New South Wales Supreme Court CITATION : Saab v Lecan Constructions Pty Limited (In Liquidation) [2006] NSWSC 17 HEARING DATE(S) : 5/7/05, 6/7/05, 7/7/05, 8/7/05 JUDGMENT DATE : 3 February 2006 JUDGMENT OF : Bell J at 1 DECISION : 1. Verdict and judgment for the defendant; 2. Verdict and judgment for the cross-defendant on the cross-claim; 3. The plaintiff is to pay the defendant's costs; 4. The cross-claimant is to pay the cross-defendant's costs. Civil Liability Act 2002 (NSW) LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Peter Saab (Plaintiff) PARTIES : Lecan Constructions Pty Limited (In Liquidation) (Defendant) City Formwork Constructions Pty Limited (In Liquidation) (Cross-Defendant) FILE NUMBER(S) : SC 20093/04 P. R. Hennessy SC / E G Romaniuk (Plaintiff) COUNSEL : S.E. Torrington (Defendant) L. King SC (Cross-Defendant) Keddies Solicitors (Plaintiff) SOLICITORS : Johnstone Robinson Legal (Defendant) Blake Dawson Waldron (Cross-Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BELL J Friday 3 February 2006 20093/04 Peter Saab v Lecan Constructions Pty Limited (In Liquidation) (ABN 66 003 919 257) JUDGMENT Introduction 1 BELL J: This is a claim for damages for personal injuries arising out of an incident that is said to have occurred on 8 November 2001 at a construction site located at Lot 98 Saunders Street, Pyrmont (the site). The plaintiff was employed by City Formwork Constructions Pty Limited (in liquidation) (City Formwork), a company of which he was the sole director. City Formwork was providing formwork construction services at the site. The proceedings are brought against, Lecan Constructions Pty Limited (in liquidation) (Lecan), which is said to have been the building contractor responsible for the care, control and management of the site. 2 Causes of action are pleaded in negligence and contract. The proceedings were commenced on 25 March 2004 and are subject to the provisions of the Civil Liability Act 2002 (NSW). 3 The plaintiff pleads that he was descending a plywood access ramp (the access ramp) at the site and that he slipped when a cleat (described as a plastic fillet) attached to the access ramp broke. He claims to have fallen backwards thereby sustaining injury to his lower back including a left centro-lateral disc prolapse at L5-S1. He pleads that Lecan was subject to a duty to take reasonable care for his safety and to provide a safe place for him to work, including a safe system of work and safe plant and equipment. In the alternative, the plaintiff pleads that it was an implied term of the contract between City Formwork and Lecan that Lecan would exercise all reasonable care for the safety of persons associated with and employed by City Formwork and that Lecan was in breach of the implied term in the respects that he particularises as negligent. 4 Lecan brings a cross-claim against City Formwork pleading that City Formwork owed the plaintiff, its employee, a non-delegable duty and that his injuries were occasioned by its negligent breach. Lecan claims contribution and/or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 towards any verdict obtained against it. 5 By its defence, Lecan put in issue (i) that it had the care, control and management of the site; (ii) the existence of the access ramp; and (iii) the happening of the fall. It pleaded that any damages awarded against it should be reduced taking into account City Formwork's liability to the plaintiff. 6 On 27 November 2001 amendments to the Workers Compensation Act 1987 (NSW) (WCA) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (together, the Workers Compensation Acts) which effected a number of alterations to the entitlement of an employee to claim damages from his employer for personal injuries came into operation. The plaintiff in his amended reply raised the absence of any certification that he has sustained a 15 percent whole person impairment (WPI) for the purposes of the provisions of the Workers Compensation Acts and, hence, of his entitlement to recover damages from City Formwork. It is his case that any damages recoverable by him against Lecan are not susceptible of reduction by reference to City Formwork's liability to him. 7 Mr Hennessey SC appeared with Mr Romanuik on the plaintiff's behalf. Mr Torrington appeared on behalf of Lecan. Mr King SC appeared on behalf of the cross-defendant, City Formwork. 8 The construction at the site was a multi-unit development to be known as "The Clifton" comprising seven storeys, together with a roof terrace and penthouse units on the eighth level. Below ground there were two basement floors. Exhibit A, which comprises a number of site plans, describes the lowest basement floor as Basement Level 2 and that above it as Basement Level 1. The above ground floors are described as Level 1 (Ground Floor) to Level 8 (roof terrace and apartments). In oral evidence, Basement Level 2 was referred to as "the first floor" and Basement Level 1 was referred to as "the second floor". I will refer to the basement levels as the first and second floors consistently with the way they were referred to in oral evidence. Duty of care 9 The plaintiff gave evidence that City Formwork had a contract with Lecan for the provision of formwork, steel fixing and concreting for the Clifton development and that Lecan was in charge of the site. In these two respects his evidence was not challenged. Two days prior to the date of the plaintiff's alleged accident Lecan exercised powers consistent with management of the site when it locked out City Formwork employees and sub-contractors over a dispute concerning the payment of money. 10 Barry Tozer, a consulting construction engineer, expressed the opinion in his report that Lecan, as the company in charge of the construction work bore responsibility for the provision of safe access for all persons working at the site and that this responsibility included safe and appropriate access scaffolding to the basement slab (Exhibit H, p 3). Mr Tozer's evidence was not challenged. 11 I am satisfied that on 8 November 2001 Lecan was in charge of the construction work at the site. I am satisfied that Lecan owed a duty to the plaintiff to take reasonable care for his safety including by the provision of safe access to the second floor on which he and others were working. 12 Mr Tozer considered the access ramp that the plaintiff described to have been defective because of its steep slope and because of the inadequacy of the plastic fillets. Mr Tozer assumed the drop from the platform to the second floor slab to be 1.5 metres. The estimated slope of the access ramp from the horizontal on this assumption would have been about 56. The design and construction of access platforms as specified in the Australian Standard for Scaffolding, AS1576 (the Standard) is that the gradient not exceed 20. Plastic fillets or cleats are required to be 25mm thick and 50mm wide. They are to be spaced at intervals of 450mm and securely fixed to the upper surface of the platform by nails, screws or some other effective attachment mechanism. The plastic fillets described by the plaintiff were smaller than is required by the Standard and were at intervals that exceeded the Standard. 13 In evidence that plaintiff put the drop at less than 1.5 metres and as being of the order of 1.2 - 1.3 metres. A plywood board 1.8 metres long bridging a gap of this distance would still be at a gradient in excess of 20. I approach the matter on the basis that a plywood ramp of the description of that given by the plaintiff in his evidence would not have constituted a safe means of access from the platform of the scaffold to the second floor slab. 14 At issue is whether the plaintiff has established the existence of the access ramp and that he sustained injury by falling backwards as the result of a plastic fillet on the access ramp giving way. The plaintiff's evidence 15 The plaintiff is a thirty seven year old married man with five children. He left high school at around the age of sixteen years and started work as a form worker. He was employed in this trade between 1983 and 1991. After this he had been self-employed as a form worker, running what he described as his own company, City Formwork. He said that he enjoyed his work and that he had no health problems prior to the accident. 16 By 8 November 2001 the works at the site had progressed to the point that the concrete slab forming the second floor had been poured. The plaintiff and other City Formwork employees and sub-contractors were working on the second floor where the steel fixing and concrete pouring for the columns was underway. 17 The plaintiff said that there was a gap between the platform of the scaffold and the second floor slab. As I have noted, in evidence he estimated the gap to have been 1.2, 1.3 metres (T 12.47). On the first morning on which he sought access to the second floor he said that Lecan's foreman, David Hermann, told him to jump down to the slab and that by morning tea time a means of access would be provided. He and the other formworkers did as instructed. The plaintiff was working at the northern end of the building and did not see the access ramp being installed, but it was there by the time of the morning tea break. The plaintiff described the ramp as being a sheet of plywood: 1.8 metres long x 1.2 metres wide. Four plastic fillets were fixed to its upper surface at apparently regular intervals. He described it as being too steep (T 18.58). He said that it had been in use for four to five weeks before his accident. 