Mechanike v VWA
[2021] VCC 1638
•2 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04250 & CI-21-02127
| ISMAIL JAVI MECHANIKE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne (via Zoom) | |
DATE OF HEARING: | 22, 23, 27 and 28 September 2021 | |
DATE OF JUDGMENT: | 2 December 2021 | |
CASE MAY BE CITED AS: | Mechanike v VWA | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1638 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – leave sought for pain and suffering and pecuniary loss damages – was the plaintiff a worker – entitlement to compensation
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Elazac Pty Ltd v Shirreff [2011] VSCA 405; Eastern Van Services Pty Ltd v Victorian WorkCover Authority and Anor [2020] VSCA 154
Judgment: Proceeding CI-20-04250: Leave is granted to the plaintiff to commence common law proceedings for pain and suffering and economic loss damages
Proceeding CI-21-02127: Declaration that the plaintiff is a worker within the meaning of the definition contained in s3 of the Act
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr O Lesage | Zaparas Lawyers |
| For the Defendant | Mr P Elliott QC with Ms K Manning | Wisewould Mahoney |
HIS HONOUR:
The plaintiff’s background
1The plaintiff, Mr Ismail Javi Mechanike, was born in Iran in 1976.
2In 2012, the plaintiff came to Australia as a refugee. He then commenced work as a self-employed painter, despite having no formal trade or qualification. He advertised for work under the business name of Pro Elite Painters and obtained an ABN for that painting business.
3The plaintiff now lives with his partner, Ms Shekufe ‘Lili’ Neysi, in Roxburgh Park. He has an adult son from an earlier relationship who lives in Iran.
The defendant’s background
4Mr Bahram Peyrow (hereinafter referred to as ‘the defendant’) was also born in Iran.
5The defendant also migrated to Australia as a refugee and commenced work as a painter, but he arrived in Australia well before the plaintiff. He also ran his own painting business. He commenced the painting business in approximately 2003. In June 2013, he registered the business name, Astro Painting and Decorating, and operated under that business name, with an ABN, until (apparently) a back injury forced him to cease that business in September 2015.
6Sometime after September 2015, the defendant was granted a disability pension, which he continues to receive.
PJ Meats
7PJ Meats is a meatworks operated from premises in Thomastown (“the meatworks”).
8Two of the directors of PJ Meats are Mr Gabriel Lotesto and Mr Paul Papa (“the Directors”).
9In 2016, Mr Lotesto engaged the defendant to paint the inside of the lunchroom at the meatworks. According to Mr Lotesto, the defendant “had a sub-contractor assisting him” with that job.[1] Mr Papa said he does not know whether that person assisting was a contractor or an employee of the defendant.[2]
[1]Affidavit of Gabriel Lotesto sworn 9 September 2021, Defendant Court Book (“DCB”) 283 at [2]
[2] Affidavit of Mr Paul Papa sworn 9 September 2021, DCB 285 at [3]
10Approximately a year later, in 2017, Mr Lotesto and Mr Papa decided to engage the defendant to paint the outside of the lunchroom at the meatworks (“the meatworks job”). Mr Papa said on this second occasion the defendant had a younger person assisting him.
The plaintiff approaches the defendant for work
11In early to mid-2017, the plaintiff suffered a downturn in his painting business. In the first affidavit sworn by him on 7 April 2020, the plaintiff described how a downturn in his work led to him approach the defendant for work:
“In about August 2017, I commenced working with Astro Painting Pty Ltd (“the Defendant”) as a Painter. I understand that Bahram Peyro is the owner of the Defendant business. I operated under an ABN (41 35 82 60 281), and Mr Peyro paid my wages. My work duties generally involved painting houses and factories with Mr Peyro.”[3]
[3]Plaintiff’s Court Book (“PCB”) 11
12Pausing at this early stage, the plaintiff’s evidence in his first affidavit reveals the first of many confusing pieces of evidence in these proceedings. On the one hand he says he commenced working for the defendant, but then on the other he says he operated under an ABN (which suggests a sub-contract arrangement) before saying that the defendant paid him wages
13There is no dispute that during 2017 the plaintiff and the defendant were introduced to each other and flowing from that introduction was a discussion about the meatworks job. But, from here on, the plaintiff and defendant part company as to what, if any, arrangements were made for painting work and in particular the meatworks job, after the initial contact.
14In short, the defendant said he was asked to use his contacts to obtain work for the plaintiff, which the plaintiff would then undertake via his own business/ABN. The defendant described the arrangement in his oral evidence as one where he was acting as the middleman.[4] Yet, in his first affidavit the defendant said of the meatworks job that he was prepared to “try and do some work and see how I would go” and that he “contacted the plaintiff to see if he could do this work” and that “we had not made a formal arrangement as to how we would share the proceeds of the work”.[5]
[4] Transcript (“T”) Lines (“L”) 21-23
[5] DCB 7 at [9]
15Regarding the meatworks job the thrust of the defendant’s case was that he effectively asked the plaintiff as a fellow self-employed painter to give him a hand with the job.
16The plaintiff, on the other hand, said the defendant was his employer, and he was his worker, with a verbal agreement that the defendant would pay him a daily wage. He was not operating an independent trade or business whilst working for the defendant,[6] notwithstanding the evidence in his first affidavit that he “operated under an ABN”.
[6]Second affidavit of the plaintiff, PCB 43
17One thing is clear. Whatever the parties understood the arrangement between themselves was to be, if in fact there was an understanding, there was no objective record of it, such as a written confirmation by way of an employment agreement, wage records, or a sub-contract agreement. It is perhaps not surprising that in the setting of such an informal arrangement, that recollections may vary.[7]
[7] To borrow a phrase from HRH Elizabeth II
18In that context, to determine what the arrangement was between the parties involves an assessment of a body of conflicting affidavit and oral evidence, much of which is unreliable.
The plaintiff suffers injury at PJ Meats
19One fact not in dispute is that, on 4 September 2017, the plaintiff fell from a ladder whilst painting the outside of the lunchroom at the meatworks (“the accident”). Mr Papa’s evidence is that he saw the plaintiff up the ladder shortly before the accident and suggested he use a scissor lift that was at the meatworks and as he had used “in the days before”.[8] A fact also not in dispute is that when he fell, the plaintiff was using a ladder that belonged to the defendant.[9].
