Francis v BGC (Australia) Pty Ltd
[2019] WADC 32
•15 MARCH 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: FRANCIS -v- BGC (AUSTRALIA) PTY LTD [2019] WADC 32
CORAM: BOWDEN DCJ
HEARD: 19-21 FEBRUARY 2019
DELIVERED : 15 MARCH 2019
FILE NO/S: CIV 562 of 2017
BETWEEN: ANDRE MATTHEW FRANCIS
Plaintiff
AND
BGC (AUSTRALIA) PTY LTD
Defendant
Catchwords:
Industrial accident - Negligence - Turns on its facts
Legislation:
Civil Liability Act 2002 (WA)
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
| Plaintiff | : | Mr A A Nolan |
| Defendant | : | Mr N F Morrissey |
Solicitors:
| Plaintiff | : | Stephen Browne Lawyers |
| Defendant | : | Greenland Legal Pty Ltd |
Case(s) referred to in decision(s):
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
BOWDEN DCJ:
On 12 November 2014 Mr Francis suffered an injury to his knee whilst at the defendant's premises in Naval Base.
The parties have agreed quantum, however there is a dispute as to liability.
The plaintiff's claim
Mr Francis says that on 12 November 2014 he was employed by a recruitment firm and working as a labourer at the defendant's premises in Naval Base. He says he was spraying form oil while walking along the top of a concrete mould when he slipped, fell and suffered injury.
He claims the defendant breached the duty it owed to him by requiring him to walk across the top of the mould when it was unsafe to do so, failed to provide proper training and safe working methods, failed to have a proper system in place to enable safely moving around the moulds, and failed to provide sufficient personnel to enable a seat push device or other appropriate devices to be used when applying form oil.
The defendant says that Mr Francis was not spraying form oil from the moulds at the time he suffered the injury.
Further the defendant says that even if Mr Francis sustained his injury whilst spraying form oil, they did not breach any duty they owed because a reasonable person in their position would not have taken any further precautions. They say the risk of injuries was so low that it was reasonable for them to take no action to avoid that risk.
The defendant says its established system for spraying form oil on concrete moulds was straight-forward, and that task had been performed safely for numerous years and to impose a different way of performing that task would be to impose a more stringent requirement on them aided by hindsight.
In addition the defendant say that if they are liable then Mr Francis was contributorily negligent.
Some matters not in dispute
It is not in dispute that on 12 November 2014 Mr Francis was employed as a labourer by KI Recruitment Pty Ltd and they assigned him to perform labouring duties for the defendant at the Naval Base premises where the defendant carried out the business of providing building products and services.
The evidence
Five witnesses gave evidence. The plaintiff gave evidence, and called Mr Groeneworld and Dr Chew. The defendant called Mr Randall and Dr Fairhurst.
At the time of the incident Mr Francis was involved in the production of flexi-mats which were used to stop soil erosion on river beds on mining sites in the northwest.
Mr Francis, Mr Groeneworld, Dr Chew and Mr Randall described the process involved in producing flexi-mats. Although there were some non-material differences in their evidence the commonality of their evidence establishes the following.
Flexi–mats were produced by the defendant at their Naval Base premises. A flexi-mat has a carpet base and adhering to the carpet are 84 inverse frustum shaped concrete blocks.
To manufacture flexi-mats a series of concrete moulds (designed by Mr Randall, who was employed by the defendant) had been constructed by the defendant. Mr Francis and Mr Groeneworld were involved in constructing the moulds. Mr Randall was their supervisor and in charge of the flexi-mat project.
Each mould was a rectangle with a concrete base and sides approximately 2.4 m wide and 6 m in length (ts 9 and ts 121). The concrete sides were about 250 mm wide. Within the mould were 84 plastic cavities constructed in 14 rows longitudinally with 6 rows across the width of the mould. Each cavity was 110 mm deep and the cavity tapered down from the top so that the cavity was 380 mm by 380 mm at the top and 160 mm square at the bottom. Each cavity was surrounded by a 10 mm edge.
Each mould had a steel rail (train track) attached to its concrete upper face so that an automatised concrete hoper, also designed by Mr Randall, could travel above each mould.
Once the moulds were constructed they were taken to a BGC yard in Naval Base for the flexi-mats to be produced.
The moulds were set up in two rows of 30. Each mould was about 1 m apart from the next mould in the row and each mould in the row was joined to the mould in front and behind it by the steel rail running down each side of the moulds.
To produce the flexi-mats a concrete hopper would travel along the steel rail tracks across each mould down the row of 30 moulds and pour concrete into each of the cavities within the moulds. Mr Randall said it would take the hopper about 1 1/2 minutes to fill each mould. A concrete truck would travel next to the concrete hoper supplying concrete to the hopper.
Another machine, designed by Mr Randall, known simply as the carpet machine would follow the concrete hopper and lay carpet over the top of the recently poured concrete and then vibrate it onto the concrete.
