Bakshi v Wilson Security Pty Limited

Case •

[2010] NSWWCCPD 28

•

22 March 2010
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Bakshi v Wilson Security Pty Limited [2010] NSWWCCPD 28
APPELLANT: Joginder Singh Bakshi
RESPONDENT: Wilson Security Pty Limited
INSURER: GIO General Limited
FILE NUMBER: A1-6483/09
ARBITRATOR: Mr C Tanner
DATE OF ARBITRATOR’S DECISION: 27 November 2009
DATE OF APPEAL DECISION: 22 March 2010
SUBJECT MATTER OF DECISION: Injury; evidence not considered
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING: On the papers
REPRESENTATION: Appellant: Sanford Legal
Respondent: Hicksons
ORDERS MADE ON APPEAL:

The Arbitrator’s determination of 27 November 2009 is revoked and the following order made:

“1.   The matter is remitted to a different Arbitrator for re-determination.

2.     Costs of the second arbitration, and of the first arbitration, are to follow the event of the second arbitration.”

The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

  1. The appellant worker, Mr Bakshi, is a security guard.  He started work with the respondent employer, Wilson Security Pty Limited (‘Wilson Security’) on 23 August 2006.

  1. Mr Bakshi alleges that at about 11.30pm on Saturday 23 May 2009, he was performing his usual duties at Chullora Market Place when he slipped on a wet floor whilst walking just outside the cash registers at the Woolworths supermarket.  He did not fall to the ground, but felt pain in his left leg.  He claims to have reported his injury to Woolworths’ duty manager, Mr Shameem Khan, at about 11.55pm on the evening of 23 May 2009.  He also claims to have recorded the incident in an activity log on the same evening.

  1. Wilson Security denies that any injury occurred and called evidence from Mr Khan that he ceased work at 7.30pm on 23 May 2009.

  1. Mr Bakshi submitted a claim form on 28 May 2009.  Wilson Security’s insurer, GIO General Limited (‘GIO’), denied liability in a section 74 notice dated 1 July 2009.  The insurer disputed injury, whether employment was a substantial contributing factor to any injury, incapacity, and whether the claimed medical treatment was reasonably necessary as a result of any injury. 

  1. In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 14 August 2009, Mr Bakshi claimed weekly compensation from 23 May 2009 to date and continuing together with hospital and medical expenses.  It alleged that he injured his back and left leg on 23 May 2009 in the following circumstances:

“Client was walking when he slipped on his left foot.  The sole of his left shoe slid a distance of 2 feet in a forward direction.  The floor was wet as it was just cleaned by the cleaner of the Centre Management.”

  1. In a Reply filed on 4 September 2009, Wilson Security disputed liability on the grounds set out in the section 74 notice dated 1 July 2009.

  1. The Commission listed the matter for conciliation and arbitration on 5 October 2009.  On that day the parties’ legal representatives made lengthy submissions, but called no oral evidence.  In a reserved decision delivered on 27 November 2009, the Arbitrator concluded that he was unable to accept the worker’s version and he made an award in favour of the employer.  In a Certificate of Determination issued on 27 November 2009 the Commission made the following formal orders:

“(1)   Award for the Respondent in respect of the Applicant’s allegation of injury

during the course of his employment on 23 May 2009.

(2)     There is no order as to costs.”

  1. In an appeal filed on 12 January 2010, Mr Bakshi seeks leave to challenge the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary Threshold

  1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

  1. It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.

Time

  1. The appeal was initially filed within time on 23 December 2009. However, as Part 3 of the Appeal Against Decision of Arbitrator (certification by legal representative) had not been signed, the Registry rejected the appeal in a letter dated 29 December 2009. Because of the Christmas vacation, the worker’s solicitor’s office was closed from 23 December 2009 until 11 January 2010. The appeal was filed again on 12 January 2010, several days outside the 28-day period in section 352(4) of the 1998 Act. Mr Bakshi has sought an extension of time in which to appeal.

  1. An extension of time in which to appeal is governed by Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the Rules’), which provides:

“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”

  1. The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:

“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”

  1. The appeal in the present matter was initially filed in time, but rejected because of what I consider to be an administrative oversight, namely the worker’s solicitor failed to sign Part 3 of the appeal document.  That was clearly an oversight that has caused no prejudice whatsoever to the respondent employer.  Whilst the employer takes issue with the appeal being filed out of time, it has made no submissions as to prejudice, but has merely submitted that there is no adequate explanation for the failure to sign the certification before 11 January 2010.

  1. I am satisfied that exceptional circumstances exist that justify the extension of time to appeal in this matter.  My reasons are as follows:

(a)     the discretion to extend time to appeal must be exercised in order to do justice between the parties;

(b)     the appeal was filed only a few days out of time;

(c)     the last day in which to appeal within time fell on 25 December 2009 (Christmas Day) and, therefore, time to appeal did not expire until Tuesday 29 December 2009 (section 36(2) Interpretation Act 1987). On that day, the worker’s solicitor’s office was closed for the annual Christmas/New Year vacation. But for that fact the administrative error in the appeal document may have been rectified and the appeal filed again, within time, on 29 December 2009;

(d)     the employer has pointed to no prejudice it will suffer if time to appeal is extended until 12 January 2010, and

(e)     the worker’s solicitors acted promptly on discovering that the appeal had been rejected.

