on subpoena of document relating to the incident, and the proper officer of PNT had advised that there were no physical or electronic documents held. It may therefore be doubted that, years after the event, an employee might have recalled anything concerning a slip and fall which, it appears to have been common ground, was regarded by all as a minor incident in April 2012.
3. No adverse inference is to be drawn in relation to the plaintiff's failure to call employees of a third party such as PNT in a case such as this. This ground and Mr Zaya's submissions in support of it regard the inferential process of reasoning in [93] as "an unfavourable inference" and "an adverse inference". However, no such inference was drawn. All that the primary judge said he was doing was inferring that testimonial evidence from PNT workers would not have advanced the plaintiff's case. On the evidence, including the non-availability of documents on subpoena, that inference was correct. It is a separate thing to conclude that the evidence from PNT would have adversely affected Mr Zaya's case. The distinction may be a fine one, but there is no reason to doubt, in the careful reasoning of the primary judge which distinguished between a failure to make out a case as opposed to positive findings of reconstruction or fabrication, that his Honour was well-attuned to it.
4. Further, [93] commences with "the speculation I have just referred to". That is a reference to the concerns articulated by the primary judge of the "apparent logic of events" which were inherent in Mr Zaya's case. It is to be recalled that Mr Zaya's case, which ultimately went to trial, was that formwork remained in place near the top of the lower flight of steps. The primary judge was perfectly entitled to assess the inherent probability of that occurring. That is what his Honour did at [92]: "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."
5. I see no error in the observation that the PNT workers would, had they been called, been unable to provide evidence explaining this aspect of Mr Zaya's case.
6. Finally, his Honour's observation that the result was to favour the competing evidence that the formwork was complete accords with the foregoing. The primary judge had to determine whether Mr Zaya's case that two steps' worth of formwork remained on staircase 3 creating a hazard was or was not made out. The onus lay on Mr Zaya. The presence of residual formwork would have been remarkable, and accorded with Mr Zaya's recollection. However, it is difficult to reconcile with the absence of any mention of it in the incident report, or in the statement prepared by Mr Abunucerah before he had been shown Mr Zaya's March 2018 statement. And Mr Zaya's recollection that he had telephoned PNT workers, who were absent on the site, was inconsistent with the attendance records. In weighing up the evidence which pointed in different directions on this key issue, the primary judge was correct to state that the absence of such evidence had the result of favouring the evidence pointing against Mr Zaya's contention.

Ground 3: The primary Judge erred on the facts (a) by concluding (at Red [93] and [99]) that evidence established the probability that the formwork on staircase 3 was wholly intact and unstripped at the time of the appellant's accident, when such conclusion was not reasonably available on the evidence, and when EA's counsel did not cross-examine the appellant to suggest that the formwork on staircase 3 was wholly intact and unstripped when he fell;

1. Sub-ground 3(a) was the only sub-ground developed in the appellant's written submissions in chief. It was not developed orally.
2. The short answer to this ground is that it is no answer to a finding that a plaintiff has not made out his case to say that the defendant did not cross-examine the plaintiff to suggest that the staircase was wholly intact and unstripped.
3. Irrespective of the course adopted in cross-examination, the onus lay with the plaintiff, and the primary judge had to be actually persuaded that there was formwork left unstripped on two steps in staircase 3, in circumstances where that was inherently improbable and, if it had occurred, might be thought likely to have been obvious and likely to have been recorded contemporaneously. After all, the incident report signed on the day or the following day by Mr Zaya and Mr Abunucerah, referred as the "corrective action" to "removal of formwork at staircase 3". It referred to this as a job to be done in the next week. If there was formwork on two steps, it would have been a matter of a few minutes work to remove it, for Mr Zaya accepted that removing formwork from the entire staircase was a 1-2 hour job.
4. A further indication of the artificiality of this ground is the fact that the finding of which Mr Zaya complains was squarely advanced on behalf of Energised Alliance at trial. Its closing submissions contended that "a great deal more, if not all, of the formwork remained on the stairs at the time of any alleged fall" and "[t]he Court should accept that no formwork had been removed at the time of the alleged fall…". Those submissions were made in paragraphs 88 and 104 of submissions dated 1 May 2018. The latter paragraph was expressly responded to in Mr Zaya's written submissions in reply, but not on the basis that something more needed to have been put in cross-examination or that there was no evidence for the submission.
5. In written submissions in reply, but not orally save that Mr Gross expressly directed the Court to them, Mr Zaya advanced an elaborate submission based on the chronology. It was said that Mr Abunucerah had previously been working on the assumption that the staircase had only been poured 21 days before the accident, but at trial appreciated that contemporaneous records showed that the stairway had been poured 35 days prior to the accident. It was then said that: "Just as Mr Abunucerah recognised this error of calculation and the fact that the timetable for removal of formwork had already elapsed, it becomes feasible that: (a) when completing the form Mr Abunucerah's note that it was still a week before the formwork had to be removed from the staircase 3 was wrongly calculated; and (b) Mr Valletta at some stage after the earlier conversation with the appellant and Mr Abunucerah about removing the formwork had himself belatedly realised that the formwork was long overdue for removal and therefore had given express directions to the PNT formworkers to begin the removal of the formwork."
6. It is not necessary to analyse that speculative line of reasoning in any detail. It does not bear upon this ground of appeal.