18 The plaintiff said that the scaffolding did not extend around the whole of the perimeter of the building. He said that he had raised concerns about the adequacy of the access ramp on a number of occasions with Mr Hermann and that he had been advised that arrangements had been made for the scaffolders to return to the site to rectify the drop between the platform and the second floor slab and to erect scaffolding around the whole of the perimeter. As time went by and the problem of access to the second floor slab was not rectified the plaintiff said that he had telephoned the Sydney branch of WorkCover and spoken to a lady and that he had "reported certain matters to her" (T 17.29). I am satisfied that the plaintiff made telephone calls to WorkCover at a time when City Formwork was working at the site and prior to 8 November 2001. The evidence does not establish the reason for making the telephone calls. 19 The plaintiff gave the following account of his accident. On 8 November 2001 he had been doing some paperwork in a shed at the site. At about 2:30 pm he decided he would check the work being done by his men on the second floor. He walked along the platform and put his foot on the first plastic fillet of the access ramp, which broke causing him to fall backwards. He hit his back on the corner of the formwork and the scaffold. He screamed out in pain. He was numb for about ten minutes or so. His two brothers, Bobby and Jimmy, together with a security guard, named Osman, came to his assistance. Lecan's junior foreman, David Carmody, arrived at the scene with some ice, which he applied to the plaintiff's back saying, "you have to go and see a doctor straight away". His brothers helped him up the ramp and Bobby drove him to Dr Jassal's rooms in Lakemba. 20 The plaintiff said that he suffered a lot of pain in the lower back immediately after the fall and that a few weeks later he started getting pain in his left leg. He said that he had not returned to work after the accident. He gave this evidence in chief: A. I tried, like I tried, I tried to go back on my job site, which I couldn't. I tried to like check my boys out, if they're still working this and that. I couldn't do it, because everything was either climbing up or bending down. Q. And was that in 2002? A. I can't remember the date. Q. Some few months after the accident? A. Yes. Q. Is that right? A. Yes. A few months. Q. And so apart from those attempts you have not worked since the time of the accident? A. No. Q. Is that so? A. That's right. Q. Now in relation to your company, at the time of your accident you had this site underway? A. (Witness nodded). Q. Did you have any other jobs, either in progress or undertaken? A. Yes, we had other jobs, and they were closing off like, finishing them off like, to a stage where they were nearly completed. Q. Yes? A. Yes. Q. What happened, first of all, in relation to this job? For how much longer did your company continue to do the work on this job? A. After my injury? Q. Yes? A. I think about a month. Somewhere around there. Q. And then what happened? A. I had – the company just went down. I couldn't be there and no one could supervise after I left. They can't do it the way I was doing it. Q. And in relation to the other job sites? A. They were just finishing it off, like it was nearly finishing everything off Q. So did the company take on any other jobs after your injury? A. No. Q. And it, in time, folded? A. That's right (T 22-23). 21 The plaintiff said that he experienced back pain every day. The back pain was worse than the leg pain, which was experienced randomly (T 24). At the date of giving evidence he was experiencing leg pain around two or three times a day. The plaintiff said of the back pain that there were good days and bad days. He maintained that he was unable to lift items or to bend because of it. The plaintiff's credit 22 Lecan submitted that I would not act upon the plaintiff's evidence because he presented as an unreliable witness who on occasions had given answers that were deliberately untruthful. The challenge was directed to the plaintiff's evidence on two related topics: (i) the extent of his physical and psychological symptoms occasioned by his low lumbar back condition; and (ii) that he had not worked since the date of the accident. In dealing with the challenge to the plaintiff's credit in these respects it is necessary to refer to evidence concerning the financial performance of City Formwork in the period after November 2001 and to his association with a company called TSP Formwork Pty Ltd (TSP). This, in turn, requires consideration of the plaintiff's evidence about his relationship with his wife, Sousanna Saab, who is the sole director of TSP. 23 The challenge to the plaintiff's credit was a central issue in the way the trial was conducted. I propose to deal with the evidence touching on it before turning to the other evidence in the plaintiff's case. The evidence concerning City Formwork and TSP 24 City Formwork's principal place of business was recorded as 68 Knox Street, Belmore. This is the plaintiff's matrimonial home. City Formwork retained Elite Taxation Services Pty Ltd as its tax agent. City Formwork was wound up pursuant to a notice of special resolution under s 446A of the Corporations Act, which was passed at a meeting on 25 August 2003. 25 TSP was registered on 10 July 2003. This was some seven weeks prior to the winding up of City Formwork. TSP's principal place of business was recorded as 68 Knox Street, Belmore. It retained Elite Taxation Services as its tax agent. The business of TSP was the provision of formwork services for building construction projects. The plaintiff's nephew and brothers worked for TSP. The plaintiff's brothers (and it may also be that his nephew) had previously worked for City Formwork. TSP's sole director was Sousanna Saab. 26 In the course of cross-examination the plaintiff said that he had no association with TSP. The business of TSP was operated by his wife from whom he had effectively severed connection around two and a half years prior to the date of giving evidence. This would put the date of their estrangement at around early 2003, prior to the registration of TSP. 27 In evidence in chief the plaintiff had given his address as 68 Knox Street, Belmore. He gave no account of being separated from his wife. He said that their relationship had deteriorated since his accident: there had been arguments brought about by his wife's frustration at his inability to play games with the children and participate in their activities as he had previously done. 28 In cross-examination the plaintiff volunteered that he had a new partner and initially he said that he was living with his wife sometimes and living with his new partner sometimes (T 36). This evidence was given before his attention was directed to the circumstances surrounding the registration of TSP. 29 The plaintiff was challenged along the lines that he was still living with his wife and that TSP was effectively his business. He denied both propositions. 30 The plaintiff was seen at the request of the defendant's solicitors by Dr Lewin, a psychiatrist, on 27 July 2004. Dr Lewin took a detailed history of the plaintiff's family life, which appears to have not included that there had been any significant deterioration in the marriage following the accident. Dr Lewin reported that the plaintiff described his marriage as a strongly positive experience and "he feels that the couple have been happy together". 31 Dr Zepinic, a clinical psychologist, saw the plaintiff at the request of the plaintiff's solicitors on 12 February 2003 and 20 May 2005. There is no reference in the lengthy history recorded in each of Dr Zepinic's reports to the circumstance that the plaintiff was no longer living with his wife or that sometime around 2003 (or at anytime) that he had formed a relationship with a new partner. 32 The plaintiff was seen at the request of his solicitors by Judith Davidson, an occupational therapist, in November 2004. She appears to have obtained a history that the plaintiff was residing in the matrimonial home, but that he was sleeping in a separate room from his wife, from whom he had become estranged. The marital relationship was said to have fallen apart soon after the work related injury. Ms Davidson understood that the plaintiff had a girlfriend. She had accompanied him to the interview. 33 Videotape recordings of the plaintiff made on a number of occasions between 22 January and 29 June 2005 show him coming and going from the matrimonial home at 68 Knox Street. 