  1. I extend time to appeal until 12 January 2010.

ON THE PAPERS

  1. Section 354(6) of the 1998 Act provides:

“(6)   If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

  1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

THE EVIDENCE

Documentary evidence

  1. Mr Bakshi relies on a photocopy of pages 44, 45 and 46 of a notebook.  The notebook is not properly identified or described in any way.  The entries for 23 May 2009 cover the period from 2000 (8.00pm) to 2400 (midnight).  The entries are said to be in Mr Bakshi’s handwriting. 

  1. Also in evidence is a document under the heading “Wilson Activity Log”.  This document identifies the site as “Woolworths Chullora” and has several entries for “23/05” by security officer “J Bakshi”, the worker.  This document has entries recorded by Mr Bakshi at 2000, 2100, 2200, 2300, and 2400.  It also has an additional entry at 2400 in what appears, at first glance, to be a slightly different handwriting. 

  1. Mr Bakshi completed a Security Incident Report no. 08202 dated 23 May 2009.  This document describes the “Type of Incident” as “back pain injury due to slip” at Woolworths Chullora.  The date is given as 23 May 2009 and the time as “2400”.  Under “Details of Incident”, the following appears:

“I was patrolling [sic] near a checkout counter No. 7 just out side of the Woolie’s counter, I slipped on the wet floor.  I reported to the duty manager Mr Shimim [sic, Mr Kahn].  I told him I got a very strong pain on my back.  He said because you standing and you have to take rest.  An [sic] also I reported to Mr Marrin [sic, Mr Budnij] in liquor store.”

  1. The Security Incident Report is signed by Mr Bakshi and dated 23 May 2009.

  1. The first medical certificate in evidence is a non-WorkCover medical certificate from Dr Hassan dated 25 May 2009 referring to the worker suffering lumbar back pain. 

  1. On 25 May 2009, Mr Bakshi wrote to the manager of Centre Management of Chullora Market Place in the following terms:

“Dear Sir,

I would like to inform you that I was [sic] slipped on the floor of your Shopping centre at just out side of the Woolworths store near a shoe repair’s shop on the date 23rd May 2009 at time approximately 11.30pm on Saturday.

On [sic] that time Mr Sameer (SAM) [sic, Mr Khoshasha] was doing the cleaning the floor of Woolworths side and left the wet floor near and out side of the Woolworths counter number 7. 

After slipped I feel very Strong pain on [sic] my lower back.

This information is for your record [sic] and also I would like to give you advice that cleaning process should not start before the [sic] midnight because Woolworths store open until midnight and customers are keep coming in the store. 

Please stop cleaning the floor before midnight to avoid to another accident in your shopping centre.”

  1. On 27 May 2009, Mr Bakshi wrote to the manager of Wilson Security, Mr Cashman, in the following terms:

“I am writting [sic] to you regarding my injury, which one was [sic] happened on 23rd May 2009 at work Location – Chullora Woolworths.  I was sliped [sic] on the floor because floor was wet.  After that I felt very strong pain on my lower back.
I reported to your control room on 24th May 2009 to Mr Ali at approx 10.30 AM and requested for a sick leave for one day.

Next morning on 25th May 2009 I see to [sic] my doctor,  He checked me and send [sic] me for a x-Ray and CT scan.  I received a report and doctor gave me advice to take full rest until 30.05.09.  It’s [sic] mean I am not available for work from 27.05.09 to 30.05.09.  Could you please arrang [sic] to [sic] someone to cover my shift.

I am also sending a copy of Workcover Medical Certificate, Incident report and x-ray and CT scan report to you to keep your record.

X-ray report showing that I have disc problem on my back.  So I can’t do standing job.  Please organise a sitting job if you have.  Thanking you, yours faithfully Joginder Bakshi”

  1. This letter has annotations written in the left hand margin by an unidentified person.  The annotations read:

“Left leg
painful
call on the 24/5.
No mention of injury to lower back.
Been Dr
on the
27/5 (Med Cert)
Not 25/5 as stated above.”

  1. The first WorkCover medical certificate is dated 27 May 2009 and is also from Dr Hassan.  Under “How the injury occurred”, the following is recorded (presumably by Mr Bakshi):

“I was on duty as a security officer and feel very strong pain while on patroling [sic]– By [sic] foot patrolling [sic] I sliped [sic] on wet floor”

  1. Under “diagnosis”, Dr Hassan has recorded “discogenic nerve root [indecipherable] with radiation to (L) leg”.

  1. Mr Bakshi completed a claim form on 28 May 2009 in which he described his injury as occurring in the following circumstances:

“While my patroling [sic] I was sliped [sic] on the wet floor”

  1. The date and time of injury is recorded as “23.30 pm” on 23 May 2009.  The injury was said to have been reported on 27 May 2009 to Mr Cashman and Ms Suzi.  Mr Bakshi added:

“I reported to control room was sick on 24th May 09 on 10.30 am”

  1. Mr Bakshi identified “Mr Shimim [sic, Mr Kahn] Duty Manager” as a witness to the incident.

  1. Also in evidence is an undated and unsigned document headed “Wilson Register of injuries, incidents and near misses”.  That document describes the “Nature of the injury/incident” as “sliped [sic] on the wet floor” at 2330 on 25 May 2009 when he injured his left leg.  Under “Cause of injury/incident” appear the words “strong pain from hip to bottom” appear. 

