Robs Extreme Construction Pty Ltd v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Robs Extreme Construction Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Anor [2025] NSWPIC 47
APPLICANT:	Robs Extreme Construction Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
SECOND RESPONDENT:	Hassan Saleh
MEMBER:	Gaius Whiffin
DATE OF DECISION:	14 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (the 1987 Act); claim by uninsured employer pursuant to section 145(3) alleging that it is not liable in respect of compensation payments made by the first respondent to the second respondent; consideration of oral evidence, statement evidence, medical reports and other treatment records, claim correspondence, and factual material; consideration of which party bears the onus of proof; consideration of witnesses’ credit; consideration of the importance of contemporaneous medical records; consideration of the caution to be exercised with treating medical records; consideration of the extent of the injuries sustained by the second respondent; consideration of the second respondent’s correct pre-injury average weekly earnings (PIAWE); consideration of the second respondent’s current work capacity between 3 March 2021 and 15 August 2023; Malco Engineering Pty Ltd v Ferreira, Nguyen v Cosmopolitan Homes, Watson v Foxman, Raniere Holdings Pty Limited v Daley, Davis v Council of the City of Wagga Wagga, Mason v Demasi, Winter v New South Wales Police Force, A1 Granny Flats v Workers Compensation Nominal Insurer, Drca v KAB Seating Systems Pty Ltd, Onassis v Vergottis, Paric v John Holland (Constructions) Pty Limited, and Paric v John Holland (Constructions) Pty Limited considered; Held – the applicant has failed to discharge its onus of proving that the second respondent did not suffer injuries to his neck, back, right shoulder, right hip, and right knee; second respondent suffered injury to his neck, back, right shoulder, right hip, right knee, and right ankle pursuant to sections 4 and 9A; the applicant has failed to discharge its onus of proving that the first respondent paid weekly benefits compensation to the second respondent pursuant to an incorrect PIAWE of $808.50; the applicant has failed to discharge its onus of proving that the second respondent had current work capacity during the period between 3 March 2021 and 15 August 2023; as a result of the second respondent’s injury on 18 November 2020 he had no current work capacity during the period between 3 March 2021 and 15 August 2023; the second respondent was therefore entitled to weekly benefits compensation in accordance with sections 36(1) and 37(1); entitlement being calculated by the first respondent in accordance with a PIAWE of $808.50; as a result of the second respondent’s injury on 18 November 2020 he required medical treatment costing $242.50; the applicant was not insured in respect of its liability to compensate the second respondent in accordance with the 1987 Act; the amount of $91,724.88 has been paid by the first respondent which reflects the valid and legitimate entitlements of the second respondent to compensation with respect to his 18 November 2020 injury; pursuant to section 145(3) the applicant is liable in respect of the payment made of $91,724.88 and it is to pay the first respondent that amount.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has failed to discharge its onus of proving that the second respondent did not suffer injuries to his neck, back, right shoulder, right hip, and right knee on 18 November 2020. 2. On 18 November 2020, the second respondent suffered injury to his neck, back, right shoulder, right hip, right knee, and right ankle, pursuant to ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act). 3. The applicant has failed to discharge its onus of proving that the first respondent paid weekly benefits compensation to the second respondent pursuant to an incorrect pre-injury average weekly earnings (PIAWE) of $808.50. 4. The applicant has failed to discharge its onus of proving that the second respondent had current work capacity during the period between 3 March 2021 and 15 August 2023. 5. As a result of the second respondent’s injury on 18 November 2020, he had no current work capacity during the period between 3 March 2021 and 15 August 2023. During that period, he was therefore entitled to weekly benefits compensation in accordance with ss 36(1) and 37(1) of the 1987 Act, his entitlement being calculated by the first respondent in accordance with a PIAWE of $808.50. 6. As a result of the second respondent’s injury on 18 November 2020, he required medical treatment costing $242.50. 7. The applicant was not insured in respect of its liability to compensate the second respondent in accordance with the 1987 Act, regarding his injury on 18 November 2020. 8. The first respondent has compensated the second respondent in relation to his entitlements, as described in paragraphs 5-6 above. The first respondent has made a total payment of $91,724.88 in this regard. It has issued a valid notice dated 5 September 2023 to the applicant, in accordance with s 145(1) of the 1987 Act, requiring the applicant to reimburse that amount to it. 9. The amount of $91,724.88 paid by the first respondent in this regard reflects the valid and legitimate entitlements of the second respondent to compensation with respect to his 18 November 2020 injury. The payment made was both necessary and appropriate. 10. Pursuant to s 145(3) of the 1987 Act, the applicant is liable in respect of the payment made of $91,724.88. 11. The applicant’s request for an order from the Commission pursuant to s 145(3) of the 1987 Act, that it is not liable to reimburse the amount of $91,724.88 to the first respondent, is as a result refused. 12. The applicant is to pay the first respondent the amount of $91,724.88. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Hassan Saleh (the second respondent) is 33-years-old, and was working for Robs Extreme Construction Pty Ltd (the applicant) as a labourer, when he sustained injury on