34 I did not accept the plaintiff's account that he had severed contact with his wife around two and a half years prior to the date of his evidence. The inconsistent histories, the contradictory accounts of his marriage given in evidence and the quality of his evidence at the point in the cross-examination when he gave this account made his evidence on this topic unsatisfactory. I accept that the marriage has deteriorated and that the plaintiff has established a relationship with another woman, however this does not lead me to conclude that he has no on-going association with his wife. 35 On 22 January 2005 the plaintiff drove from 68 Knox Street to a warehouse at 4 Clements Avenue, Bankstown (the Clements Avenue warehouse). He left the Clements Avenue warehouse and drove a truck containing a load of formwork to a building site. On arrival at the building site he alighted from the truck and proceeded to remove the formwork by means of a crane, which he operated by remote control. He distributed envelopes to some of the workers at the site on this day. These activities were recorded on videotape. 36 In cross-examination the plaintiff said that he was the registered proprietor of the Clements Avenue warehouse and that it had been leased to TSP. He said that TSP was his estranged wife's business and that he had no involvement in it. TSP was providing formwork services at the building site and two of his brothers and his nephew were working for TSP. He denied that the envelopes that he distributed to workers at the site were pay envelopes. He said that they contained invitations to his forthcoming birthday party. He denied that he had been working for TSP on this occasion. His evidence in these respects was lacking in credibility and I did not accept it. The inference that I draw from viewing the videotape is that the envelopes handed out by the plaintiff at the building site on 22 January contained cash payments. 37 Exhibit 6 is a further videotape that was recorded over five days in June 2005 and which shows the plaintiff at the Clements Avenue warehouse on other occasions. On one such occasion he was recorded speaking with a man whom he described as an ex-supplier. The likelihood is that this person was a current supplier to TSP. On another occasion the plaintiff drove a four wheel drive vehicle with a trailer attached to it to a building site. His account of the reasons for taking the trailer from the warehouse to the building site was unconvincing. The plaintiff was present at the same building site a matter of days before he gave evidence. On this occasion he was recorded on videotape walking down a flight of scaffolding stairs holding a mobile phone. He said that he visited the building site to see his nephew or his brother and that he had climbed the stairs in order to give them an invitation to a B B Q to be held at his home. He was not able to explain why he had not waited until lunchtime to deliver the invitations, saving himself the need to climb the scaffolding stairs. The significance of this is that in evidence in chief the plaintiff asserted that he was unable to return to work at construction sites because his back injury prevented him climbing up and down stairs. He claimed to have made one attempt to return to a construction site and to have climbed scaffolding stairs at it and that this had resulted in him needing bed rest for the following two or three days. City Formwork's finances 38 The plaintiff's attention was directed to the evidence he had given concerning the fortunes of City Formwork after his accident: Q. The company City Formwork, after this accident it had … the jobs wound down, is that what you say? A. Yes, because I wasn't there. Q. When you say the jobs wound down, is that because the work stopped? A. No, work didn't stop, because I wasn't there to look after it, give instructions to my boys, read the plans; because there is plans you have to read, you have to be qualified to read plans, not anyone can just read a plan and do a multi-storey building. Q. What happened with City Formwork? A. Just ran down. Q. I am trying to understand what you mean by that; did you loose jobs? A. Yes, I lost jobs after that. Q. Did the company make any money? A. Not after my injury, no. Q. Who ran the company? A. Before the injury, I did. Q. Who ran it after the injury? A. No one. Sam was there after me for about a month or so, he couldn't do what I was doing. Q. So that a month or so after the injury the company couldn't do the work properly? A. That's right. Q. Did the company earn no money? A. Earn any money? Q. Yes. A. There were bits and pieces, like job that we are finishing off, there was money owing to us, but that was called retention money; unless you clean the job out that's when they pay you the full money. Q. Are you able to estimate how much of that? A. I can't remember. Q. Five thousand? A. More. Q. Ten, twenty? A. Could be more. Q. Give us your best estimate? A. I don't know (T 50-51). 39 City Formwork improved its performance in the financial year ending 30 June 2002 over the previous two years: annual gross business income figures for the year ended 30 June 2000, 2001 and 2002 are respectively $500,974; $228,195 and $658,325. The plaintiff was cross-examined about the reason for the improvement in the company's performance given that more than seven months of the financial year ended 30 June 2002 fell after his accident. His evidence on this topic was vague and unsatisfactory. He said that the gross business income for the financial year ended 30 June 2002 included retention monies from contracts performed prior to the date of his accident. Although the plaintiff was responsible for negotiating contracts on City Formwork's behalf, he was not able to give an account of the provision made in any contract for the retention of funds. When pressed the plaintiff responded that inquiries should be directed to his accountant. He claimed to have little knowledge of the receipt of funds by City Formwork. He said that Samir Bayer, an engineer employed by City Formwork, collected funds due to it. I am satisfied that Samir Bayer was engaged as a consultant engineer by City Formwork for a period of weeks up to 6 November 2001. I do not accept that Mr Bayer was responsible for the receipt of funds owing to City Formwork. 40 Ultimately, the plaintiff acknowledged that he had been made aware of City Formwork's financial position at quarterly meetings held with his accountant. As the cross-examination continued the plaintiff did not assert as a fact that City Formwork's relatively high gross annual business income for the year ended 30 June 2002 was as the result of the receipt of retention monies, but merely that he knew that retention money had been owing to the company. He retreated somewhat from the position that he had been responsible for negotiating City Formwork's contracts, saying that Samir Bayer had been responsible for these as well. I do not find that Mr Bayer had any role negotiating City Formwork's contracts. I did not accept the plaintiff's asserted lack of knowledge of City Formwork's contractual provisions and financial position. 41 A report prepared by Furzer Crestani Services, a firm of accountants (Exhibit 4), comments on the City Formwork depreciation schedule for the financial year ended 30 June 2002. It appears from the analysis of this document that City Formwork owned and/or leased the following vehicles: Two trucks and one ute acquired on or prior to 1 July 2000; A Nissan Pajero acquired on 1 July 2000 for $27,487 and disposed on 29 April 2002 for $23,620; An HSV Club Sport acquitted on 29 November 2000 for $50,792; And that during the financial year ended 30 June 2002 City Formwork: Leased an Isuzu truck from 9 July 2001; Acquired a Nissan forklift truck on 14 February 2002 for $10,500; and Acquired a Land Rover on 29 April 2002 for $43,899. 42 In the year ending 30 June 2002 City Formwork recorded rental expenses in an amount of $16,667. Previous returns showed rental expenses as $717 and nil. 43 Schedule A to the Furzer Crestani report is a summary of the plaintiff's personal income tax returns. His total income for the year ended 30 June 2002 is considerably in excess of his total income in the preceding four years. 