Mr Bakshi’s evidence

  1. Mr Bakshi’s evidence is mainly set out in his statements dated 13 June 2009, 14 July 2009 and 13 August 2009.  The second statement is essentially a response to the employer’s evidence and will be considered after I have reviewed that evidence.

  1. In his first statement, Mr Bakshi stated:

(a)     he had never previously suffered any injury to his back and never had any type of medical treatment for any low back condition or injury prior to the treatment he obtained for his low back after 23 May 2009;

(b)     he worked for Wilson Security on a permanent part-time basis between 8.00pm and midnight from Wednesday to Sunday;

(c)     on Saturday 23 May 2009, he commenced work at Chullora Market Place at 8.00pm.  His duties required him to patrol in and around the Woolworths store at that centre;

(d)     between 11.30pm and 11.45pm he was conducting a foot patrol outside checkout number seven when his left foot slipped about two feet.  Once he stopped sliding he felt a sudden pain in the left side of his lower back;

(e)     he spoke to Woolworths’ Mr Shameem Khan at around 11.45pm.  Mr Khan said, “you look very ill.  Your eyes are very red.  What happened to you?”  The worker replied “I feel very strong pain in my left leg”.  Mr Khan said “Yes your job is standing?”  The worker replied “Yes but I slipped on the floor and that is why I have pain in my back and in my leg”;

(f)      he did not report the incident or his injury to Wilson Security at that time, though he was aware he had an obligation to report any incident or injury to his employer;

(g)     he reported to Wilson Security on Sunday 24 May 2009 at about 10.30am, but did not report the slip and the back injury, but asked for time off work for a sore left leg;

(h)     after he visited his doctor on Monday 25 May 2009, he again contacted Wilson Security and reported that he had pain in his back that was giving him pain in his left leg.  He reported that the pain “came” because he had slipped on the wet floor near Woolworths’ number seven counter between 11.30pm and 11.45pm on Saturday 23 May 2009.  He told them he was “going for Workcover compensation” because his doctor told him he did not know how long he would be unable to work because of his sore back and sore left leg;

(i)      “the Wilson Security people” asked if he completed a report in the “Wilson Security Log”.  He said he completed a report in the “Wilson Security Log” a few minutes after the incident happened.  The only handwriting in the “Wilson Security Log book” for the shift between 8.00pm and 12.00 midnight on Saturday 23 May 2009 was Mr Bakshi’s, and

(j)      the floor at the number seven counter was wet because a cleaner had cleaned the area between 11.00pm and around 11.30pm.  The area had been cleaned by a machine and, on the edges, by a mop.  Only some of the floor was wet.  The area where he slipped was not on Woolworths’ premises, but was on the shopping centre area “less than half a metre from Woolworth’s [sic] premises”.  The cleaner arrived to clean Woolworths around 11.00pm on 23 May 2009. 

  1. Mr Bakshi attached to his statement a diagram indicating the location of the centre’s liquor store and Woolworths.  It indicates the area of the slip to be immediately in front of the Woolworths “door shutter area” opposite counter number seven.  The following notation appears on the diagram:

“Just out side of the Woolworths store’s door on the floor, floor was wet due to cleaning process, may be water left there.  Water was very thin.”

  1. Mr Bakshi sought a review of the insurer’s decision to dispute his claim.  In support of that application he prepared a further statement dated 14 July 2009.  He repeated that his injury occurred at “approximately 11.30pm” outside Woolworths near counter number seven.  He explained that the cleaner responsible for leaving the floor wet, “Sameer” [sic, Samir Khoshasha], was employed by centre management and not by Woolworths and that he cleaned every night before midnight.  Mr Bakshi suggested that the CCTV be examined because it would demonstrate that the area was “always cleaned before midnight” with a machine and a mop.  He emphasized that he slipped in an area just outside Woolworths that was “the premises of centre management”.

  1. Mr Bakshi added that he reported his injury in the “Site Security Log Book” and completed the “Security Incident Report Book”.  He did not report the incident to Wilson Security because he thought it was a small injury and that the pain would go away if he took a sick day and rested.  When the pain “continued to worsen” he saw his doctor who arranged for a CT scan.  He then thought, “why and how could this occur.  It was the result of the wet floor on which I had slipped.”

  1. Mr Bakshi said that Mr Khan did not cease work at 7.30pm.  Mr Khan told Mr Bakshi that he was working a long shift on 23 May 2009.  Mr Bakshi saw him closing the store that evening.

Scott Phillips

  1. Mr Phillips is the NSW operations manager for Wilson Security.  He provided a statement on 9 June 2009.  He stated that prior to the evening of 23 May 2009, Mr Bakshi had been on a “work performance management program” because of an incident on 20 March 2009.  On that day (20 March 2009) Mr Bakshi went shopping at Woolworths Chullora when he should have been performing his duties as a security officer.  It is not known exactly what was involved in the work performance management program.

