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

1. [1]

   MEAGHER JA: I agree with Leeming JA.

2. [2]

   GLEESON JA: I agree with Leeming JA.

3. [3]

   LEEMING JA: Mr Andrawos Zaya appeals from the dismissal of proceedings brought by him in the Common Law Division of the Supreme Court alleging negligence against the first and second respondents. The first respondent was a partnership trading under the name “Energised Alliance” which occupied a building site in Marrickville. The second respondent, Silver Raven Pty Ltd, employed Mr Zaya as a site supervisor. Silver Raven was contracted to place formwork, fix reinforcement steel, pour and pump concrete, finish the surfaces and strip away the formwork when the concrete had cured. Much of that work was done by sub-contractors, including PNT Formwork and Welding Pty Ltd. Relevantly for present purposes, employees of PNT had the task of stripping the formwork after the concrete had cured, and Mr Zaya’s role extended to supervising that process.

4. [4]

   Mr Zaya claimed that he slipped and fell, injuring himself, on a recently constructed concrete stairwell known as “staircase 3” connecting the partially completed ground floor with the basement in the afternoon of 4 April 2012. Whether in fact he had slipped and fallen on 4 April 2012 was in issue at trial, six years after the event, but no challenge was made in this Court to the finding, favourable to Mr Zaya, that he did so slip and fall on staircase 3 at around 3pm on 4 April 2012.

5. [5]

   The primary judge recorded that it was common ground that “experienced concrete-workers are able to safely negotiate fully formed-up staircases by exercising due care for their own safety, and commonly do so”: at [34]. Mr Zaya’s case was that staircase 3 was neither fully formed-up, nor completely stripped of formwork, but rather that on the lower flight of steps, beneath a landing, formwork remained on the upper surfaces of two steps. In particular, there remained a vertical “riser shutter”, adjacent to the vertical surface (“riser”) of the step, the top of which was level with the horizontal surface (“tread”) of the higher step. One effect was to broaden by around 4 inches the tread of the higher step. However, another effect was to make the tread of a lower step narrower by around 4 inches, because part of that tread was occupied by the base of the riser shutter. The point is not complicated, save perhaps when it is described in words. A picture may assist. The following was in evidence and drawn by a key witness, Mr Peter Abunucerah, of whom the primary judge formed a “generally favourable impression” as a witness “trying his best to give an accurate account of relevant matters so far as his recollection would permit”: at [72]. As it happens, the diagram is also relevant to grounds 5 and 6 of the appeal.

6. [6]

   Mr Zaya’s case was that he was not expecting there to be any timber formwork on the staircase, and slipped and fell when his feet encountered the irregular width caused by the formwork. There was no precise finding as to the manner of his fall, just that the unexpected presence of the riser shutters “broke Mr Zaya’s gait causing him to lose balance, or lose his footing, or slip and fall down the stairs”: at [34]. One possibility is that when his foot encountered the narrower tread of the stair which did not have formwork on it, it overstepped the edge. The primary judge was conscious of the facts that (a) a simple description that a person slipped and fell often fails to describe the complex bio-mechanics involved and (b) in the present case, nothing turned on any more precise account. No challenge was made to any aspect of this reasoning.

7. [7]

   With that background, it is convenient immediately to turn to the “central question of fact” which the primary judge introduced at [34]:

8. [8]

   The primary judge found that, contrary to Mr Zaya’s case, staircase 3 had not been stripped of all of its formwork save for that on two steps. His Honour found instead that formwork stripping had yet to commence on that staircase. This was dispositive of Mr Zaya’s claim against both respondents. No contrary submission was made on appeal. The primary judge went on to analyse the legal liability of the respondents, to make contingent findings of apportionment and quantum, which may be passed over (although they were challenged by cross-appeal and notice of contention by Energised Alliance).

9. [9]

   The entirety of the appeal was focussed, directly or indirectly, on challenging that dispositive finding of fact. That was no small task. As will be seen below, the primary judge brought to bear a range of matters which bore upon that finding: the relatively exiguous contemporaneous documents, the recollections of the three main witnesses (Mr Zaya, Mr Abunucerah and Mr Rod Valletta, who was Energised Alliance’s site supervisor), and the apparent logic of events. As will be seen, his Honour did so carefully and transparently.

10. [10]

    Mr Zaya’s appeal recognised, very properly, that this Court could not itself make the finding as to the partial stripping of formwork from staircase 3 on which any ultimate success depended. He sought to set aside the judgment and orders for a retrial, confined to liability. However, it is fair to say that in very large measure, the grounds of appeal sought to challenge minor, and sometimes miniscule, aspects of careful, evaluative reasoning occupying some 28 pages, from [34] to [99]. I shall deal with each of the individual grounds of appeal below, in turn. But it may be doubted whether most of those grounds, even if they were accepted, would amount to error sufficient to warrant a retrial.

11. [11]

    In circumstances where the appeal turns on a single question of fact, the most convenient course is to summarise (a) the documentary evidence bearing upon the presence or absence of formwork on staircase 3 on 4 April 2012 and (b) the reasoning of the primary judge. It will therefore be possible to resolve the grounds of appeal relatively concisely.

Evidence bearing upon Mr Zaya’s fall

1. [12]

   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:

2. [13]

   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. [14]

   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. [15]

   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. [16]

   Based on those matters alone, the objectively established facts on the afternoon of 4 April 2012 were as follows.

   1. (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. (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. [17]

   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.

7. [18]

   There are a small number of contemporaneous documents.