44 The plaintiff was the subject of surveillance for varying periods of time and at varying times of the day on 23 days between 4 August 2004 and 29 June 2005. The times are summarised in a schedule, Exhibit N. I infer that on the great majority of these occasions the plaintiff was not observed carrying out activities apparently on behalf of TSP. He said that the only occasions he attended building sites in 2005 were those occasions on which he had been recorded on videotape by the investigator. I did not accept that to be so. I considered that there was merit to Mr Torrington's submission that the videotape made on 22 January 2005, which shows the plaintiff arriving at the building site and commencing to use a crane (being a crane other than the one on the truck driven by the plaintiff) without obtaining permission from any person at the site, is explicable on the basis that he had previously attended at that site and was known by those responsible for it. 45 I am satisfied that the plaintiff's evidence of his inability to work following the accident and his lack of connection with the business of TSP is to be rejected. There are a number of reasons for coming to this conclusion. These include the evidence of David Carmody which I refer to at paragraph 95 below, the financial performance of City Formwork in the year ended 30 June 2002, the acquisition of vehicles and equipment by City Formwork after 8 November 2001, the coincidence in the timing of the registration of TSP and the winding up of City Formwork; the lease of the Clements Avenue premises to TSP; and the evidence that on a number of occasions in 2005 the plaintiff was in attendance at the Clements Avenue warehouse and apparently doing work on behalf of TSP. In addition to these considerations is the circumstance that the plaintiff has been involved in the formwork business for many years and that his wife has no experience in this field. I also take into account the unlikelihood that Sousanna Saab started up a business in mid 2003 independently of her husband. It would seem that Mrs Saab was diagnosed with a cerebral tumour in September 2001 for which she later underwent surgery. It appears that the surgery was successful, however, I note the report of the history given by the plaintiff to Ms Davidson: Since his injury, his wife had a brain tumour removed in Royal Prince Alfred Hospital and has recovered well in terms of her physical strength. However she gets a lot of migraines and has good days and bad days. His wife was not employed and has not been employed since the injury. As a result of the migraines she is unlikely to be able to work in the future. 46 I consider the likelihood to be that in the period prior to the winding up of City Formwork the plaintiff was the moving force behind the registration of TSP and that, although he is not a director of TSP, he is the person in effective control of it. The medical evidence 47 The challenge to the plaintiff's credit was, in part, based on what was submitted to be his exaggerated report of symptoms to the doctors and other health professionals whose reports are in evidence and, in part, on what was said to be the inconsistent account of the circumstances of the accident given by him to these persons. 48 The plaintiff was seen by Dr Jassal, a general practitioner, on 8 November 2002. Dr Jassal recorded a history that the plaintiff "fell backwards while walking on a ramp while at work". The plaintiff complained of pain in the lower back and neck. Dr Jassal reported that the plaintiff's neck was painful on moving and his muscles were restrained. There was no neurological deficit. X-ray of the lumbar spine was normal. Dr Jassal referred the plaintiff for a CT scan, which was carried out on 21 November 2003. This showed a prolapsed disc at L5-S1 left Centro-laterally displacing the nerve root. Dr Jassal commented on the further finding on the CT scan of marked developmental bony canal stenosis at L3/4. Dr Jassal referred the plaintiff to Dr Bentivoglio for assessment of his back and to Dr Gill for acupuncture. 49 Dr Bentivoglio saw the plaintiff on 16 January 2002. He obtained a history that the plaintiff "slipped on a ramp and fell injuring his back region". There was no history of previous back problems. Dr Bentivoglio noted that the plaintiff was continuing to experience back pain and that a few weeks prior to 16 January 2002 he had started to develop pain radiating down his left lower limb. Dr Bentivoglio commented on the results of the CT scan, noting both a degree of spinal canal stenosis at the L4-5 level of the lumbar spine and the significant left sided L5-S1 disc protrusion. In Dr Bentivoglio's opinion, the disc protrusion was the cause of the plaintiff's symptoms. Dr Bentivoglio arranged for a MRI scan of the lumbar spine. This showed evidence of some degree of disc desiccation at the L4-5 level. Dr Bentivoglio reviewed the plaintiff on 14 May 2002. The plaintiff was complaining of continuing back pain, and of pain radiating down his left lower leg. Dr Bentivoglio last reviewed the plaintiff on 19 February 2003. On this occasion the plaintiff reported continuing back pain and that the pain radiating down his lower left leg was now extending beyond the knee to the ankle. 50 In Dr Bentivoglio's opinion the plaintiff would have sustained disc damage at L4-5 and L5-S1 as a result of the injury described. 51 The plaintiff was seen at the request of his solicitors by Dr Vote, an orthopaedic surgeon, on 3 February 2003. Dr Vote recorded the following history: Mr Saab states that on 8/11/01 he was descending some scaffolding, when he lost his footing on a loose piece of ply and fell approximately 1.5 metres. He apparently sustained a direct injury to his back on the projecting corner of some scaffolding. After the fall he was able to walk quietly. He attended the First Aid station, complaining of back pain and was given ice and advised to go to hospital. The history that Dr Vote obtained included that the referred pain in the left lower leg did not commence until three or four months prior to February 2003. 52 Dr Vote commented on the results of the CT scan and the MRI, noting the definite evidence of a prolapse of the L5-S1 disc to the left. He observed there were also developmental abnormalities, which would appear to have been asymptomatic prior to the incident. Dr Vote considered the diagnosis to be of some damage to the L5-S1 disc. He commented that it was somewhat inconsistent that the plaintiff did not have leg pain for some nine months after the accident, although the CT scan taken shortly after it showed a significant L5-S1 left prolapse. This observation must be assessed against the evidence that the plaintiff had complained to his treating orthopaedic surgeon, Dr Bentivoglio, of referred pain in the left lower limb radiating down to the knee region on 16 January 2002. 53 Dr Vote considered the MRI scan taken three months after the accident did not indicate a major protrusion at L5-S1. However, overall, he considered it likely that the plaintiff had sustained some damage to the lumbosacral disc. He considered there to be a direct association between the plaintiff's symptoms and the incident described as occurring on 8 November 2001. 54 The plaintiff was also seen at the request of his solicitors by Dr Endrey-Walder whose report is dated 3 December 2003. Dr Endrey-Walder recorded the following history: On 8.11.2001 he was working in the above capacity at Pyrmont. "I was walking down the ramp and as I came to the end of the ramp, which was uncompleted, the builders had just thrown a sheet of plywood acting as a ramp with small pieces of plastic fillets, and as I put my leg (foot) on one of these fillets it broke in the middle and I slipped back (fell) and my back hit the side of the aluminium ramp and the plywood. 55 Dr Endrey-Walder reported the plaintiff's account of his symptoms including, "I can't lift anything because straight away it hurts me" and that average daily activities were, "I rest most of the time, I walk for half an hour around the block or something. Walking does help a little bit". In Dr Endrey-Walder's opinion, the plaintiff suffered an injury to his lower back in a heavy fall in November 2001. He went on to note that: There is little doubt that this gentlemen's injuries are superimposed on a congenitally narrow and small calibre spinal canal, but there is equally no doubt that Mr Saab had no difficulty coping with his daily laborious work in his business over the previous ten years before the accident in question. It is my opinion that he suffered a left-sided lumbo-sacral disc prolapse and injury to the L4-5 disc as well, the trauma related pathology resulting in sciatica which has now become permanent and extending as far as his ankle. 56 Dr Endrey-Walder considered the plaintiff not to be fit to work as a building site carpenter or form worker and that he would never again be fit for work of that nature. 57 The plaintiff was seen, at the request of his solicitors, by Dr Costa, a public health physician and occupational health consultant on 30 September 2003. Dr Costa obtained the following history: He said he was descending some scaffolding and going down the ramp and he fell backwards on his back. He said that the tray gave way and he landed on the edge of the scaffold and struck his back on the plywood. He fell about 1.5 metres. He attended at the First Aid and was advised to attend at the Bankstown Hospital. 58 Dr Costa obtained a history that the plaintiff had not been able to work since the date of injury and that it would be hard for him to return to light duties because his work involved going up and down at building sites and that he could not supervise work from the ground floor level. During the examination of the plaintiff Dr Costa reported that the plaintiff was in "obvious lumbar discomfort". In Dr Costa's opinion, the plaintiff's condition was consistent with, and reasonably attributable to, the history of injury at work. Dr Costa noted the plaintiff had been previously asymptomatic and that he had coped with full normal work duties. 