  1. Mr Bakshi again left his duties at about 11.15pm on the evening of 23 May 2009 to go shopping at Woolworths.  He was observed to place items into a shopping trolley and push the trolley to his car where he unloaded the items and then returned to his duties. 

  1. Mr Phillips then provided a summary of CCTV footage from 23 May 2009.

  1. At 2323 hours Mr Bakshi was observed to patrol into the liquor store part of Woolworths supermarket and was observed to rub his hand up and down his left leg as he spoke with a Woolworths employee on duty at the cash register in the liquor store.  He appeared to be complaining that he was experiencing pain in his left leg.

  1. Between 2325 hours and 2340 hours Mr Bakshi was observed to be walking in his normal manner in the vicinity of Woolworths’ “cash register bank” (presumably, Woolworths’ checkout counters).  There was no evidence that Mr Bakshi sustained any slip on a wet floor “on or about the cash register bank area between these times” (Mr Phillips’ statement, paragraph 11). 

  1. Mr Bakshi telephoned Wilson Security on Sunday 24 May 2009 and said that he was unfit for work because of pain in his left leg.  He made no allegation that he had slipped on a wet floor or that he had injured his back.

  1. At 9.35am on 27 May 2009, Mr Bakshi telephoned Wilson Security and, for the first time, alleged that he had slipped on a wet floor and injured his back at 11.30pm on Saturday 23 May 2009. 

  1. In a further conversation at 9.38am on 27 May 2009, Mr Bakshi allegedly said (to an unidentified person) that he had reported the slipping incident to Woolworths’ duty manager, Mr Khan, at around the time that it occurred on Saturday 23 May 2009.  Mr Bakshi agreed that he had not reported the matter to Wilson Security and he was unable to provide a reason for his failure to do so.  It was also alleged that Mr Bakshi said that he had “not logged the incident in the Wilson Activity Log” (emphasis added) and he was unable to provide any reason for his failure to do so. 

  1. Mr Bakshi attended at Wilson Security on 28 May 2009 and spoke with Mr Phillips.  Mr Bakshi alleged that he “had completed a report of the incident and injury contemporaneously in the Wilson Activity Log” (Mr Phillips’ statement, paragraph 15).  Mr Phillips obtained the Wilson Activity Log and stated:

“… the log reflects a non consecutive reporting of this alleged incident and injury.  Additionally the handwritten report is not in the same handwriting of Mr Baksi [sic] and the pen used is different.  The alleged report on the basis of the representations made to me by Mr Bakshi renders that report as being a forgery.”

  1. Mr Phillips added that the cleaners contracted to Woolworths Chullora denied cleaning the floors “in the cash register bank area near Register 7 at any time on the evening of Saturday 23 May 2009”.  Mr Phillips had “been advised” that the cleaners were not permitted to use fluids on the floor at Woolworths Chullora until after the shop closed for business and there were no staff, contractors, or members of the public present.

  1. Mr Phillips also provided an email on 21 September 2009 in which he referred to having checked more CCTV footage from cameras 12 and 14.  Camera 12 covered the front entry of Woolworths on the right hand side closest to the liquor store looking out into the centre.  Camera 14 covered the immediate area from the end of the cash registers to the boundary line of the shopping centre.  Neither camera revealed any cleaner working in the areas covered between 2324 and 2358.  He also examined footage from camera 32 which covered the area looking into the centre and across the front of Woolworths, just covering the area immediately in front of register seven.  Coverage from that camera from 2300 to 2358 did not reveal any cleaning work being performed.

Shameem Khan

  1. Mr Khan is the duty manager/supervisor at the Woolworths Chullora store located in the Chullora shopping complex in Waterloo Road Greenacre.  He has provided two statements.  The first is an undated hand written note and the second is a typed statement provided to investigators on 15 June 2009. 

  1. The hand written note reads as follows:

“On Saturday 23.05.09 I was doing supervising at service desk.  My shift was from 10:30 am to 7:30 pm.  Security didn’t come to me to report any inncident [sic].

Shameem Khan.”

  1. In his typed statement, Mr Khan confirmed that he had no knowledge of any incident involving Mr Bakshi on 23 May 2009.  He added at paragraph 8 of his statement:

“Shortly after 23 May 2009 I became aware of an allegation that the Security guard, Mr Bakshi had alleged that he reported his slip and back injury incident to me and that this report was made by Mr Bakshi about 11.35pm or thereabouts on Saturday 23 May 2009.  In relation to this allegation that I received this report from Mr Bakshi at this time I say that allegation is not correct or true.  If Mr Bakshi alleged that he reported the incident to me at that time then he is lying.  I know this because on Saturday 23 May 2009 I was working at Woolworth’s [sic] Chullora on the Service Desk between 10.30am to 7.30pm.”

  1. Mr Khan added that he left Woolworths shortly after concluding his shift at 7.30pm on 23 May 2009.

  1. In relation to cleaning operations at the shopping centre, Mr Khan added (at paragraph 12 of his statement):

“I state that our cleaners are not permitted to commence cleaning of the store until after the store has been closed and staff and customers have left.  On Saturdays the store does not close until 12 mid night and therefore the cleaners do not commence their work until at least 12 mid night.”