The primary judge erred on the facts ... (b) by failing (Red [50]-[54]) when describing Mr Valletta's 'subsequent inspection' to pay due regard to the fact that Mr Valletta in effect gave evidence that the staircase had been stripped of all form work, which was inconsistent with the primary Judge's finding that when the plaintiff and Mr Abunucerah descended staircase 3 the formwork was completely intact;

1. Unlike sub-ground 3(a), sub-ground 3(b) was addressed orally. It focusses attention on parts of the reasons of the primary judge referring to the salient evidence, as opposed to assessing it.
2. Paragraphs [50]-[54] refer to his Honour's description of Mr Valletta's evidence. It is only later, under the heading "Findings of fact", that Mr Valletta's evidence was weighed in the balance with that of the plaintiff and Mr Abunucerah and the contemporaneous documents and the inherent probabilities. When that occurred, the primary judge favoured the evidence of Mr Abunucerah: "in most respects, other than in relation to matters where [Mr Valletta's] evidence accords with known facts or with the testimony of Mr Abunucerah, it should be put to one side": at [75]. There was one exception to this, noted at [98], but that is not materially relevant.
3. That is to say, this sub-ground complains of paragraphs in a judgment which do not attempt to evaluate the competing evidence, and are directed to the evidence of a witness which was not accepted. Even if the complaint were made out, it would not affect any material part of his Honour's reasoning.
4. But the ground is not made out in any event. The alleged failure was said to be a failure to pay due regard to the fact that Mr Valletta "in effect gave evidence that the staircase had been stripped of all formwork". The ground was based on his witness statement. But the witness statement does not "in effect" assert that the formwork had been stripped from the stairway. It refers to "no objects in the way", "no water ponding" and "nothing that could have caused Andrew's fall". The evidence was clear that, after concrete had been poured to produce a staircase, it could be walked on by foot after two days had elapsed, although the formwork would remain in place for weeks. There is no reason to read paragraph 24 of his 2013 unsigned witness statement as asserting that the staircase had been stripped of all formwork.
5. In summary, ground 3(b) is not made out, and if it were made out, it is not material because of the later rejection of Mr Valletta's evidence.

The primary judge erred on the facts ... (c) by concluding (Red [53]) that Mr Valletta was here referring instead to his inspection of staircase 1 when this conclusion was inconsistent with other evidence summarised by the primary Judge (at Red [16], [43], [52], [53], [54], [93] and [99]), and neither Mr Valletta nor Mr Abunucerah had given any such explanation in their written or oral evidence.

1. It is convenient to reproduce paragraph [53] of the reasoning of the primary judge, on which this ground turns: "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."
2. Mr Gross described the judge's reasoning thus: "The primary judge lets Mr Valletta off the hook by thinking he must have gone and looked at the wrong staircase." and, more fully when he was pressed: "Mr Valletta didn't offer that up as explanation and so you have got a situation where the primary judge has attributed to Mr Valletta a very basic mistake which Mr Valletta does not admit he made or that Mr Valletta hasn't even turned his mind to as whether he made that mistake. In light of the nature of Mr Valletta's job, it would be rather silly and unbelievable if he said, 'I went to the wrong stairway. That's why'."
3. I think something has gone wrong with the language of this paragraph. Staircase 1 had been poured on 2 April 2012, and there can be no real doubt that formwork remained in place two days later. Perhaps the primary judge was not intending to refer to staircase 1, or perhaps there is a missing "not". An error of this nature appears at [16] in the reasons, which state that "This staircase [viz staircase 3] had been poured on or about 27 February 2012 (418.47T). Staircase 1 had been poured somewhat earlier" (emphasis added). But staircase 1 had in fact been poured on 2 April 2012, some 5 weeks later. The names given to the staircases are somewhat unevocative, and when it is borne in mind that number 3 is towards the north and number 1 towards the south, and number 3 was poured before number 1, it is easy for a slip to occur.
4. It is not necessary to pursue this inquiry any further. Whatever the error is, it is in a portion of the judgment which is not material to any of the orders made. This sub-ground goes nowhere.

Ground 4: The primary Judge erred (at Red [39], [42]) when rejecting Mr Abunucerah's evidence that he first noticed the two riser shutters on the lower flight of the staircase when, after descending the staircase to attend to the injured appellant lying at the foot of the stairs, he was about to ascend the staircase with the injured appellant, in that the primary Judge wrongly relied on reasoning that Mr Abunucerah said that beforehand, while he was ascending the staircase in order to go to the appellant's aid, he had not noticed the two riser shutters.

Ground 5: The primary Judge erred on the facts by misunderstanding and rejecting the evidence of Mr Abunucerah as to his observations that the staircase had been incompletely stripped of formwork leaving only two riser shutters remaining, including by relying for this purpose upon his description of Mr Abunucerah's drawing on MFI 8 as being "a sample" (at Red [42]).