59 On 2 March 2004 the plaintiff was seen at the request of his solicitors by Dr Guirgis, a consultant orthopaedic surgeon. Dr Guirgis recorded the following history: He gave me the history of being involved in an accident at work on 8-11-2001. In the course of his duties as a form worker, he was coming down the scaffolding which was not complete so the builder put a plywood sheet to cross the gap. This was at the height of 1.8 metres and supported it with a few plastic fillets. As he stepped from the scaffolding onto the first bit of the plywood supported by the fillets, the fillets yielded, broke and he fell down backwards hitting his back against the corner of the scaffolding. As a result he sustained an injury to the lower half of his back. 60 In Dr Guirgis' opinion, the plaintiff remained unfit to be involved in activities that would require stress to be applied to the spine. He was permanently unfit for his pre-injury duties in formwork or in any other similar duties in the building industry. 61 Judith Davidson, the consultant occupational therapist, assessed the plaintiff on 22 November 2004. She recorded the following history: Mr Saab was involved in a work related accident when he fell while descending some scaffolding. He thinks he was knocked out for about ten minutes. Ms Davidson reported that he plaintiff was unable to climb more than five steps, even with a rail; unable to reach below knee level; unable to lift any objects at floor level; unable to lift heavy objects above knee level; and, unable to go to the park or participate in the children's play activities. She noted that the plaintiff could dress himself on a good day (3-4 times per week), but that on a bad day his sixteen-year-old son would assist him in this respect. 62 The plaintiff was seen, at the request of the defendant's solicitors, by Dr Stephen, an orthopaedic surgeon. The results of the assessment are contained in Dr Stephen's report of 7 July 2004. Dr Stephen recorded the following background history: Mr Saab told me he was thirty-seven years old. He was not working. He described himself as relaxing at home. He had not worked since 8.11.01. He was at home with his wife and five children aged three to fifteen. His wife was ill but did the housework with the aid of the older girls. Apart from relaxing, Mr Saab told me he did not do much. He walked around the block occasionally. He had no outdoor interests or activities. … Mr Saab told me that on 8.11.01 he was at Pyrmont. He was on a construction site. He was walking down a plywood ramp. He said the plastic fillet on the ramp broke and he slipped and fell backwards, striking his back on the corner of aluminium and plywood scaffolding. He got up slowly. Some ice was applied. He then took himself to the Bankstown Medical Centre where he had x-rays and later physiotherapy, hydrotherapy and antiinflammatories. He also had acupuncture. … Mr Saab has not worked since the accident. He said that he had a rehabilitation program but could not get anywhere and his back as a result of this was no better. 63 Dr Stephen commented on the report of Dr Bentivoglio and noted the results of x-rays, the CT scan and the MRI scan. He concluded: Mr Saab has two-level low lumbar disc disease. He probably does have mechanical back pain in association with this. There was a small disc prolapse on the left side demonstrated on the CT scan and on the MRI scan. Dr Stephen went on to observe: He does not have any evidence of nerve root irritation or compression. It is quite likely that he never did and it may be, as commonly occurs, that the left sided lumbar-sacral disc protrusion was an incidental finding. There are several papers to show that in persons of about Mr Saab's age asymptomatic disc protrusions are common. Mr Saab's examination included a number of inconsistencies. There was voluntary restriction of movement, complaint of pain on vertical compression and whole body rotation, widespread rather exaggerated tenderness and there was paradoxical straight leg raising. This points to a significant non-physical element, whether assumed or otherwise, in the production of Mr Saab's symptoms. 64 In Dr Stephen's opinion, there was a causal connection between the significant fall described by the plaintiff and what he characterised as a minor continuing incapacity. Constitutional factors were said to probably contribute to the minor incapacity. The prognosis for the future was for continuing complaint of backache and Dr Stephen considered that much of the basis for this complaint to be non-physical. 65 The plaintiff was seen by Professor McLeod, a neurologist, at the request of the defendant on 1 September 2004. Professor McLeod obtained a history that on 8.11.01 the plaintiff was walking down a temporary plywood ramp when he slipped on a broken plastic tread on the ramp and fell on the flat of his back. He could not get up because of pain in his back and neck and his brother took him to his general practitioner, Dr Jassal, at Lakemba. 66 Professor McLeod diagnosed L5-S1 disc protrusion causing left sciatic pain and considered the findings on examination to be consistent with the history given. In Professor McLeod's opinion, the plaintiff would be unable to undertake heavy work. Professor McLeod noted the plaintiff reported no symptoms prior to the accident and expressed the opinion that the injury was the cause of the continuing incapacity. Professor McLeod noted the L4-5 canal stenosis, but observed this had been asymptomatic prior to the injury. 67 Dr Zepinic, a psychologist, saw the plaintiff at the request of his solicitors on 12 February 2003. He recorded the following history of the plaintiff's injury: Mr Saab told me that he suffered a workplace injury in November 2001. At the time he was framework contractor running own company City Formwork Constructors. He was in a process of scaffolding a platform making available place for further building stage. He put plywood and plastic fillets on last bin approximately two metres high. While coming down he slipped and fall on the piece of aluminium and plywood. 68 Dr Zepinic recorded that the plaintiff found that any physical activity was productive of more severe pain and that he had to work out limits in his daily activities: He had to be careful about how he moved, walk, bend, picking up, as any vigorous movements cause severe pain on his low back. 69 Dr Zepinic recorded that the plaintiff reported that he had been quite a sociable person prior to the accident, but that "he now does not like to go out because he fears having spasms of pain and becoming the object of people's attention and curiosity". In Dr Zepinic's opinion the plaintiff met the criteria for the diagnosis of adjustment disorder. 70 Dr Zepinic saw the plaintiff again on 20 May 2005. Dr Zepinic noted that since the accident the plaintiff had become inactive and socially withdrawn. In his report of 27 May 2005 Dr Zepinic recorded: He stated that rare going to any social event because of his fear that he will experience stiffness and spasm that would make him the object of people's attention and curiosity. He rather spends time watching TV and described his mood as "irritable, snappy and cranky". 71 Dr Lewin saw the plaintiff at the request of the defendant. He recorded the following history: Mr Saab recalls that he was on a job site at Saunders Street, Pyrmont. This was a large building site. Mr Saab descended several levels on aluminium scaffolding. He reports that he slipped down a wooden ramp. As he fell, he landed on the corner of the plywood sheet. Mr Saab fell onto his back. 72 Dr Lewin considered the plaintiff's clinical features to be consistent with a diagnosis of an adjustment disorder. Taking into account this history, Dr Lewin considered that the plaintiff's condition appeared to have arisen in the context of two important events in his life: his wife's life threatening illness and his workplace accident. He considered it likely that the plaintiff would experience anxiety or depressive symptoms in the aftermath of the wife's life threatening accident. He considered the workplace injury to have been a substantial contributing factor. 73 The videotape recorded on 22 January 2005 shows the plaintiff engaged in a number of physical activities. He opens the roller door of the Clements Avenue warehouse by pulling on a chain. On arrival at the building site he can be observed jumping down from the truck with apparent ease. In the course of removing the formwork from the truck he is seen taking hold of heavy gauge steel chains in an apparent effort to stop them swinging. He did this on more than one occasion. He was also recorded on that day detaching a sizeable fishing boat from the trailer, which was attached to his four-wheel drive vehicle. This involved him bending forwards and winding something that is likely to be the trailer's jockey wheel. Next he jumped up and down on the towbar and kicked at some object and then, again, bent down and appeared to wind the jockey wheel. This activity seemed to me to involve a reasonable degree of flexibility and strength. There is no indication of the plaintiff guarding his movements on 22 January while he was under observation. 