[8] DCB 286 at [9]
[9] T125, L13-14
20The first documented evidence by the plaintiff of his arrangement with the defendant and how the accident occurred was provided in a statement made by him (“the statement”) dated 15 January 2018.[10] In the statement he said:
[10]DCB 255
“15. I worked as a painter with Bahram who told me where to meet him to paint each day. On the weekends we painted factories and during the week we painted houses. It was just Bahram and me who painted, no other employees. I can’t remember where the addresses are of the places I have painted, but I remember one house was in Essendon. Sometimes during the week day we also painted factories. The days the factory was not open I also painted on a public holiday.
16. The factory where I had my injury where I fell off the ladder I worked on weekends and sometimes during weekdays as well. My Supervisor/boss was Bahram Peyro.
17. When Bahram needed me to work he would call me, text me or tell me on the spot when and where we were working together next. . Bahram and I would meet at the place we were painting at on the day and Bahram would instruct me on what needed to be done that day. I could not enter the place to work until Bahram arrived. I met Bahram through a friend of mine.
18. My typical day as a painter was to paint, roll, brush and cut external and internal walls of buildings. As I said Bahram had no other painters working for him just the two of us.
19. I worked a full 7 days of the week, Monday to Sunday. I commenced work daily at 8.00 a.m and finished at 4.30 p.m. No days off. I had 15 minutes for breakfast and 30 minutes for lunch.
20. On the day of my work-related injury of 4 September 2017 it happened at about 3.30 p.m at P J Meats, 73 High Street, Thomastown because it was the finishing time for the employees at the factory.
21. Bahram was there to meet me at 2.30 p.m and the owner of the factory was there too, I don’t know his name. Bahram told me to paint the top section of the wall using the ladder. The location of where I painted was inside the factory, as you enter on the right side there are steps which up to an office.
22. Bahram told me to use the ladder and he adjusted the ladder by opening it; extending it and placing it against the wall. He told me to climb up and paint I did not receive induction training onto the worksite by Astro Painting or P J Meats.
23. At 2.30 p.m on 4 September 2017 was my first job for the day. I climbed up the ladder and I was carrying a brush and a pot of paint in a greyish colour. I was painting for one hour, maybe a little less before I fell. I was standing on run two or three, it was the run on the ladder before the last run located at the top of the ladder. I was painting underneath the metal platform at the top area of the stairs, the metal section.
24. Suddenly the ladder slid, and I fell. When I lost balanced my left leg got locked in between the sliding part of the ladder, I saw my leg was stuck when I was on ground. My left hip, wrist and left temple hit the ground. I tried to move and I realised I couldn’t. My leg was very painful and numb like it wasn’t my leg.
25. I injured my left wrist and thigh. I now have a metal rod in my wrist and platinum rod is also connected to my hip.
26. I fell a distance from the ladder to the ground approximately 5 to 6 metres onto the concrete.
27. Bahram and the factory owner came over to help me and one of two workers were also there. They all came over, Bahram told me not to say to the ambulance that I fell from the ladder, they told me to say I fell from the steps. Bahram and the factory owner took the ladder away and hid it. Again, cameras can show you this footage.
28. Bahram and the owner told me get up and go with them to the hospital, so the ambulance does not have to come. They told me it is better to say the accident happened outside rather than inside. But when they tried to get me up I was so much in pain they could not get up. I was semi-conscious and I crying in pain.
29. The factory owner told one of the employees to call the ambulance. A worker called the ambulance and then the ambulance came. I couldn’t tell the ambulance man what had happened as I could not properly comprehend what to say.
30. I heard Bahram lie as he told the ambulance man that I fell from the third step of the staircase. My wife Lili told me Bahram called her at 4 p.m and also told her I fell from the third step of the staircase. There are four cameras in the factory and you can check to see that I fell from the ladder.”
21The next explanation of how the accident occurred was provided by the plaintiff in his first affidavit, where he succinctly said:
“On or about 4 September 2017, I was painting at the PJ Meats factory at 73 Might Street, Thomastown in the State of Victoria (“the premises”). I was painting while standing on a fully extended sliding ladder (“the ladder”), when the ladder slid out and I fell (“the incident”). I believe that Mr Peyro was meant to be holding the ladder.”[11]
[11]PCB 11
22The defendant’s first version of the accident is contained in his affidavit sworn 7 May 2021.[12] He said he did not witness the accident as he was in the carpark at the meatworks when the plaintiff fell off his ladder. This raises an early credit issue as to why he would be in the car park at the meatworks if he was not involved in the job, an issue he explained when giving oral evidence as because he has a bad mental and physical situation “sometimes I need to get out and spend time with friends”.[13]
[12] DCB 7
[13] T137, L16-18
The claim for statutory benefits
23The plaintiff suffered serious physical injuries to his left arm and left leg because of the accident. He has not worked since then. Although it was not conceded, the defendant does not suggest that the plaintiff is now anything other than totally and permanently incapacitated for suitable employment.
24Following the accident, the plaintiff lodged a WorkCover claim (“the claim”) with the defendant. The claim was accepted by Gallagher Bassett (“the Agent”) as the relevant WorkCover agent of the Victorian WorkCover Authority (“VWA”), by letter dated 24 January 2018.[14]
[14] PCB 162
25The defendant engaged Mendis and Gibson Lawyers (“Mendis”) to dispute the decision to accept the claim. By letter dated 31 January 2018 (“the letter”), Mendis wrote to the VWA as follows:
Re: Astro Painting and Decorating (ABN 16068404154) and Ismail Javi Mechanike
“Outlined below are the reasons for the objection of Astro Painting and Mr Bahram Peyrow against the Acceptance of claim for compensation of Mr Ismail Javi Mechanike as employee.
1. The employer Astro Painting has no employees working for them.
2. The claimant Ismail Javi Mechanike is not an employee as is an independent contractor.
3. As an independent contractor, the claimant performed his professional tasks under his own instruction without obtaining instructions from Astro Painting.
4. The independent contractor is solely responsible for his tax obligations and has a registered Australian Business Number (Business name: Pro Elite Painters, ABN 41358260261).
5. As an independent contractor he needs to organise his own Work Cover Insurance for himself.
For the above reasons, on behalf of Astro Painting it is argued that the claimant is a sub-contractor and not an employee.