Miron Bubnij

  1. Mr Bubnij worked at the liquor shop at Chullora Market Place on the evening of 23 May 2009.  He has provided two statements.  The first is dated 8 August 2009 and the second is undated but has a fax date of “9-11-2002” [sic].  In his August 2009 statement, Mr Bubnij stated:

“Mr Joginder Bakshi, Security Guard, told me on Saturday 23rd May 2009 at approx. 11.35 pm that he got a very sharp pain in his left leg, because he slipped out side of the register number seven, due to centre management cleaning process.”

  1. In his second statement, Mr Bubnij stated:

“I/we would like to say that Mr Sameer (SAM) [Mr Khoshasha] is a permanent cleaner of Centre Management of Chullora Market Place, CHULLORA.  He cleaned the floor every night before the midnight.  He was here to cleaned [sic] the floor on 23rd May 2009 before the midnight.”

Samir Khoshasha

  1. Mr Khoshasha is a cleaner employed by Austpac Security and Cleaning to clean the Chullora Market Place shopping centre.  He was aware of Mr Bakshi’s allegation that he slipped on water outside Woolworths at about 11.30pm on Saturday 23 May 2009.  Mr Khoshasha was the cleaner on duty for Chullora Market Place on Saturday 23 May 2009.  He stated that there was no possibility that he “spilled water on or around the entrance near cash register 7 of the Woolworths store about 11.30pm on Saturday 23 May 2009”.  He added (at paragraph 7 of his statement):

“I am able to state this because I did not clean the public area near Woolworths until after Woolworths had closed for business for the day which was at 12 midnight.  I do not believe that there was any water on the floor at the front of the Woolworths store in the Chullora Market Place but if there was, it was not because of my cleaning.  This is because I had not cleaned that area at 11.30 pm on Saturday 23 May 2009.”

  1. He added that the cleaning system used in the public areas at Chullora Market Place was that a mop was applied to the floor and a “polishing machine” then dried and polished the mopped floor.  In this way, any leftover water was “expunged”. 

Jennine Edwards

  1. Ms Edwards is the administration manager for Chullora Market Place.  After examining records held at the Centre Manager’s office, she stated that Mr Bakshi never reported that he slipped or slid in water left by the centre cleaners on or about 11.30pm on Saturday 23 May 2009. 

  1. She made enquiries of the centre’s cleaning contractors.  Mr Khoshasha advised her that he “commenced cleaning the floors in the centre about 11.00pm on Saturday 23 May 2009 in the area of the centre which was closed to the public.”

  1. He added that he did not clean anywhere near the vicinity of the Woolworths store until after the store closed at midnight. 

Meidcal evidence

  1. Mr Bakshi saw his usual general practitioner, Dr Hassan, on 25 May 2009.  Dr Hassan’s notes confirm an attendance on that day and record a complaint of left sided back pain radiating into the left leg.  A CT scan performed on that day revealed a degenerative disc space change at L5/S1 with a posterocentral and left paracentral disc protrusion as well as mild bilateral facet joint degenerative changes.  The disc protrusion contacted the left S1 nerve root within the thecal sac.

  1. Dr Hassan issued a non-WorkCover medical certificate on 25 May 2009 certifying Mr Bakshi to be unfit from 24 May 2009 because of “lumbar back pain”. 

  1. Dr Hassan saw Mr Bakshi again on 27 May 2009 and on this occasion took a history that he had slipped on a wet floor at work at Woolworths Chullora at 11.30pm on 23 May 2009.  He issued a WorkCover certificate certifying Mr Bakshi unfit for work from 23 May to 30 May 2009.

  1. Dr James K Evans, orthopaedic surgeon, examined Mr Bakshi at the request of the insurer on 9 June 2009.  In his report of 16 June 2009, Dr Evans recorded that Mr Bakshi slipped on a wet floor at 11.30pm on 23 May 2009 and developed back pain.  The next day he developed left thigh pain.  He had no previous problems with his back.  On examination, Dr Evans found the worker’s low back movements to be “quite restricted” and straight leg raising to be restricted on the left side.  There was a little weakness of extensor power in the left great toe, consistent with L5 radiculopathy.  Dr Evans concluded that work was a substantial contributing factor and that the injury could have occurred as stated.  In terms of incapacity, Dr Evans concluded that Mr Bakshi was totally unfit for at least six weeks post injury. 

  1. Hicksons wrote to Dr Evans on 2 July 2009 stating that the worker “did not fall at work as alleged at about 11.30 pm” and advising that CCTV footage between 11.15pm and 11.45pm “did not reveal the worker sustaining any fall or reporting the incident.”  They also enclosed a copy of a factual investigation dated 18 June 2009 and asked Dr Evans if his original opinion remained the same. 

  1. Dr Evans responded on 20 July 2009 that “from the information supplied by you” Mr Bakshi did not injure himself at 11.30pm.  He added that he believed what Mr Bakshi had told him because he “said it with great confidence”.  He further stated that disc prolapses could occur after an incident such as the one Mr Bakshi described, but can also occur from minor incidents “in those people in which it seems ready to happen”. 