Ground 6: The primary Judge mistook the facts and misconceived the evidence by concluding from Mr Abunucerah's evidentiary statement dated 7 March 2016 (Exhibit 2DC) "From this there is nothing to suggest that only two riser shutters were in place when Mr Zaya fell" (at Red [40]-[41]).

1. These three grounds may be addressed together.
2. First, and once again, they are directed to the part of the judgment where his Honour recited the testimonial evidence which bore upon the issue of the residual formwork on two steps, rather than upon the evaluation of that evidence. For that reason alone, the grounds cannot impugn the judgment from which Mr Zaya appeals.
3. Secondly, when the grounds are examined in detail, they can fairly be described as pettifogging. The first aspect of ground 4 concerns paragraph [39]. The only remotely critical sentence in that paragraph is "It is difficult to understand why he would not have noticed this on the descent". The complaint made here is a truly minor one. The appellant complains of this sentence, pointing to the fact that there had been a "dramatic, startling and distressing event" which resulted in a colleague falling on the basement floor. But nothing whatsoever turns on whether Mr Abunucerah's recollection of noticing the formwork occurred as he descended or as he ascended.
4. The second aspect of ground 4, and ground 5, are based on [42], which was as follows: "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 Abunucerah [said] 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. It will be seen that there are tentatively worded criticisms in the first sentence and the last two sentences. Insofar as this ground is based on the first sentence of [42], it is indistinguishable from the attack made upon substantially the same comment in [39].
6. The point made orally in support of this ground, and at some length, was that the last two sentences misstated the evidence of Mr Abunucerah. Even if that were so, it occurs in a non-dispositive part of the reasoning. But I do not think that there was any mis-statement.
7. The whole of the context of this part of the cross-examination was as follows: "Q. You knew, didn't you, that other people besides yourself will have to look at this statement and they would like to rely upon what it says is your recollection of the truth, didn't you? A. Yes. Q . So when you came to sign the bottom of each page of it, I take it you took care to read it and make sure you agreed with it at the time? A. Yes. Q. Based upon your recollection? A. Yes. Q. So, for example, when we go paragraph 13 of your statement and it reads, in part: 'On our way out of the basement, I noticed the formwork was still in place on the stairs', isn't the case that what you intended to communicate was that all of the formwork was still in place on the stairs? A. No. Q. You didn't check to make sure it read that the formwork was incomplete or partial, did you? A. No. Q. And when we look at the diagram that you talk about in paragraph 13 - do you have that diagram there? It should be at the back of the statement? A. Yes. Q. We see, in [Plan] view, that you've just drawn plywood on one of the stairs; is that right? A. Yeah, that was as a sample. Q. And then we see Elevation also shows some drawings of formwork, is that also a sample? A. Yes."
8. That cross examination was based upon Mr Abunucerah's description of the formwork on the staircase in his statement which is reproduced above.
9. What was said orally in support of this submission was: "his Honour basically misread the evidence from that, and unfairly attributed to the word 'sample' the meaning 'a sample of what is on all of the stairs from top to bottom', as distinct from it being a characteristic of the two offending stairs"; and "the cross examination using the word 'sample' and repeating the word 'sample' wasn't something which could fairly be taken by the primary judge as undermining the evidence of Mr Abunucerah, who was making it quite clear in his evidence that what they saw was two stairs with riser shutters on, with timber work, and not the entire stairway".
10. It is to be borne in mind that the witness volunteered that the diagram drawn was "a sample". (It is possible that that is a transcription error for "an example"; if so nothing turns on this; the sense is materially identical.) I see no error at all in the primary judge's description of Mr Abunucerah's evidence. There is nothing in the statement to suggest that Mr Abunucerah was corroborating Mr Zaya's case that there was residual formwork on two steps. It is possible that Mr Abunucerah's answer - which was, strictly speaking, non-responsive: volunteering that the formwork was a "sample" (or "example") - may have reflected his defensiveness when it was being put to him that his oral evidence that there was formwork on two steps was not found in his statement. As noted above, the primary judge considered that there was force in the submission that Mr Abunucerah's oral evidence was affected by his having read Mr Zaya's March 2018 witness statement. But it is sufficient for present purposes to observe that there is no error in what the primary judge recorded in this non-dispositive passage in his reasons.
11. It is to be borne in mind that the primary judge spent some 66 paragraphs resolving the key question of fact which arose on Mr Zaya's case, and that these paragraphs challenged in these grounds are found in the introductory section where the competing testimonial evidence is summarised.
12. Ground 6 had two components. One was inconsequential even by the standards of the challenges advanced in this appeal. It turned upon the presence of the unobjected word "otherwise" in a portion of Mr Abunucera's statement reproduced above. It was said in writing that: "the answer at Blue 183B-F became contracted and distorted when EA's counsel persuaded the primary Judge to reject the first sentence, which was then 'rejected in that form' (Black 331X-332D). This truncation made it unfair to reject Mr Abunucerah on the basis of what was not stated explicitly, particular as the words still appeared 'I otherwise have no recollection' (emphasis in paragraph 29 of the appellant's written submissions) ."