Some time was allowed for the concrete to dry and then a gantry crane would lift the carpet which had the frustum shaped concrete blocks attached to it from the mould. The finished flexi-mats were loaded onto trucks and despatched to their destination. Using this process some 4,000 flexi-mats were dispatched to the Roy Hill iron ore project.
Once the gantry crane removed the flexi-mats the moulds had to be prepared so the whole process could start again.
There were three processes involved in preparing the moulds for the next production run.
The first process was known as scraping and that involved using hand scrapers, some with handles about a metre in length, to scrape the excess concrete from inside the moulds and from the edges surrounding the moulds.
The second process was known as blowing and involved blowing excess dirt or concrete from the moulds. It seems that either an air compressor mounted on a trailer and pulled by a ute or a normal garden blower was used to perform this task. Those performing the blowing process stood on top of the moulds walking forwards operating the blower.
The third process was known as oiling and involved spraying a release agent, referred to by Mr Francis as form oil, into the cavities to stop the concrete sticking to the plastic cavities. The spraying process involved a worker standing on top of the concert mould facing forward and walking backwards whilst spraying the form oil into the cavities. Mr Randall said a worker spraying from the top of the moulds in an arch sweeping motion was able to apply a more even spray than if they were spraying from the ground. The worker spraying the form oil was required to walk backwards otherwise he would leave footprints on the mould. It is not disputed that Mr Randall instructed the workers to perform the oiling in this manner.
On some occasions a 100 litre container of form oil was on a trolley with a long hose running from the container to the spray wand. A battery was also on the trolley presumably to pump the oil to the wand. One person would push the trolley and the other person would be on top of the moulds spraying the form oil into the mould. Mr Randall said the trolleys were heavy and hard for people to manoeuvre and use and often the trolley wheels or battery were damaged.
On other occasions a 10 litre garden type container with in-built pumps were used however the difficulty with those pumps were that they had to be pressurised by hand pumping before the spray wand was operated and the containers had a 10 litre capacity so they have to be filled at regular intervals.
Whichever pumping system was used the worker was required to stand on top of the mould and walk backwards whilst spraying the form oil into the cavities. The worker was required to walk backwards and spray all 14 rows of the cavities in each mould.
Teams of workers were involved in this process. The exact number of people in the teams was unclear. Mr Francis said there were 8 to 10 in a team, Mr Groeneworld 12 to 15 and Mr Randall said about 8.
All the team would initially commence the scrapping process and after they had moved down the line scrapping the moulds some of the team would continue scrapping and some would go back to the first mould and start blowing and as they then moved down the row of moulds others would start the oiling process. As the team moved progressively down the row of moulds the concrete hopper and the carpet machine would commence their tasks.
Mr Randall was the defendant's supervisor involved in designing and building the concrete moulds for the flexi-mat project and the work process relating to their use. Mr Randall was in overall charge of the project. At the time of the incident Mr Francis was also supervised by Mr Callard from the recruitment company and Karl (surname unknown) from the defendant.
Andre Matthew Francis
Mr Francis said that in 2014 he was a labourer working for KI Recruitment and was assigned to work at the BGC plant in Naval Base. He worked from about May to August/September at the form work and concreting division and from August/September worked producing flexi-mats (ts 23).
He said the defendant's supervisor was Mr Randall.
Mr Francis said he had previously worked as a paid security officer including at the Chase Bar in Warnbro. Whilst working at that bar he met Mr Randall who was able to obtain work for him at the defendant's premises. After his worker's compensation claim relating to this incident was settled Mr Francis returned to work as a paid security officer for a short time.
Mr Francis said that on the 12 November 2014 he was involved in scraping the moulds for around about 2 hours and was informed that the concrete truck was on the way and the concrete pour was going to be around about 7.30 am.
Mr Francis said Mr Callard then divided up the team with the majority continuing the scraping however he and Mr Groeneworld started blowing the moulds.
Mr Francis said he used a compressor that was on a trailer behind a ute. A hose came from the compressor and he used that hose to blow out the excess dirt or concrete from the moulds. He blew out approximately three to five moulds over a 5 minute period and then was told by Mr Callard to start oiling.
To do this Mr Francis stepped up onto the mould and walked backwards spraying form oil into the moulds' cavities.
Mr Francis said he would spray from left to right two rows at a time then move backwards and spray another two rows. He said he had to walk backwards to avoid stepping on the oil that had just been sprayed.
Mr Francis said exhibit 2.194 showed the type of spray bottle that he was using to spray form oil into the moulds on the day. That involved a large spray bottle sitting on a trolley with a lengthy hose attached to the spray bottle leading to a dispersing wand with a nozzle on it. He agreed he told Mr Chew in July 2018 that he was using a 10 litre container and a hand dispenser nozzle that was pressurised by a built‑in hand pump.
Mr Francis explained the discrepancy by saying that he must have forgotten about the fact that they had been using the large tank attached to a trolley. Mr Francis accepted that these were two vastly different devices but said that they were used for the same purpose, that is spraying oil onto the moulds.
Mr Francis said he oiled about five or six moulds before he slipped and hurt his knee.