CCTV evidence

  1. CCTV footage is available from several security cameras at the centre.  Camera 32 is positioned inside the liquor store and shows the counter and part of the shopping centre floor (‘the common area’) immediately outside the liquor store.  This footage runs from 23:19:51 to 23:57:09.  At 23:21:14 a man who I presume to be the worker walks into the store and speaks briefly with the shop assistant (presumably Mr Bubnij).  Whilst speaking with the shop assistant, the worker bends and touches his left leg and buttock with his left hand.  The worker is seen rubbing his left buttock with his left hand on several occasions.  The worker leaves the liquor store at 23:25 and walks into the common area.  The balance of the CCTV (until 23:57) discloses no relevant activities and, in particular, discloses no activities by cleaners.  The worker is seen to be walking in the common area at 23:28 and again at 23:30:40.  On each occasion he is seen to walk with an ambling or casual gait.  The worker is seen again at 23:40:28, 23:42:20, 23:43:35, 23:48:47, 23:54:10, and at 23:56:24.  At 23:56:38, the worker is seen to flex his left leg in the common area immediately outside the liquor store.

  1. CCTV footage from camera 12 runs from 23:24:46 until 23:59:07.  Camera 12 is mounted inside Woolworths and shows one of the checkout counters and part of the common area immediately outside Woolworths.  The worker is seen walking in the common area at 23:25:07, 23:27:40, 23:29:01, and at 23:30:40.  At 23:40:30 one of the roller doors at the entrance to Woolworths closes and the worker is seen walking past the entrance.  The worker is seen to walk by again at 23:43:50, 23:48:49, 23:53:34, and at 23:56:20.  At no stage are any cleaners observed. 

  1. Camera 14 is a camera inside Woolworths.  It displays several of the checkout counters but none of the common area.  The footage on this camera runs from 23:24:52 until 23:58:13.  The worker is seen walking through one of the checkouts into Woolworths at 23:46:55 and again at 23:50:45 and at 23:56:58.  At no stage are any cleaners in view. 

  1. Camera 33 is another camera in the liquor store.  CCTV from this camera runs from 23:24:51 to 23:58:16.  Though the view is mostly of the interior of the liquor store, a small part of the common area can be seen through the doors at the front of the store.  From time to time the worker can be seen patrolling in the common area, but as with the view from camera 32, no cleaners are observed.

Mr Bakshi’s statement in reply

  1. With the assistance of his solicitor, Mr Bakshi prepared a statement on 13 August 2009 responding to Mr Phillips’ statement of 9 June 2009.  Mr Bakshi conceded that he purchased a carton of coke from Woolworths during his shift on the evening of 23 May 2009 and that he should not have done so.  He added that that purchase “must have been just after I had slipped and hurt my back and leg as I immediately told Miron, the man that worked in Woolworths Liquor”.  He accepted that he did not say that he had injured himself when he “called in” to his employer’s office on Sunday 24 May 2009.  He did not think it was anything serious and did not say anything at that point.  He was not scheduled to work again until Wednesday 27 May 2009. 

  1. Mr Bakshi stated that the “Wilson Activity Log” was kept on the counter in the liquor store.  As part of his duties he was required to report in the log every hour or so.  The log records his activities during his shift.  He stated that all of the entries for 23 May 2009 were in his handwriting.  He may have used different pens, as he used the pens available on the counter when he made the record. 

  1. The cleaners who cleaned the floors on 23 May 2009 were the cleaners for Westfield, “not the cleaner for Woolworths”.  The incident did not occur on Woolworths’ premises, but occurred just outside counter number seven “on the floor of the Centre Management.”

  1. Mr Bakshi had not been provided with a copy of the CCTV footage referred to by Mr Phillips.  He had noticed that the Woolworths’ security camera was “about fifteen (15) minutes delayed from real time”.  He was not sure if the Woolworths’ security camera covered the area where he fell. 

THE ARBITRATOR’S REASONS

  1. In a carefully prepared Statement of Reasons for Decision (‘Reasons’) the Arbitrator reviewed most of the evidence and concluded that he was unable to accept Mr Bakshi’s version of the events on the evening of 23 May 2009.  In particular, he noted:

(a)     the video recorded Mr Bakshi rubbing his left leg from 23:22:09, before he said he slipped between 23:30 and 23:45.  Any problem with his leg could not have resulted from a slip moments before 23:22:09 near checkout register 7 because the video recorded Mr Bakshi returning to the liquor store (at 23:21:13) from a different part of the shopping centre (Reasons at [35]);

(b)     Mr Bubnij’s statement made no mention of the worker having reported that he had slipped.  If Mr Bakshi had reported his injury to Mr Bubnij, as he claimed, that important detail would be expected to have been included in Mr Bubnij’s statement and an adverse inference was to be drawn from the contents of Mr Bubnij’s statement (Reasons at [40]);

(c)     a fundamental flaw in Mr Bakshi’s case was that he alleged that he reported the incident to Mr Khan, but Mr Khan’s evidence was that he left the premises shortly after 7.30pm.  Mr Khan had no interest in claiming to have left the premises at 7.30pm if he was there at 11.30pm (Reasons at [41]);

(d)     having no reason to disbelieve Mr Khan, the Arbitrator rejected Mr Bakshi’s evidence that he reported the incident to Mr Khan on 23 May 2009.  If Mr Khan was not on duty at 11.30pm, Mr Bakshi had no reason to record an entry in the log book at that time stating that he had reported the incident to Mr Khan and an entry to that effect would have been fraudulent.  At best for Mr Bakshi, he made the entry on the night, but at a time when he had forgotten that Mr Khan was not on duty after 7.30pm (Reasons at [42]);

