When the Defendant's Witnesses have no good
reason to remember – the Importance of Incident
Hutchison Construction Services Pty Ltd v Fogg; Fogg
v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast
 NSWCA 135
Absent clear contemporaneous evidence, or a "dramatic
event", a plaintiff's evidence about an event will almost
always be accepted over others because they have the best reason to
Following on from Leighton Contractors Pty Ltd v Fox1, courts will look closely at the specific actions and
responsibilities of contractors on construction sites and will not
necessarily 'spread the love'.
Once a contractor directs another contractor to perform even a
basic task, they have a duty to ensure that the method for doing it
is reasonably safe.
In October 2008, the plaintiff strained his ankle whilst
delivering sheets of plasterboard to a construction site at the
Kiama showgrounds. The plaintiff refused medical assistance and
continued to work for the balance of the day, but by the time of
appeal it was accepted that his injury turned out to be a serious
The Plaintiff commenced proceedings against Kane Constructions
(NSW) Pty Ltd (Kane) who was the head contractor,
Hutchison Construction Services Pty Ltd
(Hutchison) who Kane contracted with for the
external cladding, and Plastamasta South Coast
(Plastamasta) who was his employer. The trial
judge dismissed the plaintiff's claims against Kane and the
Plastamasta but awarded damages of $944,255 against Hutchison.
Hutchison appealed numerous aspects of the judgment and the
plaintiff cross-appealed. However, the key issues were whether it
was open for the trial judge to find that the incident occurred as
alleged, whether Hutchison had breached its duty, and whether there
should be an apportionment against the employer. The claims and
cross-claims against Kane were not pursued on appeal.
The plaintiff's evidence was essentially that he was
directed by a Hutchison employee to deliver the plasterboard onto a
surface that was uneven, inter alia, because a step had not yet
been constructed. Hutchison argued that it was not open for the
trial judge to accept the plaintiff's account primarily on the
basis that a photo showed that the bottom step was in place was
confirmed by three witnesses. Further, that this evidence amounted
to an "incontrovertible fact" enabling appellate
The court rejected this argument on the basis that there was no
"incontrovertible" evidence as to when the photograph was
taken and the trial judge had concluded that the evidence of
Hutchison's three witnesses was "wholly
reconstructed". In determining which evidence the trial judge
was entitled to accept, the court found that the photographic
evidence and testimony of the three witnesses was not an
In forming this view, the court referred to the perennial
problem for defendants in that "there [was] no good reason why
any of the men on site, aside from Mr Fogg himself, would have any
clear recollection of any aspect of the incident".
Hutchison also argued that the trial judge erred in his
consideration of breach, inter alia, on the basis that Hutchison
was "just another contractor" with limited ability to
direct the plaintiff and that the everyday experience in carrying
bulky items was not one requiring any particular measures to be
taken. In rejecting these arguments the court found that the risk
posed by the uneven ground was not obvious and that, on its own
evidence, Hutchison had the right to direct the manner in which the
plasterboard was delivered. Further, that the risk of injury could
have been avoided by taking one of two simple measures. In
particular by waiting for a temporary loading dock to be available,
or delivering the plasterboard to some other place on the site with
an even surface.
On the issue of apportionment against Plastamasta, the court
found that there was nothing in the evidence to show that another
employee "jointly decided where to direct the plaintiff to
park". Given the high and non-delegable nature of
Plastamasta's duty, it somewhat surprisingly avoided
This case is yet another reminder that unless a defendant's
witnesses have very good reason to remember an incident, it will be
very difficult for their evidence to be accepted over a plaintiff.
Whilst very difficult to justify for seemingly innocuous incidents,
the only way around this is to conduct a thorough contemporaneous
investigation. More specifically for cases in the construction
industry, litigants ought to be careful not to take the
'scatter gun' approach by suing everyone on site. Courts
will look closely as to who bore the actual responsibility for the
event resulting in injury.
1  HCA 35; 240 CLR 1
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