13. The submission was elaborated orally: "Now, of course when originally signed - originally typed and signed, there was the sentence we have in the top three lines there. So when you've got the word 'I otherwise', that's pointing out that apart from what's already said, I have no recollection of the removal having been interrupted et cetera. Now, it is unfair to take that truncated paragraph, truncated in accordance with the laws of evidence and the objections made, and basically to use that against the plaintiff."
14. After taking the Court to [41] of the judgment, Mr Gross continued: "Now, the 'dot dot dot' where words have been removed involves the removal of 'otherwise'. So you can't fairly read that paragraph and omit from consideration that Mr Abunucerah is basically saying, 'Apart from what I've already said, I have no recollection blah blah blah.' But then the primary judge says at (h) to (i), 'From this there is nothing to suggest that only two riser shutters were in place when Mr Zaya fell.' We submit that if in fact a statement has been truncated for fair reasons on the laws of evidence, one has to be far more careful in drawing meaning from a statement which is necessarily incomplete because part of what was intended to be conveyed is no longer there."
15. It is to be recalled that the issue to which the analysis of the primary judge was directed was whether formwork remained on two steps on staircase 3, a remarkable fact which was said to have caused Mr Zaya to slip and fall, and which might have been expected to have appeared in Mr Abunucerah's statement. There ensued the following exchange: "LEEMING JA: I don't understand the submission. Sorry, I really don't. You accept that the first sentence of para 21 was properly objected to? GROSS: Yes, I do. LEEMING JA: What is there that remains unobjected to that does suggest that only two riser shutters were in place when Mr Zaya fell? GROSS: Well - LEEMING JA: You say that's the error that's ground 6? GROSS: Could I add some context if I may? One of the complaints we have is that the judge basically says there are no contemporaneous versions et cetera, and it isn't until March 2018 that it's all disclosed. Now, there's error in looking for a prior inconsistent statement anyway, but basically the primary judge is using part of this in order to say, 'None of this - there's no real statement about, in effect, two riser shutters being there in the early stages.' Mr Abunucerah, despite his oral evidence, in effect is saying something inconsistently in this type-written statement when we take the truncated paragraph. So we submit that when we go to - we also have to go back to question - heading (xii), 'A response to the allegation there was poor communication between the site supervisor, particularly regarding the lack of communication that the formwork removal had not been completed.' Now, true the statement does not say only two were there. Plainly the allegation is that - which is proposed to be answered in effect is dealing with an allegation that the formwork removal cannot be completed. It had been started, but it hadn't been finished. Now, it's true that we're not using the expression 'two steps', but basically when we look at the answer even as truncated, what you've got is I otherwise - 'So otherwise I have no recollection of the removal of the formwork having been interrupted.' So - GLEESON JA: That's otherwise than referred to in the previous sentence. GROSS: Yes. So if in fact that statement is to be used to undermine Mr Abunucerah, it has to be recognised by the trial judge that the meaning of what Mr Abunucerah has to say in his statement is now incompletely expressed because there's been a deletion of other parts of his answer. So we then go, your Honours, to ground 7. ..."
16. There is nothing in this point. First, the admissible portion of Mr Abunucerah's evidence was not "rejected". This part of the judgment merely recited the parts which bore upon the key issue. The part of the judgment which assessed the evidence plainly proceeded on the basis that Mr Abunucerah had given the best evidence of what had occurred six years ago, although like the other two main witnesses, his recollection was faulty.
17. Secondly, there was nothing remotely "unfair" in what occurred. Mr Abunucerah's statement was in part inadmissible. Objection was taken to it, and ruled upon. Mr Gross accepted the correctness of the ruling.
18. Thirdly, the submission focusses upon the word "otherwise" in the third sentence of the paragraph in its original form. The word made clear that the third sentence was qualified by what preceded it. On any view, the third sentence was qualified by what was in the second sentence which immediately preceded it. There might perhaps be a question whether the qualification extended to what had been said in the first sentence of the paragraph. Any such question would be peculiarly arid, because objection was taken to the first sentence, and it was properly rejected. None of that called into question the accuracy of the word "otherwise" in the third sentence, which still performed its original role of qualifying that sentence by what had been said in the immediately preceding sentence.
19. Fourthly, the result of the ruling was that on any fair reading of the evidence there was nothing to suggest that only two riser shutters were in place.
20. There is a further aspect of this ground, although it was not developed orally. It was said that this part of Mr Abunucerah's statement reflected the fact that "[t]he investigator was the editor and master of the wording of the document" and that it obviously reflected a response to the Burn report. That report is addressed below in ground 8 below.