He said he was about four rows from the front of the mould he was oiling and about two rows in from the edge when the incident occurred.
The effect of Mr Francis' evidence was that his right foot was two rows from one edge of the mould and his left foot was about two rows from the other edge at the time of the incident. Thus his feet were about two cavities width apart. He said he was standing on the edges of two intersecting cavities and was moving backwards when his right foot slipped into the cavity and twisted his ankle inwards. He fell forward and his knee hit one of the edges of the cavity.
Mr Francis said he got up and hobbled to the equipment container which was nearby. Mr Callard asked what had occurred and he told him he slipped while doing the oiling and stuffed his knee up.
Mr Francis said he sat in the container and asked for an incident book but Mr Callard was unsure whether there was one. Mr Francis said when he opened up the first aid kit he found an incident book inside it and sat there trying to calm himself.
He later left the site and saw a doctor then returned, picked up his car and reported the incident to KI Recruiting, firstly by telephone and then by attending their office.
Mr Francis said that when he was in the KI Recruiting office he sat down with two representatives to report the incident and tried to explain what happened. He explained what he was doing at the time he slipped and explained the procedure involved in oiling the moulds.
Mr Francis said he filled out the worker's compensation form (exhibit 1 .74 - 1.75) saying that he was 'blowing mould with blower' at the time of the incident and shortly after this completed a statement which said he was 'blowing out the dirt with blower' when he slipped (exhibit 1 96 - 1.97). Mr Francis knew that those statements were important and were for the purposes of assisting with the investigation of the accident and for worker's compensation purposes and knew that it was important that he correctly described what occurred during the incident.
Mr Francis said those two forms were not correct as he was oiling at the time and not blowing.
He said he wrote that he was blowing because he was trying to simplify what occurred. He said that he had explained the process of blowing and oiling to those present but they did not understand. He said he drew a diagram and explained where he was standing and what he was doing.
Mr Francis said he was told to keep it simple and said that as he could not explain what form oil was in the small space on the compensation form he wrote that he was blowing the mould and not oiling. Mr Francis said he could not explain why he chose to write blowing but at the time thought this was the simpler way to explain what he was doing. He maintained that he was just trying to simplify things.
In relation to completing the statement he said he was 'unsure' of why he chose to write blowing and said he found it difficult to explain what form oil was and he had been told to simplify it so he 'kept in line' with what he had written on the compensation form (ts 20 ‑ 21).
Mr Francis agreed that he could easily have written 'slipped whilst oiling' but maintained that all he was trying to do was to simplify what occurred and did not think he was creating any confusion by using the description he did.
Mr Francis agreed that on 8 December 2014 when he saw Dr Lim he said he was injured when he was 'dusting off the muffin tins for pre fab concrete'. Mr Francis said he was just keeping to what he had put on his worker's compensation and statement forms. Mr Francis said he did not go into details of what he was doing at the time he was injured with Dr Lim nor did he explain the process involved but just maintained what he had said previously.
Mr Francis agreed that when he saw Ms Galati, a rehabilitation specialist, at a meeting on 10 June 2015 he told her that he was spraying form oil onto the concrete moulds and agreed that her report in June 2015 was the first that recorded that he was spraying form oil into the moulds at the time of the incident.
Mr Francis said he attended a site induction when he first started work with the defendant in May 2014 and attended another on-site induction in September or October 2014 when he first started at the yard where the incident occurred.
He agreed the on-site inductions involved housekeeping matters such as where the toilets, fire exits and the muster station were located and also included matters such as identifying hazards, reporting injuries, reporting hazards and reporting incidents and who to report them to. He knew to report hazards to his supervisor and managers.
Mr Francis agreed that he attended toolbox meetings fortnightly to deal with safety issues but neither he nor anyone else raised issues about the safety of the moulds at any of those meetings.
Notwithstanding this Mr Francis said he noticed a number of hazards including that the walk paths were blocked, that leads were being left around and also identified that walking on moulds was a hazard. He said quite a few people had slipped and he thought that the moulds were 'very dangerous' and said he raised the issue with Mr Randall.
Mr Francis said he reported to both Mr Callard and Mr Randall that it was a slip hazard to walk on the moulds. He said Mr Callard was part of the discussions that occurred over other ways to carry out the task but Mr Randall was not so much a part of those discussions.
He said he told Mr Randall words to the effect that too many people were slipping while walking on the moulds with the spray form oil and asked him if there was another way. He said Mr Randall told him that he had designed a carriage from which to spray the form oil but it was not operational because the machine had not been completed.
Mr Francis said that three to four weeks prior to the incident he discussed better ways to spray form oil on the moulds and was told the machine was not up and running due to funding restrictions.
Mr Francis said the completed machine was meant to be automatic and designed to travel along the train tracks on the side on the mould. Mr Francis said he and other workers actually tried the incomplete machine by having two people either side pushing it and one person in the carriage spraying but it was too slow.
Mr Francis said that there was a gap between each of the moulds and it was possible to walk along the outside of the moulds and to carry out the oiling without stepping up onto the moulds however this was very time consuming and time was a factor in the job.
