Divjakoski v Boral Window Systems
[2010] WADC 60
•6 MAY 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVL
LOCATION: PERTH
CITATION: DIVJAKOSKI -v- BORAL WINDOW SYSTEMS [2010] WADC 60
CORAM: FENBURY DCJ
HEARD: 26-30 OCTOBER & 2-5 NOVEMBER 2009 & 35 MARCH 2010
DELIVERED : 6 MAY 2010
FILE NO/S: CIV 961 of 2003
BETWEEN: DRAGAN DIVJAKOSKI
Plaintiff
AND
BORAL WINDOW SYSTEMS
Defendant
Catchwords:
Negligence - Liability of employer - Damages - Personal injury - Turns on own facts
Legislation:
Nil
Result:
Judgment for defendant
Representation:
Counsel:
Plaintiff: Dr P R MacMillan
Defendant: Mr G R Hancy
Solicitors:
Plaintiff: S C Nigam & Co
Defendant: Phillips Fox
Case(s) referred to in judgment(s):
Hampton Court Ltd v Crooks (1957) 97 CLR 367
Jasmina Investments Pty Ltd v Vlahos [2009] WASCA 190
FENBURY DCJ:
The claim
Mr Dragan Divjakoski claims that he was injured at work when he slipped and fell on a wet concrete floor at the end of his shift at about 11.30 pm on 2 March 2000. He was working at a factory in Belmont.
At the time Mr Divjakoski was employed by a labour hire company called Integrated Workforce Ltd which had placed him at the factory on contract with Boral Window Systems.
Mr Divjakoski claims that he has lost a significant amount of earning capacity and income as a result of the injuries he suffered in that fall.
Boral, who runs the factory, in response, say that Mr Divjakoski did not slip and fall, or if he did, he did not do so in the way he says and in any case Boral was not negligent. Boral says that if it was decided that Mr Divjakoski did slip and fall, he did not suffer any significant injury. Boral also say that Mr Divjakoski had lost a significant amount of his earning capacity previously and he had already been compensated for it, and if he had any incapacity now, it was caused by an earlier injury. Boral also say that Mr Divjakoski has considerable retained working capacity at the present time.
Background
Mr Divjakoski previously made a claim for damages for personal injury suffered in the workplace. He strained his back on 16 February 1995 and injured his knee when he slipped on some stairs on 29 May that year. Mr Divjakoski settled those claims for damages in the one action on 19 November 1998 for the sum of $190,000 exclusive of payments and allowances made pursuant to the Workers' Compensation and Rehabilitation Act 1981 received together with costs fixed at $20,000 inclusive of disbursements (Exhibit 25).
There is dispute as to how much Mr Divjakoski actually received. He said that he only received about $90,000. He produced no supportive documentary or other evidence. It is difficult to accept he received so little and without apparent complaint.
Shortly after that claim was settled in November 1998 Mr Divjakoski applied to the Government Employees Superannuation Board for payment of his superannuation entitlements on the basis of permanent partial disability. His application was supported by medical opinion in January 1999 that due to his knee and back injury he was unemployable and totally and permanently disabled according to the criteria of the GESB.
On 10 March 1999 Mr Divjakoski received $35,098.51 from the GESB which he accepted as being a part of his superannuation entitlement on the basis of partial but permanent disability.
In August 1999 Mr Divjakoski applied to Centrelink for a disability pension on the basis of inability to work due to his knee and back injury.
By February 2000 he was back in the workforce.
The plaintiff
Period prior to 2 March 2000
A useful chronology was submitted by Mr Divjakoski's counsel at the beginning of the trial (Exhibit 1). Mr Divjakoski gave evidence in accordance with its contents.
Mr Divjakoski was born in Macedonia on 14 September 1961. He completed high school and a Diploma in Agriculture there by June 1982. He initially worked for his parents on the family farm for a period and then saw five years of military service. He married in November 1985. He and his wife migrated to Australia arriving in Sydney in February 1988.
Mr Divjakoski was initially employed as a bricklayer's offsider. When he moved to Perth in August he was employed by the Water Authority of Western Australia as a full‑time labourer. He also obtained other part time and casual work as a cleaner and a process worker.
During those years there seems no doubt Mr Divjakoski was a hard worker, keen to establish himself and his family in a new country.
In May 1989 Mr Divjakoski and his wife bought a two bedroom unit in Hector Street, Osborne Park for $56,000. They had children in June 1989 and October 1990. In May 1993 they purchased a bigger home in Marangaroo for $102,000. They rented Hector Street.
Mr Divjakoski obtained further part time work as a cleaner in 1994 and in that year he registered a business known as Balcan Cleaning Services. However, the business never operated in any significant way, mainly because, according to Mr Divjakoski, he was illiterate in English.
Mr Divjakoski suffered a strain injury to his back in February 1995. Later, in May, he injured his knee when he slipped on oil whilst climbing some stairs. He commenced an action for damages which was settled as I have indicated on 19 November 1998.
Mr Divjakoski said that he did not work at all from about August 1995 until the beginning of 2000. He received Centrelink payments.