Should you have any further inquiries please do not hesitate to contact me. (sic)”[15]
[15]DCB 264
26In the letter the defendant asserted that he did not employ employees and did not have Workcover insurance to cover employees. Those assertions are, at least in part, supported by the objective evidence that the claim was processed by Worksafe/VWA pursuant to the scheme for uninsured/unregistered employers.[16]
[16] DCB 98
27Nevertheless, despite the ‘protest’ by the defendant, the decision to accept the claim was then maintained and the plaintiff was paid WorkCover benefits, including weekly payments, medical expenses and an impairment lump sum, until a subsequent decision was made by the Agent to terminate the claim. The subsequent ‘change of heart’ and the justification for accepting and then rejecting the claim is set out in an affidavit from Mr Peter White, Chief General Counsel for the Agent, in an affidavit sworn 12 May 2021.[17] At the end of the day there is no estoppel created by the initial acceptance of the claim, but the affidavit of Mr White does set out some of the background to the claim and how the defendant initially refused to speak to the Agent and that it was only after the claim was accepted that he arranged for Mendis to send the letter.[18]
[17] DCB 10
[18] DCB 14
The nature of these proceedings
28As part of the prosecution of his entitlement to benefits pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), the plaintiff made a “serious injury” application pursuant to s325. That application was rejected on behalf of the defendant, and the plaintiff commenced a proceeding seeking a determination of “serious injury”.
29During the plaintiff’s “serious injury” proceeding, the defendant raised as the real issue whether the plaintiff was a “worker”. Then, by notice dated 7 May 2021, the Agent, on behalf of the defendant, terminated the plaintiff’s entitlement to benefits effective 9 June 2021 on the basis that he was not a “worker” under the Act and/or did not sustain an injury arising out of, or in the course of, employment.[19] The plaintiff then issued a further proceeding challenging the termination of statutory benefits essentially because he asserted at all relevant times he was a “worker” within the meaning of the Act.
[19]PCB 191-192
30As a result, there are now two proceedings before the Court. In proceeding number CI-20-04250, the plaintiff seeks a determination that he has suffered a “serious injury”, either by way of physical injury to the left arm, or physical injury to the left leg. He seeks the leave of the Court to commence a common law proceeding for both pain and suffering and pecuniary loss damages.
31In the related proceeding number CI-21-02127, the plaintiff seeks a determination that he is a “worker” entitled to benefits pursuant to the Act.
Relevant legislative provisions
32Section 39(1) of the Act provides as follows:
“Entitlement to compensation
(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation in accordance with this Act.”
33As is plain, the Act only provides a scheme of compensation in respect to someone who is a worker.
34In addition, s327 of the Act provides:
“Actions for damages—serious injury
Subject to this Division, a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury.”
35If the plaintiff is a “worker”, then he is entitled to benefits pursuant to the Act, but he must also comply with the “serious injury” provisions before he can commence a common law proceeding.
The common law test of ‘worker’
36The parties agreed that the common law test is to be applied to determine whether the plaintiff is a worker.
37The parties agreed the relevant common law test is as set out and discussed in Elazac Pty Ltd v Shirreff.[20] The Court in Elazac said:
[20][2011] VSCA 405
“… Whilst earlier authorities often regarded “control” as the determinative factor in deciding whether someone was an employee or an independent contractor, later authorities have recognised that control (or, more particularly, the right to exercise control) is only one of a number of possibly relevant factors (albeit an important one) in determining the issue. Modern authority is to the effect that it is the totality of the relationship between the parties which must be considered. Relevant factors in determining the nature of the relationship between a person who engages another to perform work and the person so engaged include:
(a) the degree of control which the former can exercise over the latter;
(b) whether what is being supplied is the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services);
(c) whether or not the person engaged can set their own hours of work;
(d) the method of payment (and, in particular, whether payment is determined by hours of service or output or production);
(e) whether or not income tax is deducted and holiday pay or long service leave or superannuation paid;
(f) whether or not the person engaged employs employees and/or conducts his business in partnership;
(g) whether or not there is a power to delegate (send someone else to perform the work); and
(h) whether or not the person engaged considered the relationship as one of independent contractor.
Further, whilst earlier authorities supported the proposition that if a person engaged had more technical or specialist skill than the person who engaged him, then the person engaged was more likely to be an independent contractor, more modern authority recognises that it is relatively commonplace to employ employees who have particular technical skills or expertise that are not possessed by those employing them. The fact that a person engaged to perform work has particular expertise no longer, of itself, provides any great support for a conclusion that that person is an independent contractor.”[21]
[21]Elazac Pty Ltd v Shirreff (supra) at paragraphs [30]ꟷ[31]
38More recently, in Eastern Van Services Pty Ltd v Victorian Workcover Authority and Anor Tate, Kyrou and Niall JJA, confirmed that the common law test applied to a determination of “worker” under the Act. The Court in Eastern Van Services described the approach at common law as requiring a multi-factorial approach of weighing various indicia, where control is only one, albeit important, factor in the relationship.[22]
[22] Eastern Van Services Pty Ltd v Victorian Workcover Authority and Anor [2020] VSCA 154 [36]
39The application of the relevant legal principles in these proceedings is no easy task, where much of the evidence is obscured in a shroud of mist, caused by the unreliability of the evidence from both the plaintiff and the defendant. Where the evidence is visible, it does not all point one way.
Credit
40Before proceeding further with an examination of the relevant evidence, and to put that evidence in context, it is necessary to return to briefly discuss the credit of both the plaintiff and the defendant.
41The defendant submitted that an important aspect is the credit and reliability of the plaintiff as a witness. This is a case where there is a black and white distinction between the evidence of the plaintiff and the evidence of the defendant, and the Court should prefer the evidence of the defendant who gave his evidence in a straightforward way and consistently denied there was an employment arrangement.[23]
[23] T152, L6-14
42But, in response the plaintiff submitted that it was the defendant’s evidence that was implausible. Senior Counsel for the plaintiff, in colourful terms, submitted that the question to be asked rhetorically was “why did the invalid pensioner buy the paint… why did the invalid pensioner bring his ladder to the job? We say it is apparent this job was that of the invalid pensioner”.[24]
[24] T178, L1-18
43I shall deal with specific credit issues in these reasons as appropriate, but at the outset I record that I was not particularly impressed with either the plaintiff or the defendant as witnesses of truth.
44The plaintiff was frequently argumentative and non-responsive to questions put to him. He gave unconvincing explanations of several matters, including apparent discrepancies in his tax returns and was vague about several factual matters in dispute. Aspects of his evidence were unreliable. It was ultimately submitted on his behalf that while aspects of the way he gave his oral evidence was “irritating” that did not mean an adverse credit finding should be made against him. I accept that this proceeding is not a familiar process to him and that he has language barriers as evidenced by the fact that he required an interpreter. So, I accept that the way he gave evidence was at times “irritating” which would not translate to an adverse credit finding. But, in my view, his evidence went beyond “irritating” to unreliable and implausible in several aspects.