Ground 7: The primary Judge erred by mistaking the evidence and its effect:

a) by stating "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" (at Red [70]);

b) by stating "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" (at [71]);

c) by concluding "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" (at Red [76]).

1. I did not understand Mr Gross to contend that there was any error in the statements taken from [70], [71] and [76] of the reasons of the primary judge. If I am wrong about the absence of complaint, I would reject it; the fact of the matter is that each of those paragraphs accurately summarised the evidentiary vacuum as to a case based on the unexpected presence of two riser shutters.
2. The gravamen of ground 7, as articulated on appeal, is not the description given of the evidence, but an attack on the implied mode of reasoning that it was necessary for a plaintiff, in order to succeed, to be able to point to some relatively contemporaneous documentation. It was put variously in oral submissions: "One of the complaints we have is that the judge basically says there are no contemporaneous versions et cetera, and it isn't until March 2018 that it's all disclosed. Now, there's error in looking for a prior inconsistent statements [sic] anyway, but basically the primary judge is using part of this in order to say, 'None of this - there's no real statement about, in effect, two riser shutters being there in the early stages.'"
3. The submission ultimately put in writing was as follows: "The underlying reasoning ultimately became that the absence of prior consistent statements being found in the evidence meant that the Court should not accept the plaintiff's allegations as to either the 'pertinent information' regarding the formwork on staircase 3 and also that his alleged post-accident conversations with the PNT formworkers and Mr Valletta should be rejected."
4. That is an incorrect characterisation of the reasoning process of the primary judge. Mr Gross was confronted with the fallaciousness of this proposition during the hearing: "GLEESON JA: Was not the judge doing something different? If you look at Red 100N? GROSS: Just pardon me a moment, your Honour. GLEESON JA: Paragraph 69 of the judgment. GROSS: I'm sorry. GLEESON JA: The judge was looking at what weight could be given to the witness statement of the plaintiff given the lateness at which it was produced. That was what he was doing. He wasn't saying: 'I'm hunting around for contemporaneous material', he's saying 'What weight can I give this statement?' And then he contrasted that with the chronology of the pleading et cetera. Which I would observe, Mr Gross, on one view of the pleading - red 100 letter W, allowing the plaintiff to proceed down the concrete stairs with formwork still intact. It's only a pleading but it would give the inference that all of the formwork is intact."
5. After that was raised, Mr Gross moved on to ground 8. That approach reflected the reality that there was no answer to what had been raised by the Court, and no substance in this ground.
6. Naturally, a plaintiff may succeed in the absence of documentation. The plaintiff's case will be made more difficult, if such documents as exist suggest that the plaintiff's case would have been documented, and in particular if existing documents are inconsistent with aspects of the plaintiff's case. Ultimately, however, the task for the finder of fact is to assess the entirety of evidence which bears upon the issue and make a finding. There is no reason to suggest that the primary judge departed from what are, after all, orthodox principles of fact finding. The criticism that the primary judge implicitly proceeded on the basis that Mr Zaya was under an obligation to tender contemporaneous documents corroborating his account was unfounded.
7. Mr Zaya's case was made complex because there was a dispute as to whether there was any formwork at all, because the trial was more than six years after the event, and because there were contemporaneous documents which to a greater or lesser extent diverged from his recollection of what had happened.
8. In reply - although Mr Gross very properly acknowledged that his submissions went beyond reply - a short case was made that there were many unreliable aspects of the contemporaneous documents maintained by Energised Alliance and Silver Raven. That submission may have reflected what was intended to have been said in support of ground 12(b), which was abandoned without warning when the appeal was heard. But it was necessary for the primary judge to evaluate all of the evidence, and there is no reason to doubt that the primary judge had regard to the possibility that documents at the time were incorrect or incomplete. Indeed, his Honour attended to this expressly, at [81]-[82]. The oral submissions made at the end of the hearing, in the time ordinarily permitted for reply, did not address those paragraphs.

Ground 8: The primary Judge erred in law by failing to provide procedural fairness when in the above quoted passages (at Red [70], [71] and [76]) he relied upon reasoning that the appellant's allegations (that he had fallen because of the unexpected presence of only two steps having been left without their formwork stripped and that Mr Valletta as EA's site supervisor had directed the PNT formworkers to cease stripping the formwork from the stairs) were all recent inventions by the appellant. This was procedurally unfair as:

a) EA's counsel did not cross-examine or make submissions to the effect that there was recent invention by the appellant and that there had been no previous communication by him or on his behalf consistent with his pleadings and evidence in 2018;

b) the primary Judge did not foreshadow any such potential reasoning;

c) the appellant was deprived of the opportunity to counter any "recent invention" argument by tendering (on a limited basis) the report of Mr Ian Burn, consulting engineer, dated 16 April 2014 and correspondence between the parties regarding same, as well as any other evidence to show there were prior consistent statements made by the appellant;

d) the appellant lost the opportunity to make submissions contrary to any such "recent invention" argument.

Ground 9: Further, even without regard to Mr Burn's report dated 16 April 2014, the primary Judge erred because he had inadequate material to safely found his conclusion as to recent invention of such allegations as a basis for rejecting the appellant's evidence and accepting Mr Valletta's evidence on these disputed matters.