During that five year period Mr Divjakoski received several sums of money that I have already mentioned, namely, the WAWA redundancy of about $13,000 in December 1995, the damages settlement of $190,000 in December 1998 and the GESB payment of $35,000 in March 1999.
Some of these funds seem to have been expended by Mr Divjakoski on real estate activities.
In the middle of March 1999 Mr Divjakoski returned to his homeland in Macedonia with his family for four months, returning to Australia in mid‑July. He said that he brought $30,000 back from Macedonia which was a gift from his parents earmarked for his two children.
On 25 July 1999, shortly after his arrival back in Australia, Mr Divjakoski purchased a half share in a block of vacant land in Lancelin in partnership with a family friend for $54,000. This property was bought for the children.
On regaining capacity and returning to work in 2000
During late 1999 and early 2000 Mr Divjakoski said that his medical condition vastly improved. He said he had extensive treatment on his knee with physiotherapy, hydrotherapy and cortisone injections. He said he obtained advice from his general practitioner about knee exercises. His evidence was that, basically, the knee symptoms he had endured for the previous four years since his fall at work in 1995 completely disappeared. This enabled him to contemplate full‑time light duties.
Mr Divjakoski started looking for work and on 20 January 2000 approached Integrated Workforce which was a labour hire company. Whilst waiting in the reception area, and because of his illiteracy, he said that he approached a young Malaysian man who was there and asked him for help to fill out the forms.
Mr Divjakoski's application to Integrated received a favourable assessment. His attitude was described as "very good – very keen".
Mr Divjakoski commenced employment with Boral Window Systems, the defendant, on 28 February 2000 after a short number of other brief placements. He described his duties as stacking and packing aluminium extrusions of about 6 metres in length. Two people were required for the job.
The alleged fall
On the evening of 2 March 2000, nearing the end of his 2.30 pm to 11 pm shift, Mr Divjakoski said that he was instructed to get trolleys from the pre‑treatment area of the factory and take them to the stacking area for the next morning's shift. He said that he was wearing non‑slip safety boots. He said that he saw water on the floor near the shower area in a walkway. He stated that he walked through it very carefully but that, nevertheless, his left leg slipped and he somehow became airborne and fell back feeling pain in his left shoulder as he broke his fall and then he quickly turned somehow to the right and hit his right elbow on a nearby parapet wall. (T51‑54)
Mr Divjakoski said that he felt pain in his left shoulder and right elbow. He went to see and spoke to a man named Jordan who was the factory's amateur medical officer. Jordan sprayed his right elbow with antiseptic spray and gave him a bandaid for an abrasion. Mr Divjakoski said he asked about recording the event in a book but it was too late in the shift and, according to him, the book had been locked away.
There is no doubt Mr Divjakoski did indeed attend upon the man named Jordan who on inspection of his right elbow saw an abrasion, sprayed it with an anaesthetic, or antiseptic, and then applied a bandaid.
Mr Divjakoski said that he declined to make a claim for workers' compensation initially but his symptoms deteriorated. He said that Boral knew of his fall and made changes by quickly engaging a plumber to unblock the shower drain that had caused the flooding that resulted in water on the walkway.
There is no doubt that a plumber was called by an unknown person on the following day and cleared the blocked drain in a shower.
On 3 March Mr Divjakoski said he telephoned Integrated Workforce and reported the accident. He attended upon his general practitioner and attended at his shift for that day. Following the deterioration of his symptoms he did not return to work.
On 6 March 2000, according to Mr Divjakoski, he was advised by Integrated Workforce that they no longer had any work for him. He signed an accident report form on 8 March which is Exhibit 7. Although he said that he did complain of injuries the accident report form states that he reported no injuries.
Thereafter Mr Divjakoski commenced to see his general practitioner on a regular basis. He was referred for a variety of treatments to practitioners of various disciplines. The chronology of Mr Divjakoski's extensive medical treatment commences at p 5 of Exhibit 1 and comprises thereafter some 13 pages. Over the next nine years Mr Divjakoski underwent 20 corticosteroidal right elbow injections under local anaesthetic and one with respect to his wrist. The injections were administered by Mr Divjakoski's general practitioner, Dr Cheung. He gave Mr Divjakoski these injections because, according to him, Mr Divjakoski "asked" for them. Other medical witnesses were astonished at how many injections Mr Divjakoski had, one of them suggesting that the normal procedure would have been to suggest surgery following the failure of earlier injections to provide long term relief. In addition to this Mr Divjakoski had one bone scan, six ultrasound investigations, one electromyography, one or two MRI scans, and one acromioplasty.
According to Mr Divjakoski he did not work at all during the years 2000 to 2009 and his only source of income was payments from Centrelink. He said, however, his wife continued to bring income into the house throughout, the majority of time working as a factory process worker for Ingham Chickens.
Mr Divjakoski said that he inspected the scene of his alleged fall in 2007 and he is convinced the area has been treated with non‑slip substances since his accident in 2000.
This is strenuously denied by Boral who called evidence that relevant areas have not been treated with any non‑slip substance since the accident.
I have no reason to disbelieve the witnesses called on behalf of Boral and I accept their evidence. I think Mr Divjakoski is mistaken about that.