45But, equally, the defendant, although presenting as the more calm and less “irritating” witness, gave what I consider to be unsatisfactory and at times implausible evidence. Aspects of his evidence lacked credibility considering the limited objective facts that do exist. For example, amongst other things, he was at the meatworks and he provided the ladder. All of that tends to the conclusion that his evidence that he was a middleman, helping a friend out, for his own mental health, lacks credibility.
46Bearing in mind it is the plaintiff who bears the overall onus of proof, each of the plaintiff and the defendant gave unreliable evidence about key facts in dispute.
Jobs before PJ Meats
47The evidence is unclear as to when the plaintiff first undertook work with the defendant. In his first affidavit he says he commenced in about August 2017.[25] In his second affidavit he says he was employed from approximately 1 August 2017 to 4 September 2017.[26]
[25] PCB 11
[26] PCB 42 at [7]
48In the second affidavit the plaintiff says he contacted the defendant for work, the defendant arranged the meatworks job, dealt with the customer and he was his worker.
49I have already set out, in full, the statement made by the plaintiff on 15 January 2018, which goes into considerable detail about previous work. A summary of the statement is that the plaintiff said he worked for the defendant on weekends painting factories and during the week they painted houses, and while he could not remember addresses, he remembers one house in Essendon. He said it was work seven days per week.
50In sworn answers to the defendant’s interrogatories, the plaintiff said there was a verbal agreement for such things as where to meet and the work that needed to be done, but, in answer to a specific interrogatory about the number of days and dates he worked for the defendant, he answered, “I am unable to say precisely”.[27]
[27] PCB 39-40
51In his oral evidence the plaintiff gave unconvincing evidence of earlier jobs with the defendant. He said it was about a month he had been working for the defendant, roughly. He worked Saturdays and Sundays and the defendant would tell him where he wanted him to work. He said they worked sometimes on houses and sometimes on factories.[28] Later on he referred to working in houses that the defendant had the contract to paint and when the factory was quiet, they would go to the factory to paint – a reference I take to mean at the meatworks. He described painting buildings in Essendon and South Morang.[29] He said those other jobs were not completed by the time he was injured.
[28] T66, L10-T70, L16
[29] T95, L19-T95, L5
52Broadly, the plaintiff gave evidence that the defendant had a lot of work and he would still be working for him if he had not been injured.[30]
[30] T117, L17-20
53On the other hand, the defendant disputed the plaintiff’s evidence about days and jobs worked before the meatworks. In his affidavit sworn 7 May 2021[31] the defendant described referring a job to the plaintiff to paint a carport, which ended badly when the plaintiff damaged the client’s fence and did not get paid, an event which the plaintiff denied had occurred in his evidence. In his affidavit he said he was approached by PJ Meats in September 2017 and the job was commenced on 3 September 2017 and “was a three-day job”.[32] He said further that the two of them quoted the job (which does not sit well with the evidence of the Directors) and had bought the paint together, which the plaintiff on the other hand denied in his evidence.
[31] DCB 7
[32] DCB 10 at [9][10]
54In a further affidavit sworn 27 September 2021[33] the defendant corrected his earlier evidence and said he now thought that the meatworks job commenced approximately three and a half days before the plaintiff was injured.
[33] DCB 304
55The defendant was cross examined about the plaintiff doing other jobs for him. He disagreed that the plaintiff had performed other work for him.[34] He said it was not true that the plaintiff started working for him on 10 or 12 August 2017 and had undertaken work in Essendon and at South Morang. But later on he said he had in fact referred two other jobs to the plaintiff before the meatworks job, but he could not recall the times and dates of that.[35]
[34] T125, L17-20
[35] T140, L5-12
56In the context of the meatworks job, the defendant was asked during cross examination the question at the heart of this proceeding, namely whether the plaintiff working for him. He was asked―
Q. “Mr Mechanike was working for you to do the job that you had quoted to PJ Meats, wasn't he?---
A. Well, he was working for himself but because of the special situation that he was in, he asked for my help and I helped him as much as I could, and I put the time and the energy in to help him.
Q. I suggest rather than helping him, you were helping yourself by continuing to quote to businesses when you did not have an ABN and you were on the invalid pension?---
A. It was only one job and it was PJ Meats, and the rest I gave the quote and other people went and did the jobs.”[36]
[36]T138, L28–T139, L7
Rate of pay, taxation, days worked
57The plaintiff’s evidence was that he was to be paid $250 per day of work with the defendant. That is really the extent of his evidence of the terms of his “employment” arrangement.
58There was no evidence from him that there was ever a discussion with the defendant about the deduction of taxation, or of holiday pay and the like. There was no evidence that the plaintiff ever provided the defendant with a tax file number. Crucially, the plaintiff at no time, either in his written or oral evidence, suggested that he had discussed those usual employment arrangements with the defendant. There is no documentation at all relevant to this issue that might be expected when someone starts ‘work’ for an employer.
59In cross examination, the plaintiff said he had been working at the meatworks for approximately 10 to 15 days prior to being injured and the defendant agreed to pay him $250 per day, with those wages to be paid weekly. However, he did not get paid weekly.[37]
[37]T66, L13–20
60In his sworn answers to the defendant’s interrogatories regarding the rate of pay, he gave slightly different evidence that “I had a daily rate which was approximately $250 per day”. Further, in his answers to the defendant’s interrogatories, the plaintiff gave evidence that the defendant gave him $500 cash prior to his injury and a further $1,500 after the injury.[38]
[38]PCB 39–40
61In the statement (made in 2018), the plaintiff said that the defendant took his bank details “so he knew where to deposit my wage”, but that he did not get issued with payslips. He said the arrangement was that he would be paid $250 a day and “I don’t think Bahram owes me any money for my work”.
62Pausing, the plaintiff was cross-examined extensively on his bank statements. The cross-examination revealed that when operating his own business, the plaintiff deposited cash payments into his business account. He was cross-examined about the source and amount of those payments and how the bank statements could not be reconciled with what was disclosed in the taxation returns. On a simple comparison of the bank statements with the taxation returns, there appeared to be an under-reporting of his business income for taxation purposes. There was further cross-examination about amended taxation returns and whether they had been created to improve the rate of pay for the purposes of the claim, which he denied. Ultimately, the defendant submitted that the inaccurate taxation returns was a further credit mark against the plaintiff.