74 The videotape made on days in June 2005 does not show the plaintiff engaged in activities as strenuous as the removal of the fishing boat from the trailer, but to my mind it lends further support to the contention that the plaintiff has exaggerated the extent of his symptoms. The circumstance that the plaintiff was not observed carrying out apparently strenuous activities on seventeen other occasions between 4 August 2004 and 29 June 2005, when he was the subject of surveillance, leaves open that the extent of the exaggeration of his symptoms may not be as great as contended for by Mr Torrington. It remains that the plaintiff presented as an unsatisfactory witness and that, on occasions, I considered his evidence to be deliberately untruthful. The other evidence concerning the accident and the access ramp 75 Bobby Saab was in Lebanon at the date of the trial. Jimmy Saab gave evidence in the plaintiff's case. He said that he had been working with his brother for about three weeks prior to the accident. He recalled that a plywood board had been used to get access to the second floor slab. He could not remember when the access ramp had been installed, but he thought it had been in place for more than a week. It was constructed of a plywood sheet and it had some kind of strips on it. At the time of the plaintiff's accident Jimmy Saab said that he was cleaning nails on the first floor. He heard a noise and saw workers rushing up and so he joined them. At the time he arrived at the scene the plaintiff was "on the floor". He was near the plywood sheet. David Carmody was putting ice on him. Jimmy Saab and Bobby Saab supported the plaintiff on both sides and slowly managed to take him up the stairs and put him in the car. 76 Jimmy Saab was asked if he noticed any damage to the access ramp: "I don't remember one hundred percent but I think one of the fillets was broken" (T 134.2-3). In cross-examination he said that the access ramp was 120mm x 180mm and approximately 20mm thick. He recalled that it had fillets attached to it and that on the day of the accident he had seen one of the fillets broken. The broken fillet was the bottom fillet: the first fillet from the bottom of the ramp for a person ascending it. He then qualified his evidence, saying that the broken fillet was the first or the second one. 77 I found Jimmy Saab to be an unsatisfactory witness. It is necessary to make allowance for the fact that some of his evidence was given through an interpreter. This makes any assessment of his demeanour more difficult. Nonetheless on occasions he seemed to me to be not making an effort to respond to the question asked of him and at times his answers were given in a truculent fashion. I should note that this was evident in evidence in chief as well as in cross-examination. 78 When Jimmy Saab was asked if he had seen his brother Paul at family functions in 2005 he responded, "we didn't have any" (T 136.44). He denied receiving in the preceding fortnight a written invitation to visit the plaintiff at his home. He was asked if he had worked at any building sites in the last few weeks on an occasion when his brother had turned up to say hello. At this juncture he corrected his earlier evidence, saying that he recalled receipt of an invitation to the plaintiff's home but that he had not attended the function because his wife was sick. He was not able to be precise about the date observing, "I've got a lot of things on my mind too" (T 137.47). He was tested about his earlier assertion that the Saab family did not have functions. He explained this answer by saying that he had not attended functions. He recalled that his brother had a birthday party in 2005 and that he had received an invitation to it. His evidence on this topic is at T 137-138. I do not propose to set it out in full. Suffice to say that I considered his evidence concerning the receipt of invitations from the plaintiff to be lacking in credibility and that, generally, I found him to be an unsatisfactory witness. 79 Apart from the plaintiff and Jimmy Saab there were two witnesses called in his case who gave evidence of an access ramp at the site around the time of the accident. 80 Raymond Hannah is a sub-contractor who in 2001 carried out concreting work for the plaintiff from time to time. He was engaged to pour concrete for the columns on the second floor at the site. He recalled a difficulty with access to the second floor; on the first day they had to jump down to the slab. During the course of that day he saw David Carmody install the access ramp. This was two or three weeks prior to the date on which he understood the plaintiff had his accident. 81 Mr Hannah described the access ramp as a plywood sheet with some strips on it. The strips were consistent with the plastic fillet; Exhibit D. Mr Hannah was not at the site regularly in the period after the access ramp was installed. He believed he worked at the site on about two or three days thereafter. Mr Hannah gave no account of the size of the gap between the platform and the second floor slab. He did not describe the angle of the access ramp. 82 Samir Bayer is a civil engineer. He was engaged on a contract basis to undertake construction management work for City Formwork at the site. He started on 2 October and he finished on 6 November 2001. This was the total period during which he worked with the plaintiff in 2001. He had not worked with the plaintiff since that time. To the extent that there was any inconsistency between the evidence of the plaintiff and the evidence of Mr Bayer, I preferred the evidence of Mr Bayer. 83 Mr Bayer said the level of the scaffold platforms was not adequate to the slab levels at the site. This appeared to be a reference to both the first and second floor slabs. He said there was an access ramp between the platform and the slabs (T 150.34). He described the access ramp as being made of plywood with fillets nailed to it. He had not noted whether there was any support under the plywood to give the ramp additional strength. Mr Bayer described the access ramp as being more than 1 metre, 1.2 metres. He observed that it was "very steep" (T 150.56). Mr Bayer said access had been obtained to the slab for more than one month by means of the access ramp. He was not able to recall how it was attached to the platform or the slab. He believed that it had been connected in some fashion and in this respect he observed that it had been used on a daily basis with more than twenty tradesmen or labourers crossing it (T 154). 84 Mr Bayer said that there had been safety concerns at the site. In this context he referred to an issue concerning the scaffolding on the south side of the building. Formworkers had been working on the next step up (above the basement level); they were working on the decking without any scaffolding on the side. In his view scaffolding should have been in place before this work was commenced. Mr Bayer raised this concern as a site safety issue. He did not raise the access ramp as a safety issue. He explained his reasons for not doing so in this way: I never raise this issue because everyone using it on daily basis (T 158.42-43). 85 Mr Bayer did not recall contacting WorkCover in relation to any safety matters at the site. The evidence suggests that Mr Bayer's recollection in this respect was faulty and that he did raise a matter of concern with WorkCover. 86 James Allison, a WorkCover inspector, gave evidence in the plaintiff's case. He was dependent on notes made by him at the time of inspections of the site conducted on 12 and 22 November 2001 and on the contents of a complaint report, Exhibit G. On 31 October 2001 a telephone complaint was made by a person named Samar (telephone 043 8676945) against Lecan in connection with the site. The person Samar is likely to be a reference to Samir Bayer. As at 31 October the telephone number given was for a service belonging to Mr Bayer. The complaint was recorded as follows: Construction of tenth storey building working on the ground floor at the moment. Problem of access to the site working side of the road no protection. Scaffold too narrow it should be 1.2 MTR. 87 In his report Mr Allison recorded that he had spoken with Mr Negro, a project manager with Lecan, by telephone on 6 November, advising him of issues raised in the complaint. He was informed that there had been an industrial dispute on the site. Arrangements were made for a site visit on 12 November. 