1. Ground 8 made the serious allegation that there had been a trial that was procedurally unfair.
2. This ground was supported by precisely two sentences in written submissions in chief: "The relevant principles as to procedural fairness are stated in Nemeth v Australian Litigation Funders Pty Limited [2014] NSWCA 198 at [179]-[181]; Ball v McInerney [2014] NSWCA 331 at [56]-[58]; Katter v Melham [2015] NSWCA 213 at [87]-[94]. The appellant's argument is sufficiently stated in Ground 8 and under Ground 10. The 'limited basis' referred to in (c) above is explained in Ground 10."
3. In response to Energised Alliance's written submissions that the primary judge had made no finding of "recent invention", the submissions in reply said that there was no need to find recent invention but that the finding was based on a "reconstruction (whether deliberately or otherwise)" by Mr Zaya, and relied on s 108(3) of the Evidence Act and a passage from Wojcic v Incorporated Nominal Defendant [1967] VR 263 at 268: "[I]n some of the early statements of the rule regarding the rebuttal of imputations of recent invention it is said that the confirmatory statements must have been made before there was a motive to invent. Recent authoritative statements of the rule, however do not limit it in this way..."
4. But the appellant's oral submissions reverted to an untenable broader submission. Mr Gross said: "Now, ground 8, the first one, counsel didn't cross examine or make submission - the fact that it was a recent invention by the appellant or there'd been no previous communication by him on his behalf consistent with his pleadings in evidence - and which he later gave - there's no foreshadowing by the primary judge and so if, in fact, that had been foreshadowed, we would have then been able by reason of the capacity to tender evidence to counter any recent invention argument or reconstruction argument - the report of Mr Burn on that limited basis. And also we've lost the opportunity to make submissions contrary to such recent invention argument. Now, in terms of ground 9; for ground 9, the argument speaks for itself. So ground 10, we give notice we will seek to tender Mr Burn's report only for the limited purpose of demonstrating that if such recent invention arguments had been argued or been foreshadowed, the prior consistent allegations by the plaintiff to Mr Burn would have fully countered any such suggestion of recent invention. Now, of course, that requires application by us under s 75(a)(7) and (8) of the Supreme Court Act and we make that application. Your Honours, the LEEMING JA: I'm sorry, you're moving quite quickly, which is good but there's an elision which might be important, that's why I'm slowing you down. You've mentioned 'Recent invention' repeatedly. Sometimes you've said 'Recent invention and reconstruction' or 'Reconstruction'. Sometimes you've just said 'Recent invention'. GROSS: Yes. LEEMING JA: Do you say there was a finding of recent invention?
5. Eventually, Mr Gross confirmed that he accepted that no such finding of recent invention had been made. Nonetheless he submitted that it was still necessary for there to have been some foreshadowing of the approach that might be taken.
6. I do not accept the submission.
7. First, there is an unsatisfactory aspect to the way these grounds have been advanced. They should never have been framed in terms of recent invention. nor should the appellant's written submissions in chief have been so framed. Still less should that have been advanced in oral submissions. The serious allegation that a trial has been procedurally unfair should only be made where there is a proper foundation.
8. Secondly, the ordinary approach is for such an allegation to be addressed at the outset; there is after all little point in reviewing impugned findings of fact if it is to be said that the trial was procedurally unfair.
9. Thirdly, it was perfectly plain that parts of Mr Zaya's recollection were unreliable. His recollection that there were no PNT workers on the site that day is perhaps the most obvious aspect of this. He was squarely confronted with this in cross-examination: "Q. If you go over the page, in your statement, to paragraph 16, you said that earlier on the day of the accident, you didn't see any PNT employees on the site? A. Not that I remember. Correct. Q. What I want to put to you is that there were at least five PNT employees working on the site that day. Isn't that the case? A. I can't remember exactly, honestly."
10. During closing submissions, counsel for Energised Alliance said, in relation to whether Mr Valletta directed PNT to desist from stripping the formwork: "So in my submission your Honour needn't find in any pejorative sense that Mr Zaya is trying to mislead the Court in any way. It's simply a case of his recollection not being in accordance with the contemporaneous material and not being plausible in any way given the inherent unlikelihood of such a direction being given."
11. Ultimately the primary judge concluded that Mr Zaya's testimony, together with such other evidence as there was which was supportive of his claim that formwork remained on two steps of staircase 3 on 4 April 2012, was insufficient to make out his claim. That is what not uncommonly occurs when testimonial evidence is given many years after the event. There was no finding adverse to Mr Zaya in the sense that the primary judge found that his evidence was reconstructed. (The outcome was adverse to Mr Zaya, but that is a different issue.)
12. There was nothing procedurally unfair in what occurred. It was quite plain that Mr Zaya's memory was imperfect (no differently from that of Mr Abunucerah and Mr Valletta). And it was squarely put in issue whether the slip and fall happened at all. Test the matter this way. Was it really necessary for the primary judge to say that he was contemplating finding that Mr Zaya's imperfect recollection might not be sufficient to satisfy him to the civil standard that two steps had remained covered by formwork? This was, truly, so obvious that it went without saying.
13. Ground 9 falls away. It is premised upon a finding of recent invention. Mr Zaya belatedly conceded there was no such finding.

Ground 10: ln support of the appellant's argument herein as to failure by the primary Judge to provide procedural fairness, the appellant gives notice that it will seek at the hearing to tender Mr Burn's report dated 16 April 2014 only for the limited purpose of demonstrating that if any such "recent invention" arguments had been argued or squarely foreshadowed, the prior consistent allegations by the appellant to Mr Burn would have fully countered any such suggestion of recent invention. For this purpose, the appellant gives notice that he will seek to tender an affidavit in the Court of Appeal annexing the report of Mr Burn dated 16 April 2014 together with correspondence concerning that report, relying upon s 75A(7)-(8) of the Supreme Court Act 1970 (NSW), on the basis that there are "special grounds" under s 75A(8) and that the Court's discretion under s 75A(7) ought be exercised to receive this evidence.