63Returning to the cross-examination, the plaintiff gave evidence that during the first week of work the defendant gave him $500 cash “and then I worked until I fell. After I fell, $500 was deposited into my bank account and the rest was not paid”.[39]
[39]T87, L19–25
64The issue of the payment of the $500 is, in my view, an important piece of evidence. It was not dealt with by the defendant in his initial affidavit. However, in his further affidavit, after having had the benefit of the plaintiff’s oral evidence on this topic, the defendant set out the total payments he made to the plaintiff and that he paid “the sum of $500 cash prior to injury”.[40] Notwithstanding the manner in which he came to give the evidence in his further affidavit, during cross-examination the defendant when asked about paying the $500 while the plaintiff worked for him, said “I can’t remember when was the $500 come from but I do pay him because he’s asking to help him for money”.[41]
[40] DCB 305 at [3]
[41] T130, L30-31
65It is agreed that the plaintiff was paid $500 cash on some date before the accident. There were then further payments made after the accident. Apart from the $500 cash paid prior to injury, a further $1,500 was deposited into his account after injury, and then another $1,300 was deposited into his account on 20 December 2017.[42]
[42]T67, L17–27
66The plaintiff went on to say in cross-examination that he was owed a total of $6,000 for his work with the defendant and so (allowing for what had been paid) another $3,000 was still outstanding. He said he repeatedly asked for that outstanding money. He said to the defendant “Give me my wages” and the defendant’s answer was “I will deposit it into your account”.[43] Obviously that evidence does not sit comfortably with what he said in answer to interrogatories, or in the statement and I do not accept it.
[43]T68, L1–9
67During cross examination the plaintiff ‘changed his tune’ from what he had said in the statement regarding earlier work at other factories. In dealing with questions about work with the defendant and the alleged rate of pay for such work, he said that “I worked with Mr Peyrow on that factory, no other factory, and I worked in three houses”.[44]
[44]T71, L20–22
68All up the defendant made irregular payments to the plaintiff. Based on the defendant’s evidence, which on this point I find more persuasive than the plaintiff’s, the probability is that before the accident the job at the meatworks had been in progress for the 3 days as asserted by the defendant and not the 10 to 15 days as asserted by the plaintiff. The fact that $500 was paid before the accident suggests there was in fact an arrangement for a daily rate of $250 as claimed by the plaintiff and that he was paid for the first two days of that job. If, in fact, the parties had not arranged for the plaintiff to be paid for the meatworks job, as the defendant said in his first affidavit, then it is unexplained why he paid $500 before the accident and I do not accept his evidence that it was an act of kindness by him because the plaintiff asked for money.
69There is no other useful evidence about rates of pay, days worked and the like. The plaintiff’s partner swore an affidavit on 11 May 2021[45] but her evidence is confined to the consequences to the plaintiff from his injuries. If in fact pre-injury he had been working seven days per week for a month or so, including 10 to 15 days at the meatworks, then that is something it might be expected she could confirm from her own knowledge. The only other evidence in some way relevant to this topic is the vague evidence form Mr Papa about the defendant arriving onsite to finish the job and having a younger person to “assist him” but otherwise is silent as to how long the job took.[46]
[45] PCB 47
[46] DCB 286
Control
70The evidence from the Directors is that they approached the defendant to do the painting at the meatworks. Payments were made to the defendant, albeit using an old invoice from the defendant. There was no suggestion that they ever had the plaintiff’s ABN or were ever advised to make payments direct to the plaintiff.
71The Directors refer to the defendant having someone assist him, but vague as it is, the impression from their evidence is that the defendant was “on the tools” when the painting jobs were undertaken at the meatworks. That is consistent with him supplying the ladder from which the plaintiff fell and his own evidence of giving the job a go and seeing how he went.
72There is also no doubt that the defendant was involved in quoting for the job. He says the plaintiff was also involved, but again that is contrary to the evidence from the Directors who do not describe any direct contact with the plaintiff. Mr Papa apparently didn’t even know the plaintiff’s name.[47]
[47] DCB 286
73There is no dispute that the defendant paid for the paint that was needed for the job at the meatworks. He says that the plaintiff went with him to purchase the paint, which the plaintiff denies. At the end of the day, not much turns on this conflict in the evidence. The defendant paid for the paint, which suggests that he was involved in deciding what paint to buy and how much was needed. For completeness I note the defendant during cross examination about other jobs he referred to the plaintiff was asked why, if he was just an invalid pensioner, would he buy the paint for this job, which I understood to be a reference to the meatworks job (there is no evidence of him ever buying paint for the plaintiff for any other job) and he said “I helped him and after that he finished the job and I help him, he paid the money back” and that “I lent him the money and they said when the job’s complete we will refund the money back”.[48] I do not accept that the defendant lent the plaintiff money and/or bought paint for him for any job. I do not accept the plaintiff repaid money to the defendant for the paint bought for the meatworks job. It is an example of an attempt by him to downplay his involvement in the meatworks job.
[48] T140, L15-23
74Next, obviously, the plaintiff would not have been painting at the meatworks unless he had been informed by the defendant of the job and asked (in whatever capacity) to assist. The strong inference from all of the evidence is that the defendant did tell the plaintiff when the job was to be commenced and what was required.
75Having considered the totality of the evidence, I agree with the submission of the plaintiff that it was the defendant’s job. The fact is that he determined what paint and equipment was required and when the job was to be undertaken. There is no evidentiary basis to conclude that the plaintiff could have hired other people to do the job or that he could have delegated it to someone else. In fact, it was the defendant who arranged for the assistance he needed for the job, namely the plaintiff. In my view the defendant was in control of the meatworks job.
76As should already be obvious, the key factual dispute then narrows to be the terms of the arrangement for the plaintiff to provide that assistance to the defendant and whether the plaintiff was doing the work as an independent painter or in circumstances where he can be described as a “worker” within the common law test.
Who is Reza?
77An issue that assumed some prominence during the plaintiff’s oral evidence, was whether he knew a man named Reza. The issue of “who is Reza” arose initially in the defendant’s first affidavit where he said:
“6. I believe I met the Plaintiff in this proceeding in about 2017 via Iranian friends. He was looking for work as he wished to start a family. He asked for help to get work as he knew I had contacts from my time as a painter.
7. I told the Plaintiff I could not work as I had cancelled my ABN. The Plaintiff asked me to use my contacts to obtain work, and he would then do the work via his own ABN. I believe the Plaintiff was performing painting work for a man named ‘Reza’ at this time.
8. In about August 2017 a former client had asked me to paint a carport in Essendon. I spoke to Reza and asked if the Plaintiff could do this job. I referred the job to the Plaintiff and he did it. It was about half a day of work. Unfortunately the Plaintiff damaged the client’s fence with his vehicle and subsequently did not get paid for this work.