Mr Francis said he did not think he told Dr Fairhurst in July 2015 (exhibit 1.19 - 1.23) that the incident was reportedly witnessed by his supervisor. He said he could not recall saying this and he thought he told Dr Fairhurst that his supervisor was on site and he reported it to him. He said he did not think his supervisor had witnessed the incident.
Surveillance footage (exhibit 4) taken on 31 July 2015 shows Mr Francis at the Chase nightclub dressed in the security officer's uniform and wearing security officer's identification tags. The footage is grainy and on occasions it is difficult to make out clear images. Mr Francis does not dispute that the footage shows him standing unassisted for extended periods of time and performing the role of a security officer by checking identification and walking around the premises. Mr Francis agreed that at this time he was certified unfit for work. Mr Francis said that you could see from the footage that at one stage he had trouble going up the last step on the steps. He also said the footage showed he was shifting his weight from one side to another and on occasions stretching his leg and sitting down.
Mr Francis denied that he was working for reward or that it was a planned occasion. He said that earlier in the evening he had an argument with his wife and then went to the Chase Bar, where he had worked previously, of his own accord to hang about with his friends because he had issues relating to the injuries he had received in the incident and the death of his father.
Mr Francis said he wanted to get out of the house and the security officers at the Chase were his friends and support network. He said when he got there the supervisor told him there are only two on duty and asked him to help out and he was told there was a party going on at the premises and asked to hang around and give them a hand and so he did. Mr Francis agreed that he performed the work duties of a security officer for 3 ½ to 4 hours. He said he kept his security tags in the car.
Mr Francis was also shown surveillance footage of 18 September 2015 (exhibit 4) which showed him at Metros Club dressed in the black clothing of a security officer. Mr Francis said he could not recall whether he was wearing his ID but most likely had his ID on him.
He agreed that the footage showed him telling people to move on. Mr Francis said he went to Metros to watch two of his friends compete in a fight. He said there was an agreement with the proprietors that if off duty security personnel went to watch an event and wore their security clothes they would be given free entry. Presumably thereby benefitting the premises by giving the impression that there are more security personnel on duty. He said it was just out of 'reaction' from his years of work as a security officer that he asked people to move on because they were standing in the pathway. He denied that he was paid other than by obtaining free entrance.
Mr Francis agreed that at numerous meetings with health providers in June and July 2015 he complained of injuries insofar as his knee was concerned and difficulties standing, walking and climbing stairs.
Mr Francis agreed he knew that his health care and rehabilitation providers were looking for alternate careers for him that did not involve labouring. He agreed that at the time he had been actively portraying to doctors and other health care workers that he could not work. He agreed that he did not mention to them, including his doctor who was providing worker's compensation certificates, that he had performed security officer's duties on at least two occasions during that period.
Mr Francis said he did not tell anybody about either the Chase or Metro occurrences because it was just a night out and he did not see the relevance of reporting these incidents as it was not paid employment.
Mr Adam Groeneworld
In November 2014 Mr Groeneworld was employed by a labour hire firm and working on the BGC site in Naval Base as a labourer.
He was a frank and straight forward witness however his evidence does not assist as he was on site on the day of the incident but did not see the incident occur and had no direct recollection of seeing Mr Francis after the incident.
While Mr Groeneworld said in evidence-in-chief that he was blowing at the time of the incident it emerged in cross-examination that he could not remember the specifics of that day and could not recall what he was doing at the time of the incident nor recall what Mr Francis was doing.
His evidence does not assist in establishing what activities were being performed by Mr Francis at the time of the incident
Dr Chong Ngai Chew
It was not disputed that Dr Chew is an expert mechanical engineer and ergonomist with over 35 years forensic consulting experience in matters such as mechanical engineering, ergonomics, occupational health and safety and motor vehicle analysis. His report is exhibit 1.17 to 1.58.
Dr Chew examined and measured the moulds which were still at the BGC yards. He applied two critical assumptions in the preparation of his report. Firstly, that at the time of the incident Mr Francis was spraying form oil into the mould while he stood astride the mould. Secondly, that Mr Francis was walking backwards as he sprayed the form oil. Dr Chew also considered the position where some of the oil droplets being sprayed went onto Mr Francis' shoes or onto the mould and the position when this did not occur.
Using the criteria set out in the Australian Standard Handbook 25‑2004 known as 'OH&S Risk Management Handbook', Dr Chew concluded that there was a high level safety risk of a slip and fall when spraying form oil whilst on top of the mould and moving backwards.
Dr Chew said that assuming Mr Francis had to walk backwards whilst spraying the form oil and was standing astride the top edges of a mould with his feet placed as much as possible on the intersection points of the mould cavity grid then if:
(a)The foot was positioned centrally on the intersecting point of the top edge, ie the geometric centre of the foot was placed over the intersecting point of 20 mm wide plastic lining top edges, it should receive support in two mutually perpendicular directions in spite of the narrow width of the footing and should remain stable.