18 November 2020.
It is conceded by the applicant that during the second respondent's employment with it, it was not maintaining in force a policy of insurance in respect of its liability to the second respondent for compensation, in accordance with the Workers Compensation Act 1987 (the 1987 Act).
As a result, the second respondent claimed compensation from the Workers Compensation Nominal Insurer (the first respondent) with respect to his injury, in accordance with s 140(1) of the 1987 Act. The first respondent made payments of compensation in this regard.
By way of a notice (the reimbursement notice) in accordance with s 145(1) of the 1987 Act (dated 5 September 2023), the first respondent has required the applicant to reimburse to it an amount of $91,724.88 (the reimbursement amount), being in relation to compensation payments that it has made to or in respect of the second respondent with regard to his injury.
The applicant seeks a review of the reimbursement notice and has lodged a Miscellaneous Application (the Application) with the Personal Injury Commission (Commission), seeking a determination as to its liability in respect of the reimbursement amount, in accordance with s 145(3) of the 1987 Act.

ISSUES FOR DETERMINATION

The applicant does not dispute the validity of the form or service of the reimbursement notice. It also does not dispute that the second respondent injured his right ankle on
18 November 2020 in accordance with ss 4 and 9A of the 1987 Act.
However, it disputes the extent of the second respondent’s current work capacity during the period when the first respondent paid him weekly compensation benefits (between
3 March 2021 and 15 August 2023 - according to the reimbursement notice), and it also disputes the second respondent’s pre-injury average weekly earnings (PIAWE) as calculated by the first respondent. It further disputes that the second respondent injured any body part other than his right ankle on 18 November 2020.
As a result, the parties have agreed that the following issues are in dispute before the Commission:
(a) apart from injuring his right ankle on 18 November 2020, did the second respondent also then sustain injuries to his right knee, right foot, right lower extremity, right hip, groin, lower back, lumbar spine with radiculopathy, middle back, thoracic spine with radiculopathy, neck, cervical spine with radiculopathy, right shoulder, and right extremity, as well as anxiety and depression;
(b) what is the correct calculation of the second respondent’s PIAWE - alleged by the applicant to be $450 per week, and alleged by the first respondent to be $808.50 per week, and

(c) what was the extent of the applicant’s current work capacity between
3 March 2021 and 15 August 2023, in relation to his right ankle injury, as well as in relation to any other injuries found to have been sustained on
18 November 2020.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The dispute was first listed for conciliation/arbitration before the Commission on
19 March 2024. On that occasion, Mr John Gaitanis of counsel appeared for the applicant, instructed by Mr Yousif. Mr Stephen Harris, solicitor, appeared for the first respondent. Luke Morgan of counsel appeared for the second respondent, instructed by Mr Bell. The applicant was also represented by its sole director, Robert Sader (Sader). The first respondent was also represented by its senior collections officer, Michael Butcher. The second respondent was present and supported by his sister, Lamis Saleh. All of these persons also appeared at all subsequent listings before the Commission.
A resolution of the dispute was unable to be conciliated on 19 March 2024, and the dispute proceeded to an arbitration hearing. The applicant advised the Commission as to the issues which were not in dispute (see paragraph 6 above), and all parties agreed upon the issues that were in dispute (see paragraph 8 above).
The applicant then sought leave to cross-examine the second respondent, and the second respondent sought leave to cross-examine Sader and Hanna Baccouni (Baccouni). Leave was granted to both the applicant and the second respondent in this regard, as there were significant inconsistencies in the statement evidence provided by the second respondent, Sader, and Baccouni. I considered that the relevant cross-examination would assist me to understand the evidence better. I also considered that it was in the interests of justice for all parties to allow the relevant cross examination, in order that they were able to present their arguments effectively.