1. This ground falls away too. It is premised on findings of "recent invention". There were no such findings. However, that is not the only reason this ground is not made out.
2. The Court received the document towards the end of the hearing and (albeit only after being requested to do so) Mr Gross indicated what was sought to be made of it.
3. The high point of the report, so far as concerns Mr Zaya's case on appeal, is that it includes a reference to Mr Burn's understanding that the accident occurred when "after passing the mid-level landing Mr Zaya walked down steps where he encountered two steps that had not had formwork stripped". It includes a sketch of the flight of steps with formwork on two steps.
4. The understanding of Mr Burn came either from his instructions (which were not included in the report or the application to tender further evidence) or from a conference with Mr Zaya. In either case, there is nothing to suggest that it was contemporaneous. The conference with Mr Zaya must have occurred after Mr Burn was retained (on 20 March 2014) - which is more than two years after the accident.
5. Further, Mr Burn's report proceeded on the basis, obtained either from Mr Zaya personally or his solicitors, that it was Mr Zaya who instructed that the wooden formwork be removed from the staircase. Mr Zaya denied in evidence that he gave any such instructions, and indeed challenged on appeal the finding of the primary judge that the instruction would have emanated from Silver Raven (ground 15(a)).
6. It is plain from the opening of the trial, when Mr Gross announced before any opposition had been articulated, that he would not be relying upon Mr Burn, that a forensic decision was made not to tender that report. (The opening included reference to a subsequent report from Mr Burn, which likewise was not tendered. No application was made to tender it on appeal.) Had it been tendered, the cross-examination of Mr Zaya would more likely than not have reflected what appears from the report about who gave the direction to remove the formwork.
7. In principle, if there has been an unforeseen denial of natural justice, it might be open to seek to tender further evidence on appeal, notwithstanding that a forensic decision had been made in relation to that evidence at trial. But that is not this case. Further, insofar as the report made two years after the event contains some aspects which support Mr Zaya's testimony, it also contains aspects which detract from his testimony. The criteria for admitting Mr Burn's report on appeal are not satisfied.

Ground 11: The primary Judge erred in his consideration of the evidence of Mr Abunucerah by relying unduly (at Red [48]) on passages of his evidence summarised (at Red [48]) as to what he did not remember, what his recollection was and the vagueness of his recollection on certain matters.

1. The written submissions put that the matters to which the primary judge referred at [48] were minor, inconsequential peripheral details. The oral submissions were to substantially the same effect. It is sufficient to note that this ground cavils with non-dispositive aspects of the reasons, which are not expressed to and could not affect the orders challenged on appeal.

Ground 12: The primary Judge erred in failing to adequately consider, and give sufficient reasons for his decision concerning, whether to draw adverse inferences against Mr Valletta's evidence and against the respondent, by having regard to the attacks made on the appellant's behalf of Mr Valletta's credibility concerning (a) the failure and refusal by Mr Valletta to comply with both his work duties as an employee and the first respondent's established procedures to be followed after reports of injury on the worksite were made, by properly recording and dealing with the appellant's report of injury.

1. Sub-ground 12(b) was abandoned at the hearing, in a passage which also includes the entirety of what was said in support of ground 12(a): "Ground 12, can I basically stick that on my written submissions, but basically what we're saying - your Honours, I think I'm balanced - your Honour, I withdraw ground 12(b). That's the one about failure to produce important parts of their documents. The primary judge thought they may have been misplaced. But as for the - what we do say is this: that there's ample evidence from what Mr Valletta admitted, that he dishonestly failed to comply with the procedures which are laid down very strictly by the first respondent as to what you must do after an injury, accident, near miss, et cetera. So that, your Honours, we've set out a fair bit of that, as well now that in the argument under ground 12 but we've expanded upon that in our reply submissions, your Honours."
2. That sits awkwardly with the entirety of the written submissions in chief, which was: "Mr Valletta was closely cross-examined in detail on these failures and refusals (Black 307T-320N, 352W-369V), which will be dealt with by appellant's counsel in oral argument."
3. The entirety of Mr Zaya's written submissions in reply, responding to a complaint that no submissions had been provided and "we do not know the factual or legal basis for this Ground and how the appellant puts his argument" but also pointing in part to the fact that the accident occurred on the Wednesday before Good Friday, which was some explanation for the non-availability of documents over the following days, was: "The evidence fell short of establishing that the site was closed between 5 and 11 April 2012. If this were the case, the first respondent must have been able to establish this from its own records and enquiries, but did not attempt to do so."
4. The upshot is that the written submissions were deficient. Mr Valletta's "dishonesty" required elaboration if the submission was to be maintained. There was no substantive development of the errors imputed to the primary judge save that it was said that submissions would be made orally. No oral submissions were made.
5. This ground is not made out. It must be said that the way this ground has been advanced does not satisfy the expectations this Court has of practitioners.