9. In September 2017 I was contacted by a former client at PJ Meats in Thomastown to perform some painting work at their factory. I was prepared to try and do some work and see how I would go. I contacted the Plaintiff to see if he could do this work. We quoted the job together and went to buy the paint together. I believe the job was worth $4,200 and was about a three day job. We had not made a formal arrangement as to how we would share the proceeds of the work.” [49]
[49] DCB 7 at [6] – [9]
78In his second affidavit sworn 27 September 2021, the defendant named Reza Moradi as the man he was referring to and who ran a painting business and with whom he believed the plaintiff was working as a painting sub-contractor in August 2017.[50]
[50] DCB 304
79The defendant’s evidence of the man named Reza was put to the plaintiff during cross examination. He initially denied that he was working for Reza, but then said he didn’t know if he was.[51] He was pressed on this topic and asked, “can you tell us if you knew a man called Reza?”. His answer was “I do not know such a person”.[52]
[51] T72, L18-24
[52] T74, L1-3
80He was then cross examined about entries in bank statements recording payments from “Mr Mohsen Rezghd” and whether that related to work done for ‘Reza’.[53] I then asked him whether he knew anyone who is referred to as Reza, and he said “Yes, I know a Reza and I have worked for him a long time ago, not during that period” and that he worked for this man in 2015 and his full name is Rezza Jamali, but referred to as Ross.[54]
[53] T74, L10-16
[54] T76, L25-27
81Eventually, the plaintiff said that Mr Jamali ran a business called Armstrong Painting, for which the plaintiff had provided a few invoices allegedly for work he had done for Armstrong Painting. Mr Jamali was also a painter. But the plaintiff said he did not know the ‘Reza’ that the defendant was referring to in his evidence.[55]
[55] T80, L31
82The totality of the plaintiff’s evidence about ‘Reza’ was unconvincing and unsatisfactory. After initial denial, he eventually conceded that he knew a man named Reza, who he worked for at Armstrong Painting in 2015, but he did not work for Reza in 2017 and did not know the Reza that the defendant referred to.
83On this point, I prefer the evidence of the defendant as to how he met the plaintiff and initially referred work to him. It is the more logical and consistent version. The plaintiff’s initial denial of knowing anyone named Reza and then his subsequent explanation of knowing a different Reza, but not the Reza the defendant referred to, was more than “irritating” and lacked credibility.
84The mystery of ‘Reza’ sharply highlights that the plaintiff’s evidence was frequently unsatisfactory and lacked credibility. But ultimately, apart from credit, that evidence does not assist in understanding what the relationship was between the parties when painting at the meatworks.
The other evidence
85That is the extent of the relevant evidence. A lot of the other evidence, especially the oral evidence, was more to do with issues such as the inaccuracy of plaintiff’s tax returns, his bank statements, and his allegation that the defendant tried to ‘cover up’ the circumstances of his fall. While that evidence is broadly relevant and I have considered it, including in respect to assessing credit, and it is part of the factual matrix, it is not particularly relevant for the issues that are to be determined.
The parties’ submissions
86I have already discussed much of the submissions of each of the plaintiff and defendant, but for completeness I will set out and summarise the final submissions of each of the plaintiff and the defendant. Broadly, those submissions related to credit and the resolution of the factual disputes in the evidence. Perhaps not surprisingly, the parties’ submissions to some extent mirror each other.
Defendant’s submissions
87The defendant commenced his final submission with a discussion about the credit and reliability of the plaintiff as a witness and the evidence he had given.[56]
[56]T149, L25ꟷ29
88The defendant submitted that as the plaintiff had underestimated his 2017 taxable income he was “starting behind the eight ball” to a degree. In addition, the defendant submitted that the plaintiff was argumentative, non-responsive and an unreliable witness. In a case where the defendant submitted there was a black-and-white distinction between the evidence of the plaintiff and defendant, the unreliability of the plaintiff’s evidence was such that the Court should:
“… prefer the evidence of Mr Peyrow and that he gave his evidence … in a straightforward way, and has consistently denied that the arrangement was such that the plaintiff was employed by him”.[57]
[57]T152, L10ꟷ14
89Next, the defendant highlighted the denial that there was an agreed daily fee to be paid to the plaintiff and various other disagreements on other matters that arose in the evidence.
90The defendant submitted that his version should be preferred, he did not have an ABN, and it was going to be the plaintiff’s ABN that was going to be used for the meatworks job. He never had employees and there was no intention for the plaintiff to be an employee in what was a rather loose arrangement.[58] There were no documents to record any “employment” arrangements and in that context, Senior Counsel for the defendant submitted that:
“… Now, we're supposed to believe that Mr Peyrow was going to take on the responsibilities of an employer, and therefore he has said that he wasn't insured and that he therefore, if he had done that, he would have been looking at deducting taxation, he would have been looking at insurance and he would have been looking at perhaps more strict supervision of this man, and we say, as Mr Peyrow said, he is an experienced man who ran his own business for a number of years and successfully for a number of years, very successfully in regards to painting, and that there is more credibility in what Mr Peyrow has said in the case, and his presentation in the witness box when cross-examined by Mr Richards, we say that the questions about him working while he had a disability support pension, he says well, he didn't get a lot of the money and he said he gave a lot of it to the people that he got the money for to do the jobs.”[59]
[58]T174, L27
[59]T175, L13ꟷ30
91The case turned on a factual dispute and it was submitted the Court should prefer the defendant’s evidence and submissions on the evidence to resolve that factual dispute.
The Plaintiff’s submissions
92On behalf of the plaintiff, his Senior Counsel commenced final submissions, all guns blazing, when he said:
“… We start with what might be - it might sound like the start of a joke, it might be a riddle, but we say it is riddle that the defendant's case does not answer. The question we asked rhetorically is why did the invalid pensioner buy the paint? We say it is absolutely implausible to think he is working as an invalid pensioner and buys the paint. In the same vein why did the invalid pensioner bring his ladder to the job? We say it is apparent this job was that of the invalid pensioner, Mr Peyrow. It was his job, his quotation had been given for it, he bought the paint, he brought the paint to the job in his Ford Falcon station wagon. He brought his ladder to the job, he said he had left his ladder at the job, he is present at the job throughout the time the job was being done. It was him who collected the run from the customer, albeit he would say well, at the time Mr Mechanike was in hospital, and so he was.”[60]
[60]T178, L1ꟷ18
93Next, the plaintiff pointed to the evidence of control that the defendant had over him in respect to the performance of the painting. In respect to the meatworks job, this was a classic example of the defendant exercising control over him in the course of his work, with the defendant supervising, controlling, and directing. That, it was submitted, meant that the indicia all point to the fact that this was a situation of control of a master/servant relationship.