Oral evidence was then given by the second respondent but it was unable to be completed on 19 March 2024.
The dispute was next listed for arbitration hearing on 21 May 2024. The second respondent completed his oral evidence on that date, and Sader also then gave oral evidence. However, due to interpretation difficulties raised by both the applicant and the second respondent, Baccouni was unable to then give his oral evidence with accuracy. Due to those difficulties, it was agreed between all parties that the evidence then given by Baccouni would not be relied upon.
The dispute was as a result further listed for arbitration hearing on 22 July 2024, when Baccouni gave his oral evidence with the assistance of an Arabic interpreter (Nabila Jouni – CPN9HB60M).
It was then agreed between the parties and the Commission that, considering the broken nature of the arbitration hearing and the need to review the recordings of the oral evidence given, it was appropriate for all parties’ submissions to be in writing. A timetable was set for the provision of the written submissions, which was unfortunately lengthy due to the availability of counsel.
I am grateful for the written submissions provided by the applicant, by the second respondent, and by the applicant in reply. I note that the first respondent chose not to provide written submissions and advised the Commission accordingly in writing, on 15 October 2024.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination - no objection being taken to their admission by any party:
(a)    the Application and attached documents;
(b)    the first respondent’s Reply (first Reply) and attached documents;
(c)    the second respondent’s Reply (second Reply) and attached documents;
(d)    the applicant’s Application to Admit Late Documents dated 27 February 2024 (applicant’s first AALD) and attached documents;
(e)    the applicant’s Application to Admit Late Documents dated 15 May 2024 (applicant’s second AALD) and attached documents - save for pages 1-54 of it inclusive;
(f)    the first respondent’s Application to Admit Late Documents dated 13 March 2024 (first respondent’s AALD) and attached documents;
(g)    the second respondent’s Application to Admit Late Documents dated
12 March 2024 (second respondent’s AALD) and attached documents, and
(h)    a diagram (see paragraph 189 below) depicting the site of the second respondent’s accident on 18 November 2020 - prepared by Baccouni during the oral evidence given by him.

Oral evidence

As noted, oral evidence was given by the second respondent, Sader, and Baccouni.

Second respondent’s statement evidence

The second respondent has provided three signed statements. The first was signed on
8 December 2022 and is found at page 11 of the first Reply.
The second respondent says that prior to his accident on 18 November 2020, his regular treating general practitioner was Dr Sarian. He mentions being treated for shoulder complaints in July 2011 and gastroenterological issues in November 2016.
Prior to the accident, he had completed a Bachelor of Communications degree at the University of Western Sydney, following which he had worked with the Commonwealth Bank.
He commenced working with the applicant as a labourer on 21 September 2020, following a conversation with Sader (who he was introduced to by a friend of his mother’s, Emine Turkmen (Turkmen)) on 15 September 2020. He says that at the time he “had been thinking about working in construction for some time”. He wanted to become a builder and intended to pursue courses during 2021. He says in relation to his employment with the applicant:
“I usually worked Monday to Friday 6:30am to 3:30pm, sometimes 4:30pm and sometimes 5:30pm. I was paid $250.00 a day, but I didn't get paid extra if we worked longer hours. I was agreeable with this because I was eager to gain experience in construction. He would pay me Friday and that was usually $1,250.00. I had never had a job in construction previously…I was working for around 45 hours most weeks and was not doing other work while I was employed by Rob…I was paid cash. I at no point gave Rob my ABN, contrary to what he has said. I suspect I wasn't on the books. I raised this with Rob. Rob said I would be put on the books by Rob, but by the time I had the injury I suspected it never happened. He later confirmed he had no insurance either.”
He says that usually, he would drive to Baccouni’s house each day. He would then be driven to Sader’s house. Sader would then drive both him and Baccouni to the relevant job site. He outlines five job sites where he worked with the applicant at Bangor, Tempe, Queenscliff, Erskineville, and Balgowlah. His statement also includes photographs that he took while he was working at each job site. The photographs were taken on 22 September 2020, 28 September 2020, 6 October 2020, 7 October 2020, 8 October 2020, 9 October 2020, 12 October 2020, 13 October 2020, 14 October 2020, 15 October 2020, 19 October 2020,
21 October 2020, and 17 November 2020. The statement further includes a copy of a credit card receipt for lunch which he purchased on 22 October 2020 at a café near the Queenscliff job site.