(b)The geometric centre of the foot is placed well to the front or the rear of the intersection point then most of the foot would be standing on a 20 mm wide plastic lined top edge with no lateral support and would therefore be a risk of slipping laterally off the narrow 20 mm edge.
Dr Chew concluded that the system of work involving Mr Francis spraying form oil from the top of the mould and walking backwards presented a high level safety risk of a slip and fall irrespective of whether or not the sprayed oil falls onto the 20 mm wide plastic lined surface on which Mr Francis was standing.
Dr Chew pointed out that there were two rows of 30 moulds which meant that Mr Francis would have to walk back continually to perform the spraying task over a prolonged period and the form oil dispensed could fall onto the top edge of the cavity grid due to the close proximity of the spray area to where he was standing and by being blown by wind.
Dr Chew said there were that other systems available that could minimise, avoid, or substantially reduce to an acceptably low level the risk of injury from a slip and fall when performing the form oil spraying task. Those systems were:
(i)Installing an automated form oil spraying system.
(ii)Installing a motorised carriage with a work platform that would enable the worker to stand thereon where spraying form oil.
(iii)Implementing a work method where two workers are assigned to perform the spraying task from the ground along the two long sides of the mould with one worker on each side, each using a container with the long nozzle that could reach the third row of cavities in front of the worker.
Mr Chew's expertise was not doubted in any shape or form nor was he challenged about his conclusions.
However the basic assumptions made by Mr Chew, that is that Mr Francis was on top of the mould, walking backwards and spraying form oil at the time of the incident are not accepted by me because I do not accept Mr Francis' evidence in this regard.
Mr Martin Randall
Mr Randall has been involved in the construction industry for over 25 years.
Mr Randall met Mr Francis when he was a security guard at the Chase nightclub and arranged a job for him at the defendant's yard.
Mr Randall was not at the site at the time the incident. Whilst he retained overall control of the flexi-mat project and was on site most days when the production phase started other supervisors were also appointed being Mr Callard from the labour hire firm and Karl (surname unknown) from BGC and they shared responsibility.
Mr Randall agreed that if a person was spraying oil and walking backwards they could not see where they were placing their foot. However he maintained that this was not an issue because all the moulds were the same and the workers knew exactly where their foot was going and what was behind them because the moulds were mass produced. He said that if the worker stood on the mould the ball of his foot would either be on the edge of the cavities or foot would go into the cavity. He said that there was always a risk of slipping at any time and he had seen people slip on flat concrete floors or just as they walked.
Mr Randall said before the moulds were used in the production phase by the workers he tested his system in the first two weeks by spraying about 30 of the moulds himself. He said he showed the workers how to perform their task.
Mr Randall said he worked on the designs of a carriage to carry the tank containing the form oil. The carriage had four wheels and would move along the rail at the edges of the concrete moulds. He said a worker would be needed to push the carriage along the rail and the person spraying the oil would still be on top of the moulds spraying and not in the carriage.
Other aspects of Mr Randall's evidence are dealt with later in this judgment.
Mr Randall's evidence contradicts Mr Francis on two issues and whilst I had some concerns about Mr Randall's robust attitude in respect of the safety of the system he designed I find him to be a truthful witness.
Dr Andrew Fairhurst
Dr Fairhurst is an approved medical specialist and a general practitioner who, since 2001, has been practicing from the Sonic Health Plus Centre.
He said he saw Mr Francis on 22 July 2015. His report in relation to that consultation is exhibit 2.19 to 2.30.
Dr Fairhurst said he took the history of how the incident occurred directly from Mr Francis and wrote down exactly what Mr Francis told him. He said he did this because it was Mr Francis' history and not his interpretation that he wanted to record.
I accept Dr Fairhurst's evidence that he recorded exactly what he was told by Mr Francis and in particular that he was told that the incident was reportedly witnessed by Mr Francis's supervisor.
Findings
Mr Francis is the only witness as to the manner in which the incident occurred. Mr Francis bears the burden of proving his case on the balance of probabilities.
Mr Francis says that at the time of the incident he was oiling.
I do not accept Mr Francis' evidence for the following reasons.
On the very day of the incident Mr Francis completed the worker's compensation claim form (exhibits 1.74 and 1.75) in which he stated that at the time of the incident he was 'blowing mould with blower' (exhibit 1.74 - 1.75). Shortly after completing that form he provided a statement saying 'I was blowing out the dirt with blower' (exhibits 1.96 to 1.97).
On 8 December 2014, six weeks after the incident, he told Dr Lim that he was injured 'dusting off some muffin tins for the pre-fab concrete'.
The processing of blowing the moulds is a fundamentally different process to that of oiling the moulds. When a worker blows the moulds he stands on top of the moulds with a blower walking forwards. When a worker sprays oil he stands on top of the moulds walking backwards whilst spraying oil. Mr Francis accepted that these were fundamentally different tasks and agreed that he knew the importance of being accurate when completing his worker's compensation claim form and statement.