(e)     Mr Bakshi went to the trouble of “scripting” an exchange between himself and Mr Khan and it was therefore not merely a matter of “faulty recollection” but was “fraught with detailed fabrication of material elements”.  Mr Bakshi was not a credible and truthful witness (Reasons at [44]);

(f)      Mr Bakshi did not report the incident to the employer on 23 May 2009 and made no report of the “slip and back injury incident” when he reported he was unfit on 24 May 2009.  It was only after Mr Bakshi consulted a doctor that the version of a slip on duty materialised.  The absence of a contemporaneous report, or of a report the following day, lent weight to the probability that Mr Bakshi did not sustain an injury as alleged, and

(g)     there were “mutually distractive” versions of whether the floor had been cleaned before midnight on 23 May 2009.  Mr Bakshi failed to satisfy the Arbitrator that he should accept his version of when the floor was cleaned (Reasons [48]).

ISSUES IN DISPUTE

  1. The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)     finding that there was no contemporaneous report of injury;

(b)     assuming that the report in the log book was fraudulent because it would have been unnecessary once the worker reported the injury to Mr Khan;

(c)     in finding that Mr Bubnij’s statement made no mention of the worker having reported to him that he (the worker) had slipped;

(d)     in finding that it was a “fundamental flaw” in the worker’s case that Mr Khan said he was not on duty at the time of the injury;

(e)     failing to appreciate that Mr Bubnij’s evidence went to the issue of whether the floor had been cleaned at 11.00pm (as claimed by the worker) and not after midnight (as claimed by the employer’s witnesses);

(f)      misdirecting himself as to the nature of the CCTV evidence, and

(g)     making a finding on credit that is unsustainable.

SUBMISSIONS, DISCUSSION AND FINDINGS

  1. The worker’s submissions are particularly brief and are essentially encapsulated in the statement of issues in dispute set out at [77] above.

  1. Wilson Security submitted that the Arbitrator’s findings were open to him and disclosed no error.  It made the following additional points:

(a)     the worker carried the onus of proof and did not tender a supplementary statement to rebut Mr Khan’s evidence or require him for cross-examination;

(b)     there was no report of back injury to Mr Bubnij, who, as the liquor sales assistant, did not have any authority to receive a report of injury.  He was merely told of an injury to the left leg;

(c)     Mr Bakshi did not tender any supplementary statement to rebut the evidence of Mr Scott (presumably, Mr Scott Phillips) and did not seek to cross-examine him.  There was no direction for production or notice to produce requiring the production of the original logbook;

(d)     the evidence of Mr Khoshasha and the CCTV footage rebutted Mr Bakshi’s evidence on injury and the alleged mechanism of injury.  Mr Bakshi did not tender any supplementary statement to rebut Mr Khoshasha or seek to cross-examine him, and

(e)     the CCTV footage did not demonstrate cleaning being undertaken prior to midnight.

  1. Rather than dealing with all of the worker’s grounds of appeal, several of which are misguided and demonstrate a fundamental misunderstanding of the evidence and the Arbitrator’s reasons, I will deal only with those issues that are critical to the outcome.

  1. I agree that the Arbitrator erred in stating that there was no contemporaneous report of the incident.  The Arbitrator said that Mr Bubnij’s statement made no mention of Mr Bakshi having slipped.  Mr Bubnij gave two statements.  One dated 8 August 2009 and the other undated, but with an unexplained fax date of “9-11-2002”.  The Arbitrator correctly stated that the faxed document made no reference to any slip.  However, the Arbitrator failed to refer to Mr Bubnij’s statement of 8 August 2009, which substantially corroborated Mr Bakshi’s evidence as to the circumstances of the incident (a slip) and the nature of the pain as a result of the slip (left leg).  This evidence was also corroborated by the CCTV footage which showed Mr Bakshi talking with a person I presume to be Mr Bubnij at about 2321 while touching his left leg and buttocks. 

  1. The employer’s submissions are unpersuasive.  Mr Bubnij’s evidence goes to the critical issues of whether the worker reported the incident on the evening it is said to have occurred and whether it happened as a result of the cleaning activities at the centre that evening leaving the floor wet.  That he did not have authority to receive a report of injury is of no consequence.  To say that he was merely “told” of an injury to the leg and not of an injury to the back was a matter to be considered with all the other evidence.  The Arbitrator did not consider it at all.  It follows that the Arbitrator erred in drawing an adverse inference against Mr Bakshi because of the content of Mr Bubnij’s statement. 

  1. Further, to the extent that the Arbitrator concluded that there was an absence of a contemporaneous report on the evening of 23 May 2009, he did not refer to the Security Incident Report.  On its face, that document seems to have been completed by Mr Bakshi on the evening of the alleged incident.  If that is correct, then there is a virtually contemporaneous written report of injury that is consistent with the Mr Bakshi’s evidence.  The Arbitrator did not refer to that document in his Reasons and neither party has addressed on it, either at the arbitration or on appeal.

