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Fake facts? The trial judge’s role

  • Newsletter Article
  • Published 28.02.2020

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



This case considers the evidentiary burden carried by the plaintiff and accepts that there are risks of injury on building sites which are “par for the course” and in respect of which the employee is expected to take reasonable care.


Mr Zaya claimed that he slipped and fell, injuring himself, on a recently constructed concrete stairway connecting the partially completed ground floor with the basement in the building site where he was working. He sued the occupier of the building site, Energised Alliance, and his employer, Silver Raven. His employer 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 who had the task of stripping the formwork after the concrete had cured, and Mr Zaya’s role extended to supervising that process.

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”. Mr Zaya’s case was that the staircase 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. One effect of this was to broaden the tread of the higher step. However, another effect was to make the tread of a lower step narrower because part of that tread was occupied by the base of the riser formwork.

The primary judge found that, contrary to Mr Zaya’s case, the staircase 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. Accordingly, Mr Zaya’s claim against both defendants failed.

The trial judge said:

The plaintiff has not proved his case about the condition of the formwork or about how it came to be in that condition to my satisfaction on the balance of probabilities. To my mind, the evidence establishes the probability that the formwork was wholly intact and unstripped at the time of the plaintiff’s accident. As described in the incident report, Mr Zaya simply slipped and fell as he was descending the staircase. It is the ordinary experience of life that such falls can occur without negligence on the part of anyone responsible for the construction or maintenance of a staircase. Moreover, that such an inherent and obvious risk materialised in this case is supported by the considerations that Mr Zaya agreed that: he was not taking particular notice as he descended the staircase; he was not looking down at his feet; he would have had no trouble negotiating riser shutters if he was aware they were there; and had he used the handrail, he could have saved himself from falling.”


The Court of Appeal noted that the trial judge had very carefully analysed all of the oral and documentary evidence, much of which related to the dates when the concrete had been poured and the usual practice of leaving the formwork in place for 21 days to allow the concrete to cure. The plaintiff was not alone at the time of the fall, so there was no dispute that the fall had occurred.

The Court said that the judge’s analysis was detailed and nuanced. His Honour brought to bear a range of matters in reaching the ultimate finding that Mr Zaya had not made out his case that there remained unstripped formwork on two steps. There was no finding of reconstruction or recent invention or fabrication on the part of the plaintiff. However, in his reasons his Honour had regard to:

  • the absence of any contemporaneous record,
  • the obvious imperfections in the recollections of the witnesses, and
  • 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.

The Court bore 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, was scarcely a remarkable event; and that all witnesses were giving evidence of events of more than six years previously.

The Court said that the primary judge had to determine whether Mr Zaya’s case that two steps’ worth of formwork remained on the staircase creating a hazard was or was not made out. The onus lay on Mr Zaya to adduce the evidence to persuade the judge that this was so. 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 the witness.

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.

A plaintiff may succeed in the absence of contemporaneous documentation. The plaintiff’s case will be made more difficult if such documents as do exist suggest that the circumstances alleged by the plaintiff 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 based upon a logical analysis of the evidence.

There was no reason to suggest that the primary judge departed from what are 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.


The decision provides a demonstration of the need for a plaintiff, or any party, to satisfy the trial judge as to all of the components that need to be proved to establish liability or a defence to a claim. It is for the trial judge to weigh up the merits and persuasive power of competing statements and versions of events in the context of any available documentation or objective evidence.

When the trial judge undertakes a detailed analysis of the evidence and applies acceptable standards of analysis and reasoning to reach a conclusion as to the facts, the Court of Appeal will not disturb those findings.