The fact that on the very day of the incident, within hours of it occurring, Mr Francis made two written statements saying he was blowing the moulds clean and six weeks later tells a doctor the same thing and then for the first time some seven months after the incident reports to a health care provider that he was oiling and maintains that position in his evidence causes me to have significant doubts as to his credibility.
I do not accept the explanations he gave in evidence for the discrepancies. In closing submissions Mr Nolan suggests that the people Mr Francis was reporting the incident to were having difficulties understanding the oiling process. This is slightly different to Mr Francis' evidence as he also said on several occasions that he was having trouble explaining what the oiling process was. Mr Francis ultimately agreed that he could have said that he was oiling or spraying rather than saying he was using a blower. Mr Francis attempts to explain why he used the words blowing instead of spraying or oiling did not provide any plausible explanation. His credibility is adversely affected by the two written statements made on the day of the incident and the oral statement made to Dr Lim six weeks later which are inconsistent with the evidence he gives. They are inconsistencies which go to the very heart of what he was doing at the time of the incident. At the very best for Mr Francis they show that he is an inaccurate historian at the worst that he has reconstructed what occurred to improve his prospects of success.
Mr Francis also said in evidence, without objection, that he told Mr Callard shortly after the incident that he was oiling. Mr Callard did not give evidence.
There is no contemporaneous record of that conversation. I do not accept Mr Francis' evidence on this point. It is inconsistent with his conduct in that a couple of hours later he signed a worker's compensation form and then a statement saying that he was blowing in circumstances where he knew the importance of signing those documents, and then six weeks later he told his doctor that he was blowing at the time of the incident. I find that evidence to be untruthful evidence given to advance his case. Even if I was to accept it was said it would only support my conclusion that Mr Francis says so many different things on different occasions that he is an unreliable witness.
Another concerning aspect of Mr Francis' evidence is that he said at the time of the incident he was spraying oil from a spray system involving the use of a large 100 litre container mounted on a trolley as shown in exhibit 2.194.
Mr Francis agreed that he told Dr Chew in July 2018 he was using a 10 litre handheld spray unit. Mr Francis' explanation was that he forgot about the 100 litre container on the trolley when talking to Dr Chew.
Mr Francis agreed that they were different 'contraptions' even though they were used for the same purpose.
I take into account that Mr Francis was giving evidence in 2019 about an incident occurring in 2014 and he spoke to Dr Chew in 2018. Allowances have to be made for the lapse of time and its effect on memory however the inconsistent description of the apparatus he was using to spray the oil is another indication that Mr Francis is, at best, an inaccurate historian.
Mr Francis agreed in his evidence that he attended toolbox meetings on a fortnightly basis and those meetings were a chance to talk about safety issues. Mr Francis said he thought the moulds were very dangerous and quite a few people had slipped on them. Mr Francis agreed that he did not raise, nor was he aware of anyone else raising, any issue about the safety of the moulds at any of those meetings.
I find it inherently implausible that if these moulds were very dangerous and quite a few people had slipped that Mr Francis or others would not have raised concerns about the moulds at the toolbox meetings.
The minutes of the toolbox meetings (exhibits 2.155 to 2.167) are of limited assistance as they relate to June 2014 to August 2014 whereas Mr Francis started at the facility where the flexi‑mats were produced in around about September/October 2014 (ts 22).
Mr Francis says he mentioned the slip hazard of walking on the moulds to Mr Randall and Mr Callard (ts 23). Although he could not remember word for word what he said to Mr Randall Mr Francis said he told him that too many guys were slipping while they were walking on the moulds and they were slipping while spraying form oil from the moulds. Mr Francis said he asked if there was another way of spraying the moulds.
Mr Francis said Mr Randall told him he had designed a carriage that would automatically spray the oil whilst the operator was standing on the ground but the carriage was non-operational. Mr Francis also said he discussed with Mr Randall about three or four weeks prior to the accident better ways of spraying form oil on the moulds and was told that the spraying machine was not going to be up and running because of funding constraints (ts 25).
Mr Francis maintained under cross-examination that he made a complaint to Mr Randall before the accident occurred (ts 34) and that quite a few people had slipped walking on the moulds and they were very dangerous (ts 36).
Mr Francis' evidence is contradicted by Mr Randall in two aspects.
Mr Randall's evidence has to be examined closely as some aspects of it were of concern. Mr Randall had a worryingly robust attitude towards slip risks saying that people can slip at any time even when they are walking and he did not seem to even remotely recognise the slip risk in spraying form oil whilst standing on a mould which has eighty four cavities and walking backwards. I am also alert to the fact that as the designer of the flexi–mat system and in charge of its implementation there is a risk that Mr Randall would be disinclined to accept that there were any faults with his system.
The first aspect where Mr Randall contradicts Mr Francis is that Mr Randall said that he had no recollection of anyone expressing concerns to him about walking on the moulds or saying that the moulds were dangerous or that people were slipping on them.
Mr Randall said that if anybody complained to him he would have fixed the issue and invented something because his 'neck' was on the line as management would crucify him as he invented and developed the whole system, which he described as his 'baby'. Mr Randall said he would have known if somebody brought concerns to him.