The cross‑examination of the plaintiff
Counsel for Boral challenged Mr Divjakoski's credibility in respect of his evidence concerning all issues in the case. Because of the pre‑eminence of the issue of Mr Divjakoski's credibility, it is reasonable to deal with it early in these reasons.
Whilst undergoing extensive medical treatment during these years, and being unemployed, Mr Divjakoski continued to be active in his real estate ventures.
For most of this activity after 2000, Mr Divjakoski employed the services of a finance broker named Bill O'Brien. According to Mr Divjakoski, Mr O'Brien prepared documentation for him from time to time seeking loans from Rams Home Loans.
In cross‑examination Mr Divjakoski's real estate activity and the documentation related thereto during the relevant time was given close attention by counsel particularly in relation to two aspects namely:
•to support Boral's assertion that Mr Divjakoski got so heavily into debt and had such an excess of monthly mortgage payments over income that he must have been earning income elsewhere that he had failed to reveal;
•to show that documentation relating to his loan applications was dishonest and misleading such that it went to his credit as a witness in the case.
Apart from the analysis of the loan applications, the defence also cross‑examined Mr Divjakoski on two other categories, namely:
•video surveillance footage of Mr Divjakoski commencing in about June 2000 and continuing into 2001;
•the documentation completed by Mr Divjakoski or on his behalf for Integrated Workforce in order to obtain his employment with the defendant in early 2000.
In essence the defence case set out to show that Mr Divjakoski had been dishonest to such an extent as should result in the court rejecting his evidence and thus his claim.
Surveillance
I shall deal first with the surveillance material which was said to cover two phases; the period after 2 March 2000 but being the period before Mr Divjakoski knew that he was being watched and then the period after he was told he was being watched.
I have watched the numerous DVDs of the surveillance material, as invited, in my chambers in my own time.
Much of the footage is of Mr Divjakoski walking about outside his house, going to the shops, walking along the streets, walking to and from supermarkets and the like. He occasionally carries shopping in one or other or both hands. Outside his home on occasions he assists in landscaping by moving a small number of bricks by hand, sometimes a brick in each hand, sometimes three or four bricks carried with two hands together.
Occasionally he vigorously pushes a broom with both arms interchangeable in position and without difficulty, sweeping.
On at least one occasion Mr Divjakoski was seen to be engaging in social kicking of a soccer ball. This involved him, sometimes, moving quickly to retrieve a ball and then to kick it.
On no occasions in any of the surveillance material that I observed did Mr Divjakoski display any ability to do heavy work but he seemed to me to demonstrate ability to carry out light duties and I think that light duties are within his capacity, or must be to some extent. In much of the footage Mr Divjakoski moved about normally and displayed what seemed to me, as an amateur, to be a normal range of movement.
Of course in spite of the activities that he revealed an ability to do, such as I have described, it must be said that they demand less effort than an eight hour day, five day week light duties job would require. However, the surveillance footage shows that for short hours, Mr Divjakoski does have a capacity for light work.
Mr Divjakoski says he cannot do light work for a normal working week of 48 hours. He was the evidential source of support for that contention. The surveillance provides cause for suspicion, I think, about whether Mr Divjakoski's assertion is true and accurate.
In isolation the surveillance material does not deal a mortal blow to Mr Divjakoski's credit, but it damages it and of course it is not in isolation.
Mr Divjakoski said that he demonstrated capacity when he did because he had achieved symptomatic relief from his elbow pain through corticosteroidal injections. These injections, according to Mr Divjakoski, provided relief for up to four months.
The evidence is that Mr Divjakoski had an injection by reference to Exhibit 1, the chronology, on 20 July 2000. His next injection was 3 August 2001 and thereafter he had injections at roughly four monthly intervals. Surveillance commenced on 8 June 2000. There was obviously some degree of surveillance before any injection was received but no noticeable improvement in the first surveillance film following the first injection.
Integrated Workforce
As I mentioned, Mr Divjakoski said that he obtained assistance from a young Malaysian man in filling out the form required by Integrated Workforce. This form, called a "Registration Pack" was Exhibit 3 and was dated 20 January 2000. Obviously Mr Divjakoski was seeking employment, in other words, seeking to exercise his retained working capacity for light duties that he says he regained following his somewhat sudden recovery during late 1999 from the residual disabilities of his 1995 work accidents.
Mr Divjakoski said that much of what he told the Malaysian man was not recorded by him, and also that either the Malaysian man or staff at Integrated Workforce had inserted information in his form which was not in accordance with what Mr Divjakoski had said. Mr Divjakoski admitted he had completed the personal details at the top of p 2 of the document but not elsewhere although he did not dispute that the details on that page were accurate. In passing it was noted by counsel, and plain to see, that the capital letter "W" where it appeared on the document was written quite distinctively.
Page 3 of the document was controversial. On this page Mr Divjakoski's employment history was detailed. Mr Divjakoski said that he did not write anything on this page except for his signature, and that the Malaysian man had completed the page. He said he did not provide this information. Again the handwriting of the capital letter "W" was distinctive but it was the fourth listed occasion of prior employment of Mr Divjakoski that raised particular concern.