88 Mr Allison said that on 12 November he inspected the site in company with a site foreman, James Roknic. He noted a problem with a main feed power cable, which was feeding through some trees on the site. He also noted an aluminium mobile scaffold, which did not have fall protection on one side. Mr Allison made an entry in his notebook, "ramp area level 1". This was the only reference to a ramp at the site. Mr Allison thought the reference to the ramp may be connected to his note to ask his supervisor about the need for a hoarding to protect pedestrians. He explained that there was a concern for the safety of pedestrians since materials were being lifted across a footpath by a crane. Mr Allison spoke to David Carmody, of the OHS Committee during the course of his inspection on 12 November. He recorded, "scaffold okay". Mr Allison went on to say that he actually noted the site access was good, amenities good and that the hoarding around the perimeter and the signage were good. An improvement notice was issued relating to the power cables. On 22 November Mr Allison carried out a further inspection of the site to ensure that the improvement notice had been complied with. 89 Mr Allison's attention was directed to his report dated 7 November 2001 in which he recorded the contents of his telephone discussion with Mr Negro. There he stated: I advised Mr Negro to assess the access to the site and take any necessary remedial action. Mr Allison could not recall if there was any connection between this reference and the reference to the ramp in the notes made of the inspection on 12 November. 90 The probability is that Mr Bayer telephoned WorkCover to lodge a complaint concerning the absence of scaffolding on the south side of the site where work was being done on the decking above the basement level. This is consistent with the complaint report form and accords with Mr Bayer's evidence of the issue that had caused him concern. The reference to the advice to Mr Negro to assess the access to the site and to take necessary remedial action is likely to have been a reference to this complaint. 91 Mr Allison recalled a ramp at the site, but not an access ramp of the description of that given by the plaintiff. If there had been a ramp of this description at the site on 12 November he would have noted it and probably said something about it. There was, of course, time for some person to have removed the ramp between 8 and 12 November. 92 David Carmody gave evidence in Lecan's case. Mr Carmody now lives in New Zealand where he is undertaking fulltime studies in physical education. He was employed by Lecan as the junior foreman at the site in 2001. He started his apprenticeship in the building industry in 1994. Prior to commencing with Lecan around October 2001 Mr Carmody had worked as junior foreman under the supervision of David Hermann on another development. 93 David Carmody was an impressive witness and I accepted him as truthful and accurate. He was independent; he has no current association with Lecan or persons associated with it and does not appear to see his future in the construction industry. If anything, Mr Carmody had reasons for entertaining some resentment of his treatment at Lecan. He was laid off not long after these events. He was present during the industrial dispute at the site on 6 November and considered that Lecan had provided inadequate support to him and Mr Hermann in dealing with a volatile situation. While it was Mr Carmody's evidence that persons associated with the plaintiff's firm had engaged in ugly behaviour on 6 November, he did not present as hostile to the plaintiff. 94 Mr Carmody did not recall building a plywood ramp at the site. He had no recall of seeing any plywood ramps at the site. He remembered that the plaintiff had been working at the site. The only incident that he recalled involving the plaintiff at the site was the lockout on 6 November. He had no recall of administering first aid to the plaintiff in November 2001. He was not aware of any claim that the plaintiff had suffered an injury at the site. He was first made aware of this when he was spoken to by Lecan's solicitor. 95 Mr Carmody was laid off by Lecan about two weeks after 6 November. Sometime after this he was working with David Hermann at another site in the eastern suburbs. The plaintiff was working at this site and Mr Carmody did not observe anything apparently wrong with him. Mr Carmody was a bit surprised when he turned up at this site and saw the plaintiff there. The plaintiff had no recall of seeing Mr Carmody after 8 November 2001. The probability is that he did see him in the circumstances that Mr Carmody described. 96 In cross-examination Mr Carmody was asked: Q. Do you remember them, in fact the stage of the work reaching or the work reaching that stage, they had to get off the scaffold onto the concrete slab of level 2? A. No, I don't. Q. You don't remember that? A. No, I don't. Q. You see, that was via a ramp, wasn't it? A. As I said, I don't recall. Q. So if I was to suggest to you that it was indeed via a plywood ramp, you would say, "I just don't remember one way or the other"? A. That's right. Q. If I was to suggest to you that in fact you were seen putting that ramp into position, you wouldn't disagree with that either? A. Well, I don't remember, yes (T 162.32-52). 97 Mr Carmody maintained in cross-examination that he had no memory of the plaintiff having an accident at the site. He did not remember the plaintiff being absent from the site after 8 November. The cross-examination continued: Q. You don't remember bringing some ice to him when he fell? A. No, I don't. Q. That may have happened, it is just in the turmoil of this site you don't remember it, is that right? A. Yes. Q. It must have … TORRINGTON: Might the witness be allowed to answer. I don't know that the answer was completed. HENNESSY: Q. Had you finished your answer? A. I believe that – my ipso memory, if someone is falling on a ramp and severely injuring themselves, I would remember, but a lot of this other stuff, in regards to the incident with the site officer, I remember that quite clearly. I believe if someone slipped and fell and for whatever reason they were hospitalised or had to go away from the site, I believe I would remember that. (T 163.25-45). 98 Mr Carmody said that he had not been the First Aid Officer on the site. Lecan had wanted him to undertake his First Aid course, but he had not done so at the time. Nonetheless, he volunteered that it was not in his nature, should a person suffer injury, to wait until the safety officer arrived. If he had been able to render assistance he would have done so regardless of his qualifications and position on the site. 99 Mr Carmody acknowledged that quite possibly it would have been part of his duties to build an access ramp at the site had one been required. It was suggested to him that assuming a drop to the slab of 1 to 1.2 metres he would have considered a 1.8 plywood board with fillets attached to the upper surface to be a reasonably safe means of bridging the gap. Mr Carmody responded in this way: I would be personally calling about the scaffold and fix the scaffold. If it stepped down that big I would normally build a platform and I would do what they call a hop-up, which is clipped onto the standards, and then the hop-up put in which creates like another step. How high did you say? Q. That is in the ideal world, you see, but what I am asking you about … TORRINGTON: I think the witness was seeking clarification. HENNESSY: Q. 1 to 1.2 metres, that is pretty high, that seems … WITNESS: A. I have absolutely no recollection of a ramp like that on that job, in fact with those descriptions I could almost say I believe that ramp did not exist on that job. I can't remember (T 167-168). 100 In Mr Hennessey's submission, the suggested inconsistencies in the description of the accident recorded in the various medical reports did not tell against an acceptance that the accident occurred in the way the plaintiff described in evidence. I consider that caution should be exercised in drawing a conclusion adverse to the plaintiff's case from the inconsistencies in the report of his history. I have already noted the inconsistency in the history obtained by Dr Vote concerning the symptoms of referred pain. I do not attach significance to the circumstance that Dr Vote recorded a history of the plaintiff loosing his footing on a loose piece of ply. 101 Of greater significance in assessing the plaintiff's claim is the contents of the Employees' Report of Injury (Exhibit E). This document was completed at the plaintiff's direction within five days of the accident, on 13 November 2001. The form makes provision for a description of the event giving rise to the injury under the heading "What happened"? The plaintiff supplied the following information: Walking up the ramp and slipped and fell on my back. 102 In an Incident Report Form submitted to WorkCover, which is dated 26 November 2001, the plaintiff provided a more detailed account of the circumstances of his accident that is consistent with his evidence: I was walking down the scaffolding then Lecan have put a ramp out of plywood with a few pieces of plastic fillet across when I was walking down the ramp the plastic fillet broke under my foot and gave way I fell backwards straight on my back on the corner of the scaffold and the plywood ramp. 103 It is difficult to reconcile these two accounts that were given within a fortnight of each other. 