The second respondent provides details regarding the (essentially unskilled labouring) work that he performed at some of the job sites, and in relation to those sites he advises:
(a)    Bangor site – bathroom and toilet renovations – “worked on that side most days for approximately a week and a half” from 21 September 2020;
(b)    Tempe site – bathroom and kitchen renovations, as well as the construction of an aluminium awning at the front of the house, the fitting of sensor lights, and the insertion of downpipes for the roof’s guttering - worked at the site for “approximately 2 weeks on and off” from 28 September 2020, and
(c)    Queenscliff site – kitchen, bathroom and laundry renovations – worked at the site for 2-3 weeks from around 6 October 2020, while also working at the Tempe and Bangor sites.
The second respondent’s statement does not provide details regarding the work performed at the Erskineville and Balgowlah job sites (although he provides their addresses), and is in fact silent in its chronology between 22 October 2020 and 17 of November 2020, save for advising that Sader informed him that there was no work available for him on
25 October 2020 and 26 October 2020.
The statement then describes the second respondent’s accident on 18 November 2020, which was at the Erskineville job site. The job involved the demolition of a bathroom, and the second respondent describes his role as:
“I was lifting gyprock walls which we had been knocked down which still had the tiles attached to them. I was then carrying them down a level to the ground floor and out in the foyer. I then went down more steps into another carpark floor. I then walked out onto the street through a roller door where the truck was parked. I would throw the gyprock with tiles onto the truck.”
He then describes his accident in the following terms:
“I was descending the steps at the time from a small courtyard to get into the carpark. I was carrying multiple boards with tiles attached to them out of the building. As the load was very cumbersome and difficult to hold, one of the gyprock boards with tiles attached slipped down and struck my right knee and then down onto my right ankle. I then fell back onto the stairs with the remaining sheets in my hands. They then fell on top of me, striking my right shoulder and injuring my low back, middle back, groin, right hip and the right knee and right ankle, jarring my neck.”
Sader did not witness the accident as he was “inside on the phone”. Baccouni was following the second respondent at the time of the accident but the second respondent says that he does not know if Baccouni witnessed the accident. He called out following the accident, following which Baccouni and later Seder arrived. They took the gyprock boards off him, Baccouni wrapped his right ankle in Baccouni’s shirt to attempt to stem the bleeding, and they then carried him to Sader’s truck. Sader drove him to the emergency department at Royal Prince Alfred Hospital and helped him limp in there. He says that Sader did “all the talking” at the hospital.
He was admitted to the hospital for four days and underwent right ankle surgery. He says that the focus of his hospital treatment was his right ankle, but he is adamant that “I did not say I was not otherwise injured”, confirming that in the accident, he also injured his right knee, right groin, right hip, lower back, middle back, neck, and right shoulder.

Following his discharge from the hospital, he attempted to make an appointment with
Dr Sarian, but was unable to do so until the beginning of 2021 as the doctor was not available. He was however able to seek treatment for his right ankle from Dr Swid, on
15 December 2020 and on 14 January 2021. He also attended the out-patients department at Royal Prince Alfred Hospital on 4 December 2020 and in late January 2021.
He finally consulted with Dr Sarian on 27 January 2021, and he confirms that he reported to the doctor not only his right ankle injury, but also injuries to his right knee, right foot, right hip, groin, lower back, middle back, neck, left upper limb, and right shoulder.
Dr Sarian later issued him with a certificate of capacity (confirming that he was unfit for work) on 3 March 2021. He sent that certificate of capacity to Sader on 8 March 2021. Sader then visited him and explained that he was uninsured, and “he asked me how we can sort this out without going through a claim”. Sader also suggested that he claim under “public liability”.