Notwithstanding the matters raised in [122] I prefer and accept Mr Randall's evidence on this point. Mr Randall is an inventor. The flexi‑mat project was under his control. He designed and made the concrete hopper and carpet layer and had designed the incomplete spraying carriage. I accept his evidence that if anyone had raised concerns about slipping on the moulds he would (a) have remembered and (b) invented some device to overcome the difficulty.
Mr Randall's evidence also contradicts Mr Francis' evidence in another aspect because Mr Francis said that the carriage was designed in such a way that the spray operator would be walking on the ground spraying whereas Mr Randall's evidence was that the carriage was designing to hold the form oil tank and the spray operator would still be required to be up on the moulds so that an even spray could be applied. I accept Mr Randall's evidence. He is the designer and I accept his evidence in relation to the type of machine that he was designing.
I find that Mr Francis' evidence that he told Mr Randall about the moulds being very dangerous and that people were slipping on them is evidence created by him to advance his case. This is a damaging finding to his credibility.
It was suggested by Mr Morrissey that there was an issue with Mr Francis' credibility because his evidence was that Mr Callard, one of his supervisors, did not witness the incident and this contradicts Dr Fairhurt's note that Mr Francis told him 'the incident was reportedly witnessed by his supervisor'.
In my view there is no merit in the submission that there is an inconsistency between what Mr Francis said in evidence and Dr Fairhurt's note of what Mr Francis said.
Dr Fairhurst note was 'the incident was reportedly witnessed by his supervisor'. The plain and natural meaning of that phrase, in light of Dr Fairhurst's evidence that he wrote down exactly what he was told by Mr Francis, is that Mr Francis is telling Dr Fairhurst that he did not know whether his supervisor had witnessed the incident but it had been reported (ie others told him) that he had. If Mr Francis told Dr Fairhurst that the supervisor witnessed the incident then Dr Fairhurst would have written that Mr Francis told him his supervisor witnessed the incident and not 'the incident was reportedly witnessed by his supervisor'.
I am not satisfied any inconsistent statement was made by Mr Francis in this regard, Dr Fairhurst's evidence does not damage the credibility of Mr Francis.
Mr Morrissey also submitted that as Mr Callard had not been called and no explanation had been provided for his absence and it was open to draw a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference.
I am not satisfied that a Jones v Dunkel inference should be drawn. One of the criteria before such an inference is drawn is that the witness must not be equally available to both parties. If the defendant wished they could have subpoenaed Mr Callard. There is nothing before me to show that Mr Callard is not equally available to both parties. This case can be determined based on the evidence called without the need for any Jones v Dunkel inferences.
Mr Morrissey relies on the surveillance footage of 31 July 2015 and 18 September 2015. Mr Morrissey says it is inherently implausible that Mr Francis would have dressed as a security guard, put on his official ID, attended the licensed premises and performed the duties of an operational security officer without being paid.
There are limitations attached to the inferences that are to be drawn from the surveillance footage. Firstly the footage is of events occurring in the night time and it is often difficult to see exactly what Mr Francis is doing and on occasions he is obscured. There is no issue as to Mr Francis' identity because he has admitted that it is he depicted in the footage. The surveillance footage relates to two separate occasions and for a limited period of time on each of those occasions.
Whilst I agree that Mr Francis' explanation for his attendance at The Chase on 31 July 2015 and his subsequent performance of security officer's duty for a 3 ½ to 4 hour period sounds unlikely at the end of the day the explanation is not so farfetched or fanciful that I would reject it.
Similarly Mr Francis' explanations for his attendance at Metros on 18 September 2015 and his conduct in asking patrons to move out of a pathway are not so farfetched or fanciful that I would reject them.
However, what I do find damaging to Mr Francis credibility is that performing the activities shown on the surveillance footage is inconsistent with the general picture Mr Francis portrayed to his health care providers about the time that footage was taken.
Mr Francis agreed that he had been certified as having no capacity to work for the period from 8 July 2015 to 30 September 2015 as a result of certificates issued by Dr Marimuthu.
On the 1 July 2015 Mr Francis advised his rehabilitation providers, Freshstart Injury Management, that after about one hour at a return to work programme they had organised he was limping and needed to sit down due to increased pain.
Mr Francis agreed that on 22 July he saw Dr Fairhurst and told him he had significant limitations in walking, standing and lifting and was limited to half an hour of walking before starting to limp.
Mr Francis also agreed that he met with both Ms Galati from Freshstart and Dr Marimuthu on 6 August to discuss his progress and potential return to work but did not tell him he performed the duties as a security officer for 3 ½ to 4 hours on 31 July 2015.
Mr Francis agreed that when he met with a rehabilitation provider on 21 August 2015 he told them he did not think he could return to security work because it required standing for long periods and agreed that he made no mention of the activities he performed on 31 July 2015.
Mr Francis agreed that at dates that are in relatively close proximity to the dates that he is seen on the surveillance footage performing the task of a security officer he was certified totally unfit for work by his general practitioner and was receiving full worker's compensation payments and, as he acknowledged, the rehabilitation providers were actively trying to find alternative work for him.
Mr Francis said he did not tell his health providers about the activities shown on the surveillance footage because he was not being paid for those activities and they were both in essence one-offs.
Mr Francis' explanations are not so farfetched or fanciful as to be implausible and I would not draw the inference that he was performing paid work on the two dates in question.
However the general picture painted at the consultations between Mr Francis and his healthcare providers at times in close proximity to the surveillance footage is that Mr Francis was saying he was limited in his ability to stand and walk and he was not capable of returning to full time work. The surveillance footage is of two separate dates and what is shown therein does not enable me to conclude that Mr Francis was capable of returning to full time work.
Mr Francis' explanations as to why he did not disclose these activities to the health care providers is not so farfetched or fanciful as to be implausible. However it creates a concern that he was not being entirely frank in disclosing to his healthcare providers what he had been doing and what he was capable of doing.
Mr Francis must satisfy me on the balance of probabilities that at the time of the incident he was spraying oil on top of the moulds. The proper approach is not to examine each piece of evidence given by Mr Francis individually but rather to consider his evidence in its entirety and to draw conclusions from it viewed as a whole: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 [64].
As indicated I do not consider there is any prior inconsistent statement between any history Mr Francis provided to Dr Fairhurst and Mr Francis' evidence. I find no merit in that submission.
Mr Francis' explanations as to how and why he was performing the activities displayed on the surveillance footage are not so fanciful or farfetched that they are dismissed by me as being implausible. I would not draw the inference that he was performing paid work on the two dates in question.
Similarly Mr Francis' reasons for not disclosing to his health care providers what he had done on the two occasions shown on the surveillance foot is not so farfetched or fanciful as to be implausible.
However the explanations provided creates a concern that Mr Francis was not being entirely frank in disclosing what he was capable of doing and cause me to be cautious about accepting his evidence.
Mr Francis' two written statements made on the day of the incident and his further oral statement to his doctor six weeks later detailing what he was doing at the time of the incident are wholly inconsistent with his evidence. These inconsistencies are over a crucial and material matter.
Mr Francis gave evidence as to the spraying apparatus that he was allegedly using at the time of the incident that was inconsistent with what he told Dr Chew some eight months previously. This is another inconsistency.
Mr Francis attended fortnightly toolbox meetings where safety issues were discussed and despite his evidence that people had slipped on the moulds and he considered them to be very dangerous he did raise any issue with the moulds at those meetings. By his own evidence Mr Francis is a 'hands on' person who helps other people. He helped his former workmates out at The Chase on 31 July 2015 by performing security work, he helped out at Metros by telling people to clear the pathway. If people were slipping on the moulds prior to the incident I find it inherently implausible that Mr Francis would not have raised the issue at the toolbox meetings. I reject his evidence that other people had fallen on the moulds before the incident.
Mr Francis' evidence is contradicted on two issues by Mr Randall. One of those issues is whether he raised safety issues with Mr Randall about the dangerous moulds and people slipping. This is a crucial and material matter and I accept Mr Randall's evidence that those matters were not raised.
The other issue being the design of the carriage safety issue although that in itself is not a material issue I again prefer the evidence of Mr Randall.
In my view the significance and timing of the prior inconsistent statements relating to the actual task Mr Francis was performing at the time of the incident, the inconsistency over the apparatus allegedly being used at the time, the implausibility of not raising the issues of people slipping on the moulds at toolbox meetings if people had previously slipped and the finding that Mr Francis did not raise safety issues with Mr Randall and did not tell Mr Callard he was oiling and had embellished his evidence in that regard to advance his case lead me to conclude that I cannot accept Mr Francis' evidence that he was oiling at the time of the incident.
Mr Francis' evidence and pleaded case was that he was on top of the mould, walking backwards, and spraying oil when he fell.
I am not satisfied that the incident occurred in this manner because Mr Francis' evidence cannot be relied on.
The worker's compensation form and the statement which were tendered in evidence without objection (exhibits 1.74 and 1.75, and 1.96 and 1.97) were tendered in evidence in circumstances where Mr Francis had admitted that he had completed those forms saying he was blowing at the time of the incident and therefore were not tendered to establish any inconsistent statement. Once admitted as evidence the contents of the documents become evidence for my consideration that would be capable of establishing that Mr Francis was blowing the moulds at the time of the incident.
However Mr Francis constantly maintained in his evidence that he was oiling at the time of the incident. In light of the inconsistencies in his evidence and other deficiencies referred to I am not able to rely on what Mr Francis has said in or out of court and are not able to say what he was doing when he was injured.
I cannot make a finding as to what task Mr Francis was performing at the time of his injury and his claim must be dismissed.
As I cannot make a finding as to what task Mr Francis was performing at the time he injured his knee it would be inappropriate to consider questions of scope and breach of duty, causation and contributory negligence.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Court Officer15 MARCH 2019
0