Ground 13: The primary Judge erred when deciding whether to accept the evidence of the appellant and Mr Abunucerah where it conflicted on relevant liability issues with that of Mr Valletta, in failing to bring fully into consideration his other findings which he made rejecting the credibility of versions of events given by Mr Valletta.

1. This ground was advanced orally as follows: "Basically, what we're saying is that because the other findings he made not accepting Mr Valletta and accepting the evidence of the plaintiff and Mr Abunucerah, that involved a loss of credibility by Mr Valletta and the primary judge should have taken that into account and in effect considered Mr Valletta's erroneous evidence as undermining his credibility, but we add that on his own admission, when he's told about an injury that has just occurred, and he's told that by Mr Abunucerah, who is a senior figure with the second respondent, he refused to [write] the information down because of the fact it may have repercussions for him. That is, big problems for him with his employers. And your Honour, I won't take your Honours chapter and verse through those submissions. But your Honours, that he accepted that it causes big problems for him if it's found that his paperwork isn't properly lined up."
2. In substance, it will be seen that this ground attacks the primary judge's nuanced findings as to the testimonial evidence of the three main witnesses. It will be recalled that except in one respect, his Honour did not rely on the uncorroborated evidence of Mr Valletta. This ground points to deficiencies in Mr Valletta's evidence and wishes to use that to support the recollections of Messrs Zaya and Abunucerah. It is sufficient to say that the ground provides no basis for appellate intervention in relation to the nuanced findings of fact made by the primary judge. The primary judge was not required to go further than he went, and deploy the rejection of Mr Valletta's evidence to strengthen Mr Zaya's case. It may be doubted that such reasoning process was available, but it is certain that there is no appellable error in not taking that further step.

Ground 14: The primary Judge erred in placing undue reliance in the circumstances upon his stated approach of attempting 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 appear to conflict with the unaided recall of the lay witnesses" (at Red [66]), in that:

a) "objectively determinable facts" provided no such relevant assistance which would so conflict with the unaided recall of lay witnesses;

b) "contemporaneous documents (where available)" provided no such reliable support;

c) the primary Judge failed to consider adequately the unreliability of entries made in contemporaneous documents by Mr Valletta and the significance of certain contemporaneous documents being missing (as stated in appeal ground 12);

d) "the apparent logic of events" to which the primary Judge referred (at Red [66], [67], [88], [89], [90] and [92]) provided no such logical assistance or reliable support.

Ground 15: In particular, the primary Judge erred on the facts by stating the following reasoning:

a) any direction to PNT workers to strip staircase 3 would have emanated from the employer through Mr Abunucerah and the appellant (at Red [89];

b) the appellant would have been aware that work had ceased before completion of stripping before he entered the staircase and fell (at Red [89];

c) on the appellant's "account"', "his accident happened about 24 hours later" (at Red [89]);

d) logically, riser shutters should be removed before lateral framework (at Red [90]);

e) no logical reason for leaving two riser shutters in place was ever articulated (at Red [90]);

f) if the PNT workers were approaching their task methodically, the unfinished work would not have been close to midpoint (at Red [92]).

1. Extraordinarily, senior counsel for Mr Zaya made complaint of the reasoning at [66] as follows: "When the primary Judge at Red [66] listed 'the apparent logic of events', this expression came from EA's counsel in his submissions. But adopting this florid phrase did not lead to valid application of 'logical' reasoning to any of the critical findings made by the primary Judge".
2. Fox v Percy was referred to in the first respondent's written submissions. In response, Mr Gross accepted that "I know those passages do come from the High Court in Fox v Percy, but there's no indication that those fine phrases are justified in any application of that reasoning against the plaintiff in the present case."
3. These grounds amount to a challenge to the orthodox process of finding facts. There was no error in relying on what was objectively determined and assessing the testimonial evidence in light of the contemporaneous documents and the apparent logic of events. That is how courts resolve disputed questions of fact every day.

Ground 16: The primary Judge erred on the facts in placing excessive reliance on:

a) the written procedures of the first respondent as to the timetabling of work, including the work of stripping formwork;

b) the "absence of any contemporaneous record supporting the detail of the plaintiff's case."

1. No submissions were advanced at all in respect of this ground. It is unclear what the "excessive reliance" is of which complaint is made. There was obviously no error in placing reliance on the contemporaneous documents, and in particular on the fact that the absence of reference to formwork remaining on two steps told against acceptance of Mr Zaya's claim.

The two new grounds 17 and 18

1. Leave was granted at the hearing to file a fifth amended notice of appeal, which contains an additional 2 grounds. These had not been developed in written submissions, as the respondents observed in opposition. They were not developed orally. The most charitable view of what occurred is that the additional grounds made clear two additional findings of fact which were challenged by existing grounds of appeal. Even taking that approach, there is no occasion to lengthen this judgment with reproducing those grounds which were not otherwise developed in writing or in oral submissions.

Orders

1. It is unnecessary to deal with the notice of contention. The cross-appeal does not arise, and should be dismissed. The appeal must be dismissed, with costs.

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