104 Mr Tozer recorded a description of the ramp given by the plaintiff during the course of an interview on 13 February 2003. On that occasion it appears the plaintiff gave an account that the gap between the scaffolding and the slab was 1.6 metres. In evidence the plaintiff did not maintain the gap to have been of that order. It remains that a plywood sheet measuring 1.8 m in length bridging a gap of 1 metre to 1.3 metres would necessarily have been on a relatively steep gradient to the horizontal. 105 Mr Hannah and the concreters in his employ used the access ramp as the means of getting access to the second floor. Mr Hannah made no reference to it as being a steep ramp. Mr Bayer did describe it as steep. Mr Bayer is a civil engineer. The ramp was in place when he started working at the site. Although he raised safety concerns relating to the adequacy of scaffolding to protect the workers on the deck, he does not appear to have been concerned about the safety of the access ramp. 106 While Mr Carmody conceded it was possible he had constructed a ramp in his capacity as the junior foreman on the site, when it became clear to him what it being suggested that he had built his answer was emphatic (paragraph 99 above). I considered that had Mr Carmody been required to construct a ramp of the description given by the plaintiff to bridge a gap of one or more metres he would have remembered it. I think it probable that Mr Carmody did not construct a ramp of that description. If Mr Hannah is correct in recollecting that David Carmody constructed an access ramp between the platform and the slab of the second floor then I incline to the view that the ramp was not as steep as an acceptance of the plaintiff's evidence would suggest. 107 The plaintiff and Jimmy Saab said that Mr Carmody attended at the scene of the plaintiff's accident and gave him an ice pack. I do not find that Mr Carmody was present at the scene of any accident involving the plaintiff. Mr Carmody remembered that he had seen the plaintiff working at the eastern suburbs building site sometime after the lock out at the Pyrmont site. It is likely that if Mr Carmody had administered first aid to the plaintiff (in circumstances in which it was apparent that the plaintiff required medical treatment) on an occasion shortly after the lock out and before he saw him at the eastern suburbs site he would have remembered it. 108 The plaintiff's case is dependent on an acceptance of his evidence. I am unable to accept him in the absence of some independent evidence. I do not consider Jimmy Saab's evidence to provide independent support for the reasons that I have given. There is evidence that does provide support for the plaintiff's account that he suffered injury on 8 November 2001. The plaintiff sought medical treatment on that day and gave an account of having suffered a workplace injury in terms broadly consistent with his evidence. He did not return to the site after 8 November 2001. Regardless of whether he has exaggerated the extent of any injury, and any resulting disability, this circumstance points to him having sustained an injury on that day. 109 It remains that the plaintiff must discharge the onus of establishing on the balance of probability that he suffered his injury in the way he has described. Taking into account the inconsistencies between the account given in the Employees' Report of Injury and the unsatisfactory features of his evidence that I have detailed I am not persuaded that he has discharged that onus. I am not satisfied that the plaintiff has established on balance that he suffered any injury as the result of a fall at the site occasioned by a plastic fillet giving way on a plywood access ramp. 110 I record the following findings in the event that I am wrong in concluding that the plaintiff has failed to establish his case on liability. 111 The medical evidence establishes that the plaintiff suffers from low lumbar disc disease, including a disc protrusion at L5-S1. The medical opinions vary between Dr Stephens' conservative assessment that the plaintiff is fit for all but the heaviest types of work (and that overall he has suffered a ten percent permanent impairment of the back), to Dr Endrey-Walder's assessment that the plaintiff suffers a thirty-five percent permanent impairment of the back and a fifteen percent permanent loss of efficient use of the left leg at or above the knee, and taking into account his fairly narrowly defined qualifications, that considerable concern must exist as to his vocational rehabilitation. Each of the assessments made by the doctors of the extent of the plaintiff's incapacity was based on a history of symptoms that I am satisfied was exaggerated. 112 Mr Hennessey submitted for the purposes of s 16 of the Act (which governs the determination of damages for non-economic loss) that the evidence established a significant interference with the plaintiff's enjoyment of life and that an assessment of 40 percent of the most extreme case was appropriate (T 199.30). The history given to Dr Zepinic and to the other health professionals, including Ms Davidson, concerning the impact of the accident on the plaintiff's enjoyment of life is one that I do not accept to have been established by credible evidence. I am not satisfied that the plaintiff has passed the threshold with respect to the award of damages for non-economic loss. 113 In the course of closing submissions Mr Hennessey did not press the claims with respect to psychiatric injury or for domestic assistance. 114 In light of City Formwork's performance in the year ending 2002 and the other evidence touching on the plaintiff's financial position in the period following the accident, the plaintiff's claim with respect to damages for past economic loss was not advanced with any force (T 216.55-56). I am not satisfied that the plaintiff has established that any impairment in his capacity to earn income by reason of an injury sustained on 8 November 2001 has been productive of actual loss in the period to the date of trial. 115 In closing submissions Mr Hennessey acknowledged the force of the criticisms directed at his client's credit. He said this: "It is understood that there are problems in relation to overstatement comment exaggeration or whatever. The point I seek to make is the man has a basic injury that puts him out for the formwork that he used to do" (T 216.45-49). 116 The plaintiff's claim as it was developed in the course of closing submissions focussed on the submission that he had a primary injury, and taking into account his age and the medical evidence (accepting a degree of exaggeration in the extent of his symptoms) it would be reasonable to assume that he has suffered some impairment of his capacity to earn income that will be productive of loss in the future. 117 Mr Hennessey did not invite me to approach the calculation of future economic loss based on the most favourable of the assumptions in the accountancy report prepared by Dolman Bateman, which took as a starting point that future economic loss was to be calculated by reference to the plaintiff's earnings together with fringe benefits and provision for superannuation in the year ended 30 June 2002. Mr Hennessy referred to the Supplementary Dolman Bateman report of 4 July 2005 (Exhibit K) and submitted that scenario two (at p 1) based on an average of earnings over a three year pre-accident period, a figure of $54,203 pa would be an appropriate measure when assessing future economic loss. This was rounded off to a $1,000 per week gross, producing a net income of $750 per week. In Mr Hennessy's submission, it would be reasonable for the Court to approach an assessment upon the basis of a one third loss arising out of impairment of capacity to earn income in the future (T 207.6). I record Mr Hennessy's submission. For the reasons that I have earlier given I am not satisfied that the plaintiff has established impairment in his capacity to earn income. 118 Mr King submitted that there was no utility in the cross-claim in any event, there being no fund that could be assessed against the cross-defendant, since the plaintiff was subject to the post 27 November 2001 regime under the Workers Compensation Acts and there was no evidence that he had suffered a degree of 15 percent (or greater) whole person impairment. The plaintiff's case was to be distinguished from Clout Industrial Pty Ltd (In Liquidation) v Baiada Poultry Pty Ltd [2004] NSWCA 89; 61 NSWLR 111 which had not been concerned with the six month delay before commencement of court proceedings mandated by s 151C(1) of the WCA. It is not necessary for me to deal with this question. However, I note in the course of submissions it was put by the cross-claimant that it was open to find that the plaintiff had sustained a 15 percent degree of permanent impairment. I do not so find. ORDERS 1. Verdict and judgment for the defendant; 2. Verdict and judgment for the cross-defendant on the cross-claim; 3. The plaintiff is to pay the defendant's costs; 4. The cross-claimant is to pay the cross-defendant's costs. ******* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.