This entry referred to Mr Divjakoski having been employed by a company called Johnston Cleaning Company of Rockdale in New South Wales, from 18 March 1996 to 15 November 1999. The document describes Mr Divjakoski's duties at Johnston Cleaning as having been those of a "cleaner". Mr Divjakoski said this entry was false, and not written by him, and that he had never worked at Johnston Cleaning at all in Rockdale or anywhere else during this period. He asserted that the information was false in every way.
Counsel for Boral in cross‑examination pressed the possibility that it was in fact true and that, therefore, Mr Divjakoski's other assertions about not having worked at all between 1995 and 1999 were false. Mr Divjakoski rejected this suggestion. He theorised that the Malaysian man who helped him fill out the form must have inserted this false information for reasons best known to himself. Mr Divjakoski said that he is illiterate in English and that he did not, and could not, read what the young man had written, and furthermore he did not tell the young man what to write on that page. He said that he did not know that the document contained false information but he agreed that it was false.
Page 4 of the document indicated the sorts of work in which Mr Divjakoski had experience and which he was able to do and also work in which he had no experience. Mr Divjakoski did not dispute the truth of any of those entries.
Page 6 of Exhibit 3 was a health questionnaire. In answer to the question whether he had ever had a workers' compensation claim the word "no" was written, and of course this is untrue because Mr Divjakoski had had a previous workers' compensation claim.
In answer to the question of whether Mr Divjakoski had ever suffered a serious injury the answer "no" was written. On p 7 the fact of Mr Divjakoski having had a knee reconstruction to his left knee was disclosed.
In other words Mr Divjakoski said in essence that the document was written by another for his benefit but that, unbeknown to him, it contained false information.
In relation to the address of Johnston Cleaning Services on p 3 being at Rockdale in New South Wales, it is notable that, according to Mr Divjakoski's wife, she and Mr Divjakoski had lived at Rockdale, New South Wales for a time. She said they stayed there shortly after arriving in Australia in 1988. (T663)
In the context of Mr Divjakoski saying this document and this entry was false and he was unaware of its falsity, it is curious that the address of Johnston Cleaning Services referred to a suburb which was a suburb which was in fact known to Mr Divjakoski and in which he had in fact resided 12 years earlier.
The loan applications
As was mentioned, in respect of his real estate investing ventures, Mr Divjakoski employed the services of finance broker Bill O'Brien to prepare documentation seeking loans from Rams Home Loans and later Macquarie Bank. Generally, Mr Divjakoski admitted signing relevant documents but asserted he did not/could not read them. He agreed they contained false information but said he did not know this at the time of signing, nor submission, of any of the documents. Clearly Mr Divjakoski stood to benefit by the provision of the false information in the document.
There are eight documents that fit the description of this category. In chronological order they are:
Exhibit 58Westpac loan application, minor dishonesty about work history dated 20 February 2003.
Exhibit 13Rams Home Loan document containing false work history and false income alleged to be $20,000 seeking a loan of $240,000 dated 3 December 2004.
Exhibit 30Rams Home Loan document containing false history and false income alleged to be $75,000 dated 27 April 2006.
Exhibit 31Typed letter signed by plaintiff containing false explanation as to income increase query from lender ($20,000 increased to $75,000 – see Exhibit 13 and Exhibit 30) dated 3 May 2006.
Exhibit 16Rams Home Loan application for $450,000, false employment history and income stated to be $95,000 dated 11 June 2007.
Exhibit 17Rams Home Loan application for $250,000, false employment history and income stated to be $125,000 dated 25 November 2007.
Exhibit 19Business Registration Form stating false work and false income details dated 29 November 2007.
Exhibit 20Macquarie Bank loan application showing false work and false income stated to be $185,000 per year dated 10 January 2008.
Mr Divjakoski said that he signed various forms applying for loans from time to time but he did not complete any of them. He said he signed them in blank, save for the first occasion when a form was filled out in his presence by Mr O'Brien. However he said he was unable to read what was written and did not provide the information. After that initial occasion on all subsequent occasions Mr Divjakoski said that Mr O'Brien merely left a blank form in Mr Divjakoski's meter box which he and his wife then signed in blank and returned to Mr O'Brien, unaware of the contents. On those occasions when he saw completed forms Mr Divjakoski said he was unable to read them in any event. This was because he was illiterate in English.
Mr Divjakoski said that on no occasion did he give Mr Bill O'Brien false information and that the false information included in a number of the forms was put there by Mr O'Brien who, being a finance broker, wished for the application to succeed so as to gain his commission.
Exhibit 16 was a loan application to Rams Home Loans dated 11 June 2007 signed by both Mr Divjakoski and his wife. In the document the occupation of each of them is described as a "contract cleaner". The income of both Mr Divjakoski and his wife was expressed to be $95,000 and $75,000 respectively.
Mr Divjakoski agreed that this information was false. He said that he did not instruct Mr O'Brien to put this information in the form and he did not know that Mr O'Brien had done so.
Exhibit 17 was a similar document dated 20 November 2007. Again it described the occupations of Mr and Mrs Divjakoski as contract cleaners although on this occasion the income of Mr Divjakoski was expressed to be $125,000 and that of his wife $75,000.
Again Mr Divjakoski said the information was false, that he did not provide it to Mr O'Brien, and did not know that Mr O'Brien had included it in the form.
The second application was unsuccessful and apparently funds were then sought from Macquarie Bank who required the obtaining of an ABN number which was obtained by completion of a form which was Exhibit 19 which described a trading entity known as "Balcan Cleaning Services" which had an estimated annual turnover range of between $50,000 and $99,999. This registration of a business name was a device, apparently, to satisfy the requirements of Macquarie Bank.
By reference to Exhibit 20 which is the Macquarie Bank mortgage document dated 10 January 2008 it can be seen that the total assets of Mr and Mrs Divjakoski were some $1,139,000 and total liabilities $940,000. The monthly income was described as $1,517 yet the monthly payments were $4,346.
At all material times Mr Divjakoski was on a disability pension which provided him with $160 per fortnight according to his evidence. This was reduced for a brief period but reinstated in July 2008. In September 2008 Mr Divjakoski sold his Marangaroo home and the proceeds of sale were used to reduce his debt.
Observations/findings – loan application
In relation to the loan application documentation Mr Divjakoski admitted that documents contained false information but asserted they were completed by another, unbeknown to him although for his benefit, but that further, with respect to the loan applications, the falsity was also to the benefit of a third party namely the finance broker.
Mr Divjakoski's evidence was that apart from the first meeting he had had with Bill O'Brien, that he always signed the loan applications in blank as did his wife. He said he never saw them in their completed state. He said he had no idea that his occupation was stated as a self‑employed cleaner or that his income was as alleged. These statements were untrue. But he said they were not made by him. They were made by Mr O'Brien the finance broker who, as I indicated, allegedly did so in order to gain his commission on success of the application.
Of course, in isolation, perhaps it is not implausible that a finance broker in those years may have behaved dishonestly in this way. However, again, I cannot look at this matter in isolation because it is to be considered in the light of all the circumstances of the case.
Mr Divjakoski's case with respect to the false loan applications was the same as with respect to the false Integrated Workforce employment application. The false statements were made by others unbeknown to him. He benefited but was unaware of and not a party to any falsity or dishonesty.
The necessary corollary that is hard to digest is that either Mr Divjakoski thought that his true financial situation was being presented in the loan application and he believed the application was worthwhile and had a chance to succeed. Alternatively he was oblivious, perhaps wilfully blind, to what was said in the application but suspected that it must be false otherwise it would not succeed, and as to that he made no inquiry.
In my view Mr Divjakoski could not possibly have thought he had a chance of increasing his loan given his debt was $940,000 on his wife's chicken factory wages and on his Centrelink payment.
It seems to me that at the very least Mr Divjakoski must have known false information was being inserted but did not know or want to know the details, perhaps he did not care, so long as he got the loan that he sought (which he did on most occasions). Alternatively he knowingly gave O'Brien false information. In other words it seems to me at the least Mr Divjakoski was aware of falsity but was prepared to benefit and was thereby significantly dishonest.
Whether it was Mr O'Brien's idea or not, it is inconceivable that Mr Divjakoski was unaware of the falsity. Mr O'Brien was not called. Perhaps it was his idea. It does not matter in my view.
In my view Mr Divjakoski's explanations for the false statements made on his Integrated form and the loan applications and his assertions he was ignorant of the presence of those false statements are unbelievable. (T18)
Many of these documents are quite similar but I shall make special mention of Exhibit 31. This letter which was admittedly signed by the plaintiff and his wife, but typed, is brief and in the following terms:
"To whom it may concern
3 May 2006
This letter is to confirm why my income has increased as it has been stated. The reason has been that 15 months ago my wife and I were successfully gaining cleaning contracts and since then additional contracts have been added. The income stated as an estimate of 2005/06 will increase further in 2006/07.
I hope this is a sufficient explanation why my income has increased.
Yours sincerely"
As I have said Exhibit 31 was prepared and sent to Rams Home Loans to explain the difference between the income asserted in the Rams Home Loan of 3 December 2004 (Exhibit 13) and a similar application made to Rams Home Loans on 27 April 2006 where the income had more than tripled.
The plaintiff denied authorship. From the language and the perfect spelling in the document it is unlikely the plaintiff composed or typed it. However the plaintiff denied any knowledge of the contents and asserted he did not/could not read it.
I disbelieve the plaintiff and conclude he knew what the document said and what it was intended to achieve. I think the provision of this document to the intended lender was a significant piece of dishonesty.
Apart from the dubious explanations given by Mr Divjakoski for the presence of false information in the above series of documents I also have concerns about his evidence that he is illiterate in English and that he did not complete various documents that were put to him apart from the Integrated form and the loan applications. Mr Divjakoski did not on any occasion agree that these other documents contained his writing other than his signature.
Documents with disputed handwriting/authorship/Mr Divjakoski literacy in English
There were at least nine documents tendered that the defendant claimed were written, completed and signed by the plaintiff but of which the plaintiff denied authorship save for signature.
These documents were Exhibits 3, 6, 13, 26, 27, 56, 58, 61 and 62.
Some of these documents, according to the defendant, contained false information namely Exhibits 3, 13 and 62.