94Continuing a theme, the plaintiff submitted:
“We ask also rhetorically, well, how is it that an invalid pensioner continued to have work available to him in 2016 and 2017 when he says he stopped working in 2015 and gave up his ABN in 2015? Again, it seems to be an ongoing pattern that Mr Peyrow had of getting work and then employing others to do it. Why also would be the invalid pensioner, Mr Peyrow, to ensure the job is completed? It should not be his problem, it is not his job, it is for Mr Mechanike.
So we say no, that is not likely. The whole thing looks on the overview of the whole case of this man having taken a job and employed another, Mr Mechanike, to do the job for him and we say alongside him with Mr Peyrow doing some work, Mr Mechanike doing some work.”[61]
[61]T181, L16ꟷ30
95Next, in the alternative, the plaintiff submitted that if he was not a “worker” pursuant to common law principles, then he was an independent contractor, such that he was “deemed” to be a worker for the purposes of the Act.
96Pausing here, I do not accept that the plaintiff is a “deemed” worker. The submission as put in the alternative was done without any reference to applicable legal authority other than an interpretation of s.9 of Schedule 1 of the Act. It is enough to reject this aspect of the plaintiff’s submissions by noting that on a plain reading of that provision – which is what was called in aid on his behalf – there is no evidence of any contractual arrangement between the plaintiff and the defendant for the provision of services and he does not otherwise satisfy the deeming provision.
97Next, the plaintiff submitted that it was the defendant’s evidence that was unsatisfactory and implausible. The plaintiff’s versions of events, it was said, was far more credible than that of the defendant, and should be preferred.[62] While the way the plaintiff gave evidence might have been a “bit irritating” at times, nevertheless he gave a good account of himself and his credit was not impugned in cross-examination.
[62]T181, L29
98In short, in respect to the factual dispute, the plaintiff submitted that his evidence should be preferred, and he had satisfied his evidentiary onus to demonstrate that he was a “worker” in a common law sense.
Factual findings
99Piercing the shroud of mist in these proceedings to reveal what the arrangement was between the parties is no easy task. Both the plaintiff and the defendant were unreliable witnesses and extracting the truth from fiction is difficult. This is not a proceeding in which it is easy to resolve the key factual dispute.
100Senior Counsel for the defendant hit the nail on the head when he described the arrangements between the plaintiff and the defendant as “loose”. Nevertheless, the objective evidence, such as it is, tends to reveal a conclusion that the arrangement was not one where the defendant was a middleman.
101Whatever the arrangement was to paint the lunchroom at the meatworks, the defendant was actively involved in it. The inescapable conclusion is that there must have been something in it for him, namely a financial benefit, as he intimated in his first affidavit. I conclude that he was working, in his own business, at the meatworks when the plaintiff was injured, notwithstanding his status as a pensioner.
102However, the fact that the defendant was working in his own painting business does not, of itself, mean that the plaintiff was his employee.
103Of course, it is the plaintiff who has the overall evidentiary burden of proof to establish that he was a “worker”.
104By way of summary and before assessing the evidence as determined when weighing various indicia as to whether the plaintiff was a “worker”, I find that –
(i) The defendant had prior to 2015 operated his own painting business. In 2015 he cancelled his ABN and went onto an invalid pension;
(ii) Notwithstanding his status as a pensioner, the defendant had contacts in the painting industry, and he was approached to perform painting jobs from time to time;
(iii) In 2016 Mr Lotesto, on behalf of PJ Meats, engaged the defendant to paint the inside of the lunchroom at the meatworks. Approximately a year later, the defendant was engaged once again to perform painting at the meatworks;
(iv) When the defendant undertook painting at the meatworks in 2016, he had someone to assist him;
(v) The plaintiff was a self-employed painter, but after a downturn in work, he approached the defendant in approximately August 2017, via Iranian friends, about painting work;
(vi) At the time the parties were introduced to each other, the defendant had been painting for another self-employed painter named ‘Reza’;
(vii) Shortly before commencing the meatworks job in 2017 the defendant approached the plaintiff to assist him;
(viii) The defendant quoted for the meatworks job, determined the paint that was needed and purchased the paint with his own funds. In addition, he provided the ladder that the plaintiff was using when he fell;
(ix) There was no formal arrangement as to the assistance that the plaintiff was to provide for the meatworks job, other than an agreement that he was to receive $250 per day;
(x) As of 4 September 2017, the plaintiff and defendant had been painting at the meatworks for three or four days;
(xi) Prior to the meatworks job, the plaintiff had undertaken other work arranged by the defendant, being the Essendon carport job, but that was not an arrangement to assist the defendant;
(xii) I reject the plaintiff’s evidence that he had been working for the defendant seven days per week at houses and factories, including 10-15 days at the meatworks, for roughly a month before the accident.
(xiii) The defendant was in control of the PJ Meats job;
(xiv) The defendant had arranged to invoice the Directors for the meatworks job, but he had not arranged to use the plaintiff’s ABN for that purpose;
(xv) It was an arrangement for the plaintiff to provide his skill and labour as a painter to assist the defendant with the meatworks job;
(xvi) Before the accident, that is prior to 4 September 2017, the defendant paid the plaintiff $500 cash for work he had done with the defendant at the meatworks.
Summary and weighing indicia
105Unlike the factual scenario in Eastern Van Services where the Court was required to apply the relevant legal principles to a mostly agreed set of facts, these proceedings involve the application of agreed legal principles to hardly any agreed facts and no agreed facts on the core issue of whether the plaintiff was a “worker”, further compounded by the general unreliability of the evidence.
106Turning then to weighing the various indicia, firstly in respect to control, prior to the meatworks job, the plaintiff was engaged in his own painting business before a downturn in work. He was then asked by the defendant to assist with the job at the meatworks. There is no evidence that he was going to invoice the defendant directly for the work he performed at the meatworks.
107Before the meatworks job, the defendant did not employ employees and did not have WorkCover insurance, consistent with generally not being an employer. Apart from the fact of painting at the meatworks, there is no proper evidentiary basis to conclude that there was to be an ongoing employment relationship. At best it was a casual arrangement for the meatworks job.
108Next, the defendant was asked to do the meatworks job by the Directors. He arranged it, purchased the necessary paint, provided the ladder, and arranged for the plaintiff to assist him while he was working on that job. The defendant was actively involved in it – including on the day the plaintiff was injured, and he was to be paid for the job by the Directors. If he really was just a “middleman”, there would have been no need for him to be at the meatworks at all. His evidence that he was just there for his own mental health and while otherwise doing the plaintiff a favour is simply unbelievable and I reject that part of his evidence.
109In short, the meatworks job was the defendant’s job. He exercised control generally over both the job and the plaintiff while painting at the meatworks.
110Accordingly, I am satisfied that there is evidence to conclude that the indicia of control are made out as a starting point for the consideration of the common law test of “worker”. This is not determinative factor for a determination whether the plaintiff was a “worker” but it is an important one. Indeed, without ‘control’ it is hard to see how the test of “worker” could be satisfied.
111Having concluded that the defendant did exercise “control” it is necessary to move next to look at other relevant factors.
112The next relevant and important factor for these proceedings is that there is no evidence (and the defendant does not really suggest otherwise) that the plaintiff had the power to further delegate the work or engage other people for the meatworks job. There is no evidence that the plaintiff ever employed anyone to help him before or after the meatworks job.
113A corollary from the conclusion that the plaintiff was responsible only for the provision of his own skilled labour is that it was the defendant liaised with the Directors as to when and how the work was to be completed at the meatworks, including the start date and time.
114To this stage there are several factors that tend to a conclusion that the plaintiff was in fact a “worker”. But a relevant factor that tends against such a conclusion is that there was no arrangement to deduct income tax, or for the plaintiff to accrue annual leave or to be paid superannuation. There is no evidence that the plaintiff ever supplied the defendant with his tax file number. There is no reliable evidence that there was to be an ongoing employment relationship after the job at the meatworks.
115Further, as mentioned, there is no objective evidence of the defendant ever employing employees. I consider it likely that any other jobs done with other people were likely to be a similar loose arrangement to the meatworks job. However, that does not mean that those other loose arrangements were not capable of being characterised as arrangements to engage “workers” but beyond that would be speculation. It does confirm that the defendant did from time to time engage in work and engaged other persons to assist with that work, whether he considered himself an employer.
116Next, in weighing relevant factors, I conclude that the plaintiff understood he was doing a job with the defendant. The failure to make any attempt at all to provide tax details, or to document the usual employment terms and conditions, suggests he simply expected to do the job with the defendant, for the agreed daily rate, which would be deposited into his bank account.
117I also consider that in weighing various factors, it is also necessary in the broad sense to look at the credit of the parties.
118Starting with the credit of the plaintiff, bearing in mind he has the overall onus of proof, in the overall assessment of all relevant factors to consider, his evidence was unreliable and unconvincing in many aspects and at times far from compelling for a conclusion that he was the defendant’s worker. But, despite concerns about much of his evidence, in particular his embellishment of days and jobs worked with the defendant, on the key factual matters such as how he came to be at the meatworks, who was in control of it and the $500 payment before he was injured, his evidence is objectively made out and in fact supported by much of the defendant’s evidence, as well as the limited evidence form the Directors.
119Further, much of the defendant’s evidence does not stack up. What is stark is his claim that he was simply a middleman in circumstances where that is simply not borne out on the evidence. The meatworks job was the defendant’s job and as mentioned, the payment of the $500 to the plaintiff before he was injured supports a conclusion of a daily rate of pay.
120Critically, when weighing factors, in his first affidavit the defendant gave evidence of intending to work at the meatworks and of asking the plaintiff to see if he could also do this work. His subsequent oral evidence that he was a “middleman” and his attempt to paint a picture that this was the plaintiff’s job is implausible considering the whole of the evidence, including the evidence of the Directors.
121In my view, unwittingly or not, the defendant engaged the plaintiff on a casual basis as a “worker” to work for him at the meatworks.
Conclusion
122In summary, on balance, I consider the loose arrangement was for the plaintiff undertake casual work to assist the defendant with painting at the meatworks, for $250 per day of work. It was otherwise the defendant’s job.
123I doubt very much that the parties turned their minds to what, if any, legal relationship they were creating as between themselves for the meatworks job. But, having weighed all the relevant evidence, including the evidence of control, in my view intentional or not, the circumstances here are that of employer and employee for the duration of the meatworks job.
124I am, therefore, satisfied that the plaintiff was a “worker” by reference to the common law test and in particular by considering the evidence as determined and weighing the indicia as per the approach in “Elazac”.[63]
[63][2011] VSCA 405
Serious injury
125There is no need to say much about the plaintiff’s injuries and as already indicated the defendant did not seek to agitate whether the plaintiff had suffered a “serious injury”.
126However, for completeness, I have read and considered the medical material relied on by the plaintiff. A short summary of his injuries and impairment consequences can be provided by referring to the opinion of his treating orthopaedic surgeon Mr Arash Riazi. In a report dated 13 May 2021[64] Mr Riazi diagnosed orthopaedic injuries suffered in the accident as including an un-displaced fracture of the left olecranon (treated non-surgically), a left scaphoid fracture (internally fixed), and a sub-trochanteric fracture of the left femur (internally fixed). Mr Riazi opines that the injuries to the left upper limb and left lower limb each impose significant restrictions on the plaintiff’s ability to engage in employment or most social, domestic, and recreational activities.[65] There are other treating and medico-legal opinions to the same effect.
[64] PCB 207
[65] PCB 209
127In my view the serious orthopaedic injuries suffered by the plaintiff are such that he is now unemployable either by reference separately to the injury to his arm or the injury to his leg. Each of those injuries are such in isolation to produce an inability for the plaintiff to return to work. Each of those injuries in isolation produce a “very considerable” pecuniary loss consequence and a “very considerable” pain and suffering consequence. Given the way this proceeding was conducted, it is unnecessary to say any more other than I have read and considered the medical reports tendered into evidence. It is clear from those reports that the plaintiff has suffered a “serious injury”.
Result
128For the reasons given, in respect to proceeding No CI-21-02127, I am satisfied that the plaintiff has discharged his evidentiary onus to establish that he was a “worker”. Accordingly, he is entitled to relief from the Court on the basis that he is a “worker” and I will hear from the parties as to the appropriate form of orders.
129Next, upon the determination that the plaintiff is a “worker”, in respect to proceeding No CI-20-04250, I am satisfied that the plaintiff has suffered a “serious injury” in respect to both loss of earnings consequences and pain and suffering consequences. Accordingly, leave is granted to the plaintiff to commence a common law proceeding for both loss of earnings and pain and suffering damages for injury suffered by him in the course of his employment with the defendant on 4 September 2017.
130I shall hear from the parties as to any further consequential orders and cost orders.
- - -
0
2
0