  1. These matters require that the matter be re-determined.  However, given the unsatisfactory state of the evidence and submissions, I am unable to conduct that re-determination.  The main evidentiary shortcomings are set out below.

  1. First, the evidence concerning the “logbooks” is unsatisfactory.  There appear to be two documents in evidence described as “logbooks”.  One is headed “Wilson Activity Log” (‘the Activity Log’) and the other appears to be a copy of pages from a notebook.  There is no evidence explaining why there would be two logbooks and questions arise as to when and why they were completed. 

  1. The Activity Log has hourly entries from 20:00 until 24:00 inclusive.  However, there are two entries for 24:00, the first reads “Store closed & off duty”.  After that there is an entry that reads:

“Note: Due to wet floor
I was slipped near a
Checkout No.7 just out
side of the Woolie.” [sic]

  1. It was this entry that prompted Mr Phillips to say that “on the basis of the representations made to me by Mr Bakshi renders that report as being a forgery.”  Mr Bakshi responded that he was offended by this suggestion. 

  1. The copy of the notebook includes entries for 22 and 23 May 2009.  For 23 May, the entries are in chronological order from 20:00 and then at 21:00, 21:30, 22:00, 22:30, 23:00, 23:30 and 24:00.  The entry for 23:30 is in chronological order and appears, as it should, before the final entry at 24:00.  It is the entry at 23:30 upon which the worker relies.  It reads:

“I sliped [sic] just out side of Checkout – No.7 due to wet floor.  I feel pain on my back.  I reported to duty manager Mr Shimim [sic, Mr Shameem Khan] and Mr Miron [sic Mr Miron Bubnij] in liquor shop”

  1. The discrepancies between the Activity Log and the notebook are significant, but have not been properly dealt with in the evidence or the parties’ submissions.  The parties do not appear to have acknowledged that there are two “logbooks”.  Given the issues in dispute in the case, I would have thought that, at the least, the original Activity Log and the original notebook would have been produced and evidence led as to the circumstances in which each was completed.  In his statement of 13 August 2009, Mr Bakshi commented on the Activity Log but made no reference to the notebook.

  1. Second, apart from a number of medical certificates, Mr Bakshi has tendered no medical evidence and, if he were to succeed on liability, it would be difficult to determine quantum. 

  1. Third, contrary to Mr Bakshi’s submission on appeal, whether Mr Khan was at the shopping centre at 11.30pm on 23 May 2009 is of considerable importance to outcome of the case.  It would therefore seem to be appropriate that, at a minimum, a direction for production should be served on his employer requiring production of his wage records or time sheets for 23 May 2009. 

  1. Fourth, in reaching his conclusion, the Arbitrator relied on a detailed analysis of the CCTV footage.  Whilst the CCTV was admitted as late evidence without objection (T2.35-43), as best I can determine, Mr Bakshi has not had an opportunity to view it (see Mr Bakshi’s statement of 13 August 2009) or, if he has viewed it, he has not commented on it.  As this matter has not formed a ground of appeal, I obviously have not based my decision on it.  However, the fact that Mr Bakshi has not seen and/or responded to the CCTV prevents me from re-determining the matter as to do so would result in a clear denial of procedural fairness (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72, at [14]-[18]). The first and most fundamental question that arises is whether the area covered by the CCTV cameras covers the area where Mr Bakshi slipped.

  1. Last, Mr Bakshi has suggested that the CCTV footage was delayed by 15 minutes.  He has called no evidence to support this assertion and, given the importance of the CCTV footage, one would have thought that this was a matter that requires attention.

  1. I should make a final observation about the employer’s submissions on appeal.  It repeatedly drew attention to the fact that Mr Bakshi did not seek to cross-examine certain witnesses and, therefore, the evidence from those witnesses should be accepted.  If that submission were correct, then Mr Bakshi would have to succeed because he was not cross-examined.  The employer’s submissions were unhelpful.  A failure to cross-examine in the Commission (where cross-examination is only allowed with leave) does not mean that the evidence from the witness not cross-examined must be accepted (Quadi v the Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3 [56] to [63]). What is required is an analysis of the “contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy [2003] HCA 22 at [31], (2003) 214 CLR 118).

CONCLUSION

  1. Having conducted a review on the merits, I have determined that the Arbitrator erred in failing to consider two important pieces of evidence, namely Mr Bubnij’s statement of 8 August 2009 and the Security Incident Report.  These errors require that the matter be remitted to a different Arbitrator for re-determination.  As noted above, several matters require attention before the matter can be re-determined and those matters will be the subject of direction by the next Arbitrator. 

  1. Whilst cross-examination is only allowed in the Commission by leave, given the nature of the issues in dispute in the present matter, and the allegation that certain documents are inaccurate, the next Arbitrator may well feel it appropriate to allow cross-examination.

DECISION

  1. The Arbitrator’s determination of 27 November 2009 is revoked and the following order made:

“1.    The matter is remitted to a different Arbitrator for re-determination.

2.Costs of the second arbitration, and of the first arbitration, are to follow the event of the second arbitration.”

COSTS

  1. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

Bill Roche
Deputy President

22 March 2010

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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Gallo v Dawson [1990] HCA 30
Gallo v Dawson [1990] HCA 30
Kioa v West [1985] HCA 81