A comparison of the handwritings in each of the nine documents reveals that certain letters and numerals are very similar.
The capital letter "D", especially when it begins a word is nearly always written with the arc overshooting the vertical above and below. This is so not only in the capital initials of the plaintiff's name but also in the word "drive" and "driver". Indeed the name of the plaintiff written in capitals (which he denied had been written by him) and the address of the plaintiff being 73 Marangaroo Drive – Marangaroo, is very similarly written in all documents.
The letter "W", upon which defence counsel placed much emphasis, is unusually written. It generally comprises two "V"s overlapping on their inside arms. The "W" of "Way" in 51 Appian Way in Exhibit 3, the "W" in "water tank", "wall", "width" in Exhibit 6, the "W" in "Water Authority of WA" in Exhibit 26, the "W" in "Wanneroo" in Exhibit 26, the "W" in "West Australia", Exhibit 58 and "BankWest" "Warwick" in Exhibit 61 are all similar.
The numeral "7" in all documents almost invariably is in the European style with a horizontal stroke through the centre.
The numeral "4" is nearly always missing its eastern horizontal arm past the vertical.
Observations on disputed handwriting
The frequency of the appearance of the unusual and distinctive "W", to which I earlier referred and of the points of similarity I have mentioned, strongly suggests to me that the same person completed a large number of the handwritten documents in the case.
Mr Divjakoski said that his daughter assisted him however her handwriting, and in particular her "W" was different to the one appearing in relevant papers (see Exhibit 63, written by her in court). I had a strong suspicion Mr Divjakoski's daughter, as daughters perhaps might do, went out of her way to assist her father and I do not hold that against her. But the suggestion that it was she who wrote all of the documents where the unusual "W" appears is unlikely to be true.
Be that as it may it was notable how vigorously Mr Divjakoski denied authorship of a large number of documents that I strongly suspect he indeed wrote. In my view he stuck to this response because of concern that his explanation for not seeing the falsity in other documents based upon illiteracy might not be accepted, or that that assertion might be damaged thereby.
Documents with disputed handwriting containing false information
The most significant document in the case amongst this group is Exhibit 3, the Integrated Workforce package. This is the document that was completed prior to Mr Divjakoski obtaining work with the defendant. This is the document Mr Divjakoski claims, save for the personal information on the second page (T31), was not filled out by him but by the helpful Malaysian young man waiting in the reception area of Integrated at the time.
This "Good Samaritan" allegedly inserted false information about Mr Divjakoski's work history unbeknown to Mr Divjakoski but to his benefit.
Page 3 of Exhibit 3, sets out four places of previous employment said to be those of Mr Divjakoski.
The handwriting is similar to the rest of the handwriting and there is the consistent unusual "W" in the words "W.A." and "New South Wales". Mr Divjakoski said the reference to Johnston Cleaning in Rockdale in New South Wales between 1996 to 1999 is false. When asked whether he had written it he emphatically replied "absolutely not". (T34) He said he had never worked for that company and never said that he did.
Exhibit 13 contains an assertion by way of a circling of an option to suggest Mr Divjakoski was self‑employed for four years prior to 3 December 2004. He says this was false and that he has not worked at all during that period. Furthermore, it asserts that his gross salary during that period was $20,000 which is also false.
Exhibit 62 is a brief letter written by Mr Divjakoski in my view and it displays some literacy by itself.
Findings on these documents
In my view it is highly likely that all of these documents were completed by Mr Divjakoski, if not in their entirety, in the main. There are obvious places where somebody else has recorded written comments but generally speaking these documents were all written by the same person and it seems to me that that person must have been Mr Divjakoski. He suggested his wife or daughter assisted. I do not think it likely that those two people or either of them were with Mr Divjakoski on every occasion. Of course, whilst in the reception area of Integrated Workforce, there was no suggestion whatsoever of Mr Divjakoski's wife being there. Indeed he attributes the handwriting to another person.
However, returning to Exhibit 3, not only do I consider that Mr Divjakoski's denial of authorship is a false denial, there is false information contained in it. That is likely to be why he denies authorship. I have already mentioned that the reference in the fourth alleged prior employment position being Johnston Cleaning in the suburb of Rockdale in New South Wales is a reference to a suburb that Mr Divjakoski's wife nominated in her evidence as being where they had resided for a time in 1988. It would be astonishing if the Malaysian stranger coincidentally, and falsely, nominated a New South Wales suburb by pure chance where Mr Divjakoski and his wife had in fact resided 12 years previously.
I do not accept Mr Divjakoski evidence that he did not fill out these documents. In my view at least in relation to Exhibit 3 and also, Exhibit 13, Mr Divjakoski entered false information in these documents or, at least, provided that false information.
English literacy
The plaintiff has been in Australia for more than 20 years. Although his English is heavily accented he was quite articulate and displayed a good vocabulary when he gave his evidence. He revealed considerable familiarity with medical terms and procedures, with medical issues and with the process of making his claim. He also had a degree of sophistication in a business sense arising from his heavy investing in real estate.
The plaintiff seemed to me to be intelligent, shrewd, and "switched on". Far too much so, in my view, to sign important documents in blank or when he was ignorant of their content.
Far too much so, given the length of time he has been in this country, and given his articulateness and vocabulary, for the court to accept he is totally illiterate in English.
The evidence of Mrs Percy from IPASA (Injured Persons Action & Support Association Inc) was that Mr Divjakoski could take telephone messages and write out receipts and the like. He spoke English well although with a heavy accent. His English improved the longer he was in the witness box. He displayed, in my view, a vocabulary of such extent and he has been in Australia for such a lengthy period of time that I think he is far more literate in English than he says.
In my opinion the plaintiff has some literacy in English. He can write messages, receipts and notes to people at the very least. He must have comparable reading ability. He has exaggerated, if not feigned illiteracy so as not to have to explain or be fixed with responsibility for the inclusion of false information in various documents.
Conclusions
The combined effect of my findings about Mr Divjakoski's ability apparent on the surveillance tapes when compared with his claims of incapacity, together with what might be described as his astonishing recovery of function in 1999 and the implications of my findings about his knowledge of the false documents to which I have made reference and my finding that he lied about authorship and the provision of false information in those documents all together, cause me to conclude that Mr Divjakoski's testimony on any controversial issue should not be accepted unless it is corroborated.
Mr Divjakoski's financial position at relevant times
My view about Mr Divjakoski's credibility and conclusion that he has engaged in significant dishonesty is further fortified by having regard to his personal financial imperatives.
It is notable that at relevant times Mr Divjakoski had significant debt and that his debt was more than he could service from his income. In my view he had a compelling need to obtain funds. His investment strategy of borrowing more than he needed and using the surplus to pay the early monthly mortgage payments, speculating on the capital gain, was always going to be fraught in my view.
It is argued on behalf of Boral that Mr Divjakoski was only able to meet his loan payments because he was in fact working, and receiving income from cleaning. As to that, other than false statements to that effect made from time to time and the registration of the business name, and the brief acquisition of the ABN, there was no evidence of Mr Divjakoski actually working as a cleaner and earning income. The fact that he bought himself a utility is equivocal.
If Mr Divjakoski was working as a cleaner, of course his claim for economic loss and loss of capacity would be unlikely to be allowed. Thus it is that Mr Divjakoski says the statements made (either by him or according to him on his behalf) are false. Be all that as it may, Mr Divjakoski needed a cash injection in a situation where he really could not expect further finance. He could not meet those payments on the family income that he had and he did not want to sell any property.
In my view Mr Divjakoski had a motive to abuse the compensation system and try and get cash, over and above a motive that might be described as the base desire for money for lifestyle purposes or for greed or to get income without working.
Of course this is not a criminal case and I realise that the task is to assess whether I accept Mr Divjakoski as a truthful and reliable witness in respect of the important matters in his claim alleging liability and in respect of matters where he has the burden of proof. I am not asked to speculate on motive. Nevertheless the existence of a motive in this case seems to me to be worth mentioning.
As I think I have already observed, Mr Divjakoski was familiar with the process having already made and succeeded in a claim for damages for injury in the workplace. He displayed his familiarity with the process in his evidence.
It is obvious that Mr Divjakoski underwent time consuming and lengthy contact with the medical profession over the years. He had a large number of injections which I understand can be painful. I think it is conceivable that a man desperate for money, as I think Mr Divjakoski was, would subject himself to repeated and painful medical treatments if he thought there was a "payout" at the end. In summary I think that Mr Divjakoski was quite capable of capitalising on a non‑negligent workplace incident cloaking it as required to enable himself to make a claim.
Did Mr Divjakoski slip and fall on a wet floor at work?
Mr Divjakoski gave evidence that he slipped and fell on soapy water overflowing from a blocked shower (T51‑54). This evidence of having fallen was not supported by any other evidence. Mr Divjakoski gave evidence he reported the fall, "complained", soon afterwards. The person to whom he says he reported it corroborates this and also corroborates Mr Divjakoski's evidence that he had an abrasion on his elbow that he said he suffered in the fall.
On 3 March 2000, the day following the alleged fall, a plumber (C & PM Kings & Son), called by someone unknown but presumably with relevant authority, cleared a "blocked shower waste someone had blocked off airway" (sic) (Exhibit 50). It is not clear which shower was unblocked. There were "four to six" showers in the factory. On the balance of probabilities it is the shower Mr Divjakoski is referring to.
Mr Divjakoski's description of his fall was difficult to follow, melodramatic and improbable, especially given the care with which he said he approached the wet floor and the fact he was wearing his non‑slip safety boots.
However, he made a "fresh complaint", had a minor elbow injury and the relevant floor area was probably wet at the time.
On the balance of probabilities Mr Divjakoski did fall somehow and graze his elbow. Whether he landed on the ground or not is unclear.
Was Boral negligent?
My attention was drawn to Jasmina Investments Pty Ltd v Vlahos [2009] WASCA 190 where the principles governing the duty of care owed by an employer to an employee and what is required for the discharge of that duty, were conveniently summarised by the Court of Appeal. I do not propose to cite extensive paragraphs from the judgment but it is well known that the duty Boral owed to Mr Divjakoski, as its employee, was a duty to take reasonable care to avoid exposing him to unnecessary risks of injury.
The first question is whether a reasonable person in Boral's position would have foreseen that its conduct involved a risk of injury to Mr Divjakoski or other employees like him. As their Honours reminded us a risk of injury is foreseeable if it is not far‑fetched or fanciful.
If a risk of injury was foreseeable, the next question is what a reasonable person in the position of Boral would do by way of response to that risk. As their Honours emphasised in order to consider what needs to be done to discharge the duty of care one must look forward to identify what a reasonable person would have done, not backwards to identify what would have avoided the injury.
It is submitted on behalf of Boral that there is no evidence that it ought to have foreseen that the walkway near the shower posed a risk of injury from slipping (or that an incident of the kind alleged by Mr Divjakoski might happen) so as to require it to take additional precautions to avoid its occurrence.
It was also submitted that there is no evidence that before Mr Divjakoski's alleged fall anyone else had fallen on the walkway or that there was any risk of someone falling that was or should have been known to Boral.
Mr Divjakoski, as his counsel pointed out, testified that "every night he was on the defendant's premises, employees showered, and the walkway was covered in soapy water" (par 73 of submissions, T45‑47).
This allegation by Mr Divjakoski is unsupported by any other evidence.
On balance the evidence establishes that the disposal system for waste water of the shower did not dispose of that water on the evening in question.
As a consequence water flooded onto the walkway. Having observed the water and whilst carefully walking through the water on the walkway Mr Divjakoski says he slipped and fell.
Apart from Mr Divjakoski's evidence, there is no evidence that would support a conclusion that Boral knew or should have known there was water on the walkway. Apart from Mr Divjakoski there was no evidence that there had been water on the walkway previously. There was no evidence of any prior complaint or of any prior fall by any other person as a result of water on the walkway.
In my opinion Mr Divjakoski has not proved there was a foreseeable risk of injury. As I have indicated I am not prepared to accept his evidence, alone, on this issue. He has done no more than prove the existence of a danger at the time of his injury. In my view the evidence leaves open the question of whether the danger had just come into existence or whether it had been present long enough to give Boral the means of knowledge (cf, Hampton Court Ltd v Crooks (1957) 97 CLR 367). There is nothing to show a risk foreseeable by the reasonably careful employer.
It is asserted on behalf of Mr Divjakoski that the alacrity with which Boral cleared the blockage was somehow indicative of "guilt". I do not agree. It was also put, with some enthusiasm, that Boral had taken measures after Mr Divjakoski's fall, sometime in the ensuing years, to reduce the slipperiness of the walkway surface by the application of some sort of non‑slip material.
As I have indicated the evidence of witnesses employed by Boral was to the effect that nothing of the kind was done, and that the surface was the same.
It has not been proved on the balance of probabilities that there were post‑accident measures taken to reduce risk which might therefore be indicative of negligence.
Assessment
It follows from the view I have formed about Mr Divjakoski's credibility that he has not been truthful in his evidence in this trial and he has been thoroughly dishonest in a number of areas of his personal dealings with financial institutions, employment agency and the like.
Mr Divjakoski's case in respect of damages comprises the opinions of a number of medical practitioners who wrote copious reports and some of whom were called to give evidence on oath in the witness box.
Obviously much of what these expert witnesses say is based upon information that was provided by Mr Divjakoski over the years.
Any assessment of damages based upon medical evidence the primary facts for which come from Mr Divjakoski is problematic given my views about Mr Divjakoski's credit. I cannot see how an assessment, useful in the event that my view on liability are found to be wrong, can be made given the conclusions I have reached.
This is particularly so given the plaintiff's claim for economic loss alone is in excess of $800,000! (See the particulars.)
It is true that there is medical evidence to the effect that, in respect of some areas of his claim, Mr Divjakoski's complaints are supported, corroborated. In respect of his right elbow it seems that Mr Divjakoski' suffers from symptoms akin to tennis elbow. According to Dr Desmond Williams there is pathology in the right elbow that is consistent with the symptoms. Dr Williams' evidence was, also, that there is similar pathology in Mr Divjakoski's asymptomatic left elbow. The preponderance of medical opinion on the elbow was that the symptoms should have cleared up within 12 months.
With respect to Mr Divjakoski's psychiatric state the opinion of Dr Skerritt, a respected expert psychiatrist who has often given evidence in this Court, was that Mr Divjakoski is depressed. It seems to me there could be a number of factors, not related to any fall, which might contribute to his depression. The fact that Dr Skerritt's opinion was that Mr Divjakoski was depressed does not, of course, mean that he had the fall he asserts and suffered the injuries he claims.
It is clear that Mr Divjakoski does have some symptoms, in the light of the evidence of Dr Williams and Dr Harper, but to try and assess them upon the basis that Mr Divjakoski's evidence, and history given, is to be accepted as true and accurate, relevantly, is a task I do not feel it would be useful to perform.
Findings
In my view Mr Divjakoski has failed to prove that Boral was negligent. He has also failed to prove that whatever pain and suffering he has was caused by any negligence of Boral. Furthermore I do not accept that he has the incapacity he alleges. There should be judgment for the defendant in this matter.
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