He then outlines his treatment for his injuries since March 2021:
(a)    ongoing regular consultations with Dr Sarian - involving the prescription of medication and the issuing of certificates of capacity regarding his incapacity for work;
(b)    referrals to radiology in relation to his right ankle, right foot, right knee, cervical spine, lumbar spine, and right shoulder in July 2021 - right ankle and right shoulder radiology was also conducted in November 2021;
(c)    consultations with Dr Popoff on 20 September 2021 and 29 November 2021, regarding his right shoulder;
(d)    a consultation with Dr Rosenberg on 23 September 2021, regarding his back;
(e)    consultations with Dr Della Torre on 5 October 2021 and 30 November 2021, and
(f)    the use of a crutch until around July 2021, and the use of a moon boot until November 2021 (when Dr Della Torre advised against its further use).
The second respondent finally summarises the extent of his symptoms as at the date when he signed his statement on 8 December 2022, as follows:
“The worst symptoms I suffer are pain in my right foot, my right toes and around my right ankle area as well as numbness and swelling in the right foot and toes and around the ankle area. The ankle joint is very stiff, and it is also stiff around the toes. My right groin area is very tender and painful. The pain in the hip is more above the hip and the bottom of the lower back, but radiates through the whole back and the hip region. The pain radiates down my lower limbs, more to the right. I also have pain and numbness in both lower limbs below the knee. I also have pain in the middle of my lower back and middle back, which has been getting significantly worse. In the right shoulder I have some restriction of movement my neck remains stiff...It is very painful for me to walk, since my right leg is very stiff. I also find it painful to drive, and only occasionally drive very short distances. As such I have been relying on my immediate family who I live with, and occasionally my friends, to do my shopping, buy me food and drive me anywhere that is further than a few minutes away…The pain in my back makes me unable sit up in a chair for long, so I spend most of my time at home lying down. I have not been able to work in any capacity. Psychologically I feel different and am often anxious.”
The second respondent’s second signed statement is found at page 1 of the second Reply. It is said to be dated 14 December 2023 although I was unable to find that date in the statement. The statement however refers to treatment undertaken by the second respondent up to 3 November 2023.
In many respects, the second respondent’s second statement is identical to his first statement, other than providing more details of injuries sustained by him prior to
18 November 2020, and providing an update regarding the treatment undertaken by him since he signed the first statement. The second statement also specifically refers to statements provided by Sader and Baccouni and maintains that:
(a) the second respondent worked with the applicant five days per week – rather than one or two days per week (as stated by Sader) or only 10 to 12 days over a 4 to 5 week period (as stated by Baccouni), and
(b) the second respondent was paid $250 per day – rather than $150 per day, as stated by Sader.
In relation to injuries sustained by him prior to 18 November 2020, the second respondent relevantly reveals:
(a)    treatment for right elbow complaints in 2010 following a football injury;
(b)    treatment for a left knee injury on 3 December 2010 following a slipping accident;
(c)    treatment for left shoulder dislocations in 2011, 2013 (while swimming), and 2019 (following a bicycle accident);
(d)    treatment for gastroenterological issues in 2016;
(e)    treatment for a “painful lump on my right hip” following a motor vehicle accident on 16 February 2017;
(f)    treatment for fractured ribs in 2018;
(g)    treatment for anxiety (relating to his work at the Commonwealth Bank) in 2019 and 2020;
(h)    treatment for right groin and right calf pain following a fall prior to 15 April 2020;
(i)    treatment for finger injuries on 3 July 2020, and
(j)    treatment for right scapular pain on 18 August 2020.
In relation to his treatment between 8 November 2022 and 14 December 2023, the second respondent relevantly reveals:
(a)    he continued to consult with Dr Sarian;
(b)    he was referred by Dr Sarian to Dr Rosenberg (in relation to his back), to Dr Zicat (in relation to his right hip and right knee), and to Dr Chang (in relation to his right ankle);
(c)    as a result of these referrals, he underwent radiology to his right foot and ankle, his right knee, his right hip, and his lumbar spine, and
(d)    he was referred to physiotherapy and Pilates – and it was suggested that he lose weight.
The second respondent’s third signed statement is dated 12 March 2024 and found at page 1 of the second respondent’s AALD. The statement provides a treatment update in that:
(a)    he consulted with Dr Chang again on 9 January 2024, when she recommended right ankle surgery to him – which he has not yet undertaken;
(b)    he underwent right shoulder surgery under Dr Popoff on 6 February 2024, and
(c)    he has consulted with a psychiatrist (Dr Kujic) on 3 October 2023 and on
12 March 2024 “in relation to my post-traumatic stress disorder due to the accident and the consequences the accident has had on me in terms of depression and anxiety, panic and lack of sleep”.