8. [19]

   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.

9. [20]

   The document identified the location of the incident as “staircase 3 – North-western” and described the incident thus:

10. [21]

    The document also described the investigation which subsequently occurred as follows:

11. [22]

    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).

12. [23]

    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.

13. [24]

    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.

14. [25]

    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:

15. [26]

    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.

16. [27]

    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:

17. [28]

    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.

18. [29]

    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.

19. [30]

    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.

20. [31]

    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).

21. [32]

    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.

22. [33]

    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.

23. [34]

    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:

24. [35]

    The annexure was the diagram reproduced above.

25. [36]

    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.

26. [37]

    Mr Abunucerah’s statement proceeded on the basis that 4 April 2012 was 21 days after staircase 3 had been poured:

27. [38]

    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):

28. [39]

    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.

29. [40]

    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.

30. [41]

    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.

31. [42]

    In his statement, Mr Valletta described when he learnt of the incident as follows:

32. [43]

    As will be seen below, the primary judge was critical of Mr Valletta’s evidence.

Reasons of the primary judge

1. [44]

   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. [45]

   Ultimately, the various grounds sought to undermine the findings and reasoning leading to the conclusion at [99] as follows:

3. [46]

   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. [47]

   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. (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. (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. (3)

      “Assessment of the evidence on the formwork issue” at [65]-[82]; and

   4. (4)

      “Findings of fact” at [83]-[99].

5. [48]

   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. [49]

   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. [50]

   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. [51]

   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.

9. [52]

   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:

10. [53]

    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. [54]

    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. [55]

    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. [56]

    His Honour said at [66]:

14. [57]

    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]:

15. [58]

    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. (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. (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. (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. [59]

    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:

17. [60]

    The primary judge dismissed Mr Valletta’s evidence, stating that save in one respect:

18. [61]

    After that survey, his Honour stated at [76] that:

19. [62]

    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. [63]

    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:

21. [64]

    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. [65]

    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. [66]

    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. [67]

    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.

25. [68]

    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.

26. [69]

    This ground turns on [93], which although it is in the lengthy passage reproduced above, may be repeated for convenience below.

27. [70]

    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.

28. [71]

    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.

29. [72]

    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]:

30. [73]

    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.

31. [74]

    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.

32. [75]

    Sub-ground 3(a) was the only sub-ground developed in the appellant’s written submissions in chief. It was not developed orally.

33. [76]

    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.

34. [77]

    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.

35. [78]

    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.

36. [79]

    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:

37. [80]

    It is not necessary to analyse that speculative line of reasoning in any detail. It does not bear upon this ground of appeal.

38. [81]

    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.

39. [82]

    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.

40. [83]

    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.

41. [84]

    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.

42. [85]

    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.

43. [86]

    It is convenient to reproduce paragraph [53] of the reasoning of the primary judge, on which this ground turns:

44. [87]

    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:

45. [88]

    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.

46. [89]

    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.

47. [90]

    These three grounds may be addressed together.

48. [91]

    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.

49. [92]

    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.

50. [93]

    The second aspect of ground 4, and ground 5, are based on [42], which was as follows:

51. [94]

    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].

52. [95]

    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.

53. [96]

    The whole of the context of this part of the cross-examination was as follows:

54. [97]

    That cross examination was based upon Mr Abunucerah’s description of the formwork on the staircase in his statement which is reproduced above.

55. [98]

    What was said orally in support of this submission was:

56. [99]

    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.

57. [100]

    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.

58. [101]

    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:

59. [102]

    The submission was elaborated orally:

60. [103]

    After taking the Court to [41] of the judgment, Mr Gross continued:

61. [104]

    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:

62. [105]

    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.

63. [106]

    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.

64. [107]

    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.

65. [108]

    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.

66. [109]

    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.

67. [110]

    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.

68. [111]

    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:

69. [112]

    The submission ultimately put in writing was as follows:

70. [113]

    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:

71. [114]

    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.

72. [115]

    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.

73. [116]

    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.

74. [117]

    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.

75. [118]

    Ground 8 made the serious allegation that there had been a trial that was procedurally unfair.

76. [119]

    This ground was supported by precisely two sentences in written submissions in chief:

77. [120]

    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:

78. [121]

    But the appellant’s oral submissions reverted to an untenable broader submission. Mr Gross said:

79. [122]

    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.

80. [123]

    I do not accept the submission.

81. [124]

    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.

82. [125]

    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.

83. [126]

    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:

84. [127]

    During closing submissions, counsel for Energised Alliance said, in relation to whether Mr Valletta directed PNT to desist from stripping the formwork:

85. [128]

    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.)

86. [129]

    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.

87. [130]

    Ground 9 falls away. It is premised upon a finding of recent invention. Mr Zaya belatedly conceded there was no such finding.

88. [131]

    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.

89. [132]

    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.

90. [133]

    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.

91. [134]

    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.

92. [135]

    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)).

93. [136]

    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.

94. [137]

    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.

95. [138]

    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.

96. [139]

    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):

97. [140]

    That sits awkwardly with the entirety of the written submissions in chief, which was:

98. [141]

    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:

99. [142]

    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.

100. [143]

     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.

101. [144]

     This ground was advanced orally as follows:

102. [145]

     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.

103. [146]

     Extraordinarily, senior counsel for Mr Zaya made complaint of the reasoning at [66] as follows:

104. [147]

     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.”

105. [148]

     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.

106. [149]

     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.

107. [150]

     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. [151]

   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.