March 2020


Appeal court rejects unfair trial allegations

by John Reynolds, KT Journalism

The NSW Appeal Court has rejected an injured construction site supervisor’s argument a trial judge had treated his evidence unfairly, ruling Andrawos Zaya’s appeal grounds were at times “pettifogging”.

On 20 December 2019, Appeal Court Justice Mark Leeming, with whom Justices Anthony Meagher and Fabian Gleeson agreed, found NSW Supreme Court Justice Stephen Campbell had properly considered all the evidence and his rejection of Mr Zaya’s negligence claim was “detailed and nuanced”.

Justice Leeming said many of Mr Zaya’s 18 appeal grounds were poorly framed and “attack minor and, on occasion, miniscule aspects” of Justice Campbell’s “careful, evaluative reasoning”.

The Appeal Court heard Mr Zaya was a supervisor on a Marrickville, Sydney, construction site when he fell down a newly poured concrete stairwell on 4 April 2012.

He sued builders RPS Manidis Roberts Pty Ltd and UGL Engineering Pty Ltd, trading as Energised Alliance, and his employer, concrete contractor Silver Raven Pty Ltd, for negligence.

Mr Zaya argued timber formwork supporting the concrete had been removed from the flight of steps above the landing but remained on the bottom flight. As he descended the poorly lit stairs, he observed the formwork was removed and did not see it was still in place below the landing.

He tripped on the unexpected formwork and fell, receiving minor injuries.

On 8 May 2019, Justice Campbell rejected Mr Zaya’s and his witnesses’ evidence. He found neither flight had been stripped of formwork when Mr Zaya descended the stairs.

He agreed with expert evidence it was “inherently improbable” the formwork had been removed from the top flight but left in place on the lower stairs. If that had occurred, it was likely to have been obvious to Mr Zaya and other workers.

“Experienced concrete workers [can] safely negotiate fully formed-up staircases by exercising due care for their own safety, and commonly do so,” Justice Campbell said.

Nr Zaya’s appeal did not ask the Appeal Court to make a finding in his favour but to instead overturn Justice Campbell’s ruling and order a retrial. He asked the second trial be confined to liability and not consider facts.

His 18 appeal grounds included Justice Campbell did not consider all the evidence; had drawn adverse inferences from whom Mr Zaya had called or not called as witnesses; had erred in his fact-finding processes; had wrongly rejected Mr Zaya’s and his witnesses’ evidence; had misunderstood the facts; and had not provided procedural fairness.

Appeal Court Justice Leeming rejected all Mr Zaya’s grounds. He found Justice Campbell had evaluated all the evidence before him “carefully and transparently”.

In rejecting Mr Zaya’s and others’ evidence, Justice Campbell had not been unfair and had not suggested they had reconstructed, invented or fabricated their version of events. He had correctly identified inconsistencies and imperfections in their six-year-old recollections.

Justice Leeming said no adverse or unfavourable inference was drawn from Mr Zaya’s failure to call other employees to give evidence. All Justice Campbell did was suggest testimony from other workers would not have advanced Mr Zaya’s case.

Justice Leeming said Mr Zaya’s appeal could only succeed if he proved Justice Campbell had misunderstood or entirely overlooked significant evidence that supported Mr Zaya’s case.

Mr Zaya had shown no appealable errors in the analysis, reasoning or judgement.

Zaya v RPS Manidis Roberts Pty Ltd and UGL Engineering Pty Ltd t/a Energised Alliance [2019] NSWCA 320, 20 December 2019

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