The statement otherwise only refers to a medical appointment arranged by the applicant for the second respondent with Dr Allen, and alleges the following:
(a)    the appointment lasted no longer than 10 minutes;
(b)    the doctor did not review any film in relation to the radiology undertaken by the second respondent – as the doctor wished to view the film in private, but the second respondent insisted on being present while the film was being viewed;
(c)    the doctor did not physically examine the second respondent’s right ankle;
(d)    the doctor did not question the second respondent in relation to any injuries other than his right ankle injury, and
(e)    the doctor accused the second respondent of being hostile and refusing to comply with his requests – the second respondent says however:
“I repeatedly said to the doctor that I was happy to do everything he asked and tried to assure him that I was trying. Despite a number of efforts reassuring him, he aggressively said, ‘Put your clothes on. We are done here’.”

Sader’s statement evidence

Sader has provided two signed statements. The first statement was signed on 25 May 2021 and is found at page 1 of the applicant’s first AALD. It seems that the statement was prepared by an investigator (Rodney Stephenson) before it was signed by Sader.
Sader explains that he is a director of the applicant, which has been an active company since 30 September 2010. It performs “small renovation jobs like bathrooms, kitchens and laundries and stuff like that mainly residential work”. It does not employ workers but hires workers when needed on a subcontract basis.
In relation to the second respondent’s work with the applicant, Sader says:
“Hassan Saleh commenced employment around mid September 2020 and was employed as a sub-contractor carrying out labour hire duties as directed. He was not allowed on the tools, he was just labour hire, he was interested in learning and once he learnt he could have done more, but you have to be qualified and he was just labour hire…He generally worked from 6.00am or 6.30am for an eight hour day. He worked only one or two days a week when needed. He worked no more than ten times over a period of a month…As a starter I was paying Hassan Saleh $150.00 per day. When he started we had a chat it was very informal he told me he was happy with $150.00 per day as labour hire. He did not work any overtime he was on a day rate. I paid him cash at the end of the day. I have no records of paying him, I asked him for invoices which he did not supply…I did not keep a record of days that Hassan Saleh worked, it was an informal agreement. He did not subcontract full time, he would come work for a day or two, then a week or two would go buy [sic] and he'd work for another day or two dependant if I had the work…Hassan Saleh worked no more than one or two days a week. He once worked three days in a week. He worked around ten days all up. I have text messages between me and him, they show me telling him there's no work tomorrow or me asking him if he wants to work. There was [sic] no emails just text messages.”
Apart from the lack of invoices, there was also no written contract between the applicant and the second respondent or any statement of duties. Sader says however that the second respondent “was working under similar conditions to Hanna Baccouni they are subcontracted as labour hire”. The second respondent had advised him of his ABN number, being 20 620 224 793.
Sader says that the second respondent “was lucky to work fifteen (15) hours per week” as it only took one or two days to strip a bathroom.
Sader identifies job sites where the second respondent worked for the applicant at Bangor and Erskineville, but is “not sure about any other sites”. He also identifies that the second respondent worked for the applicant on 24 September 2020, 8 October 2020, and
19 October 2020, but not on 25 October 2024 or 26 October 2020. He does not mention any other days of work or non-work, save for the date of the second respondent’s accident on
18 November 2020 at the Erskineville job site. He says that the job at the Erskineville job site involved the demolition and replacement of a bathroom, for which he had provided a quotation to the owners, which they accepted and signed. He says that he does not see any reason “for supplying the quote for works and dragging the client into this”.
He then says that both he and Baccouni witnessed the second respondent’s accident. He says:
“The townhouse had two levels where people lived downstairs and upstairs. Hassan Saleh walked from the bathroom which was upstairs, he walked downstairs to the entrance of the townhouse and then down another flight of stairs to the entrance to the carpark and then walked to the truck and placed the rubbish in the bin…When you come out of the townhouse, I was sitting in the courtyard area and I was on the phone. Hassan Saleh and Hanna Beccouni were moving the rubbish downstairs…Hassan Saleh was walking with one or two bits or villa board with tiles on them, he was holding them under one arm and holding them with one hand and from memory he had his phone or something else in his other hand. Hanna Beccouni was following Hassan Saleh and a piece of broken villa board which was no bigger than half a square metre, a piece of villa board broke off and it fell towards the ground, Hassan Saleh obviously using his reflexes tried to catch it with his foot and it cut his right foot.”
He says that following the accident, both he and Baccouni advised the second respondent to go to hospital as the second respondent might need some stitches, despite the second respondent saying “it’s nothing I can keep working”. He drove the second respondent to Royal Prince Alfred Hospital and says:
“I followed him into the Hospital and he was sitting down talking to the doctor. I asked him if he was OK and asked if he wanted me to call anyone which he told me, ‘I'm sweet, I'm fine you can go’…Apart from the injury to his right foot he had no other injuries, after the injury he walked himself to the work truck. He made no complaints of any injuries to his neck, back, hips or shoulder. He dropped something on his foot and that was the only injury.”
Sader says that the accident occurred in the courtyard area of the job site, which was a tiled open area. The couple of pieces of villa board being carried by the second respondent would have weighed no more than 5 to 10 kg, and the piece of broken ceramic tile that struck his foot was “no bigger than half a dinner plate”.
Sader describes the second respondent’s description of his accident as “a complete lie, one hundred percent a complete lie”.
Sader then says that the second respondent did not work for the applicant after the second respondent’s accident date. He received a text message from the second respondent on
8 March 2020 requesting his help and providing a certificate of capacity. He telephoned the second respondent and relays:
“He told me he was injured and he hurt this and hurt that. After hearing that I told him not a worry and see you later, I didn't like it when he began lying to me. I thought he was Ok until I received his text message. I then knew he was up to no good.”
Sader then provides a second signed statement dated 15 December 2023, which is found at page 16 of the applicant’s first AALD. In this statement, he relevantly:
(a)    corrects his first statement and advises that the second respondent was carrying gyprock boards rather than villa board when the second respondent’s accident occurred;
(b)    maintains that he only paid the second respondent $150 per day as the second respondent had no experience in the construction industry - in fact highly experienced labourers only earned approximately $200-$250 per day;
(c)    maintains that the second respondent did not work for the applicant five days per week, but now advises – “There may have been an occasion on a particular week or two where he worked 4 days but certainly not five. During the six weeks he worked with me, on average he would have worked three days per week”;
(d)    advises that even Baccouni did not work for the applicant full-time, but instead sometimes 2-3 days per week and sometimes 5 days per week;
(e)    advises that on the date of the second respondent’s accident, he had told the second respondent to carry one gyprock board at a time, but the second respondent ignored this instruction and carried more than one board at a time;
(f)    advises that the gyprock boards being carried by the second respondent on the date of the second respondent’s accident would not have weighed 40 kg, as that would be the weight of at least 10 or more gyprock boards, and it was “just physically impossible” for the second respondent to carry that type of load all the way from the bathroom to the car park;
(g)    confirms that Baccouni would have seen the second respondent’s “accident right in front of his eyes as he was walking directly behind Hassan”;
(h)    disputes that the second respondent needed to be carried to his truck following the second respondent’s accident – the second respondent was able to mobilise;
(i)    alleges that he did not answer any questions posed by medical staff at Royal Prince Alfred Hospital following the second respondent’s accident – the second respondent was alert, conscious, and aware of what was happening - the second respondent answered the questions - he was only at the hospital with the second respondent for about 10 minutes, and
(j)    confirms that while he was with the second respondent at Royal Prince Alfred Hospital, the second respondent did not complain about any other injury than the second respondent’s right ankle injury.
The statement also includes two photographs. The first photograph is of the courtyard at the Erskineville job site, which the second respondent and Baccouni had to go through in order to transport the gyprock boards from the bathroom to the car park, on the date of the second respondent’s accident. Sader confirms that the accident occurred in the courtyard, and has marked on the photograph where it occurred, as well as where he was sitting (on a concrete ledge) and talking on his phone, when it occurred. According to Sader, he took telephone calls outside because of the loud background noises inside, during demolition jobs.
My impression of the photograph is that the site of the accident marked by Sader would have been clearly visible to him from the seated position marked by him.
The second photograph is of the stairs where the second respondent alleges that the accident occurred. The stairs are confirmed to be leading from the courtyard to the car park. Sader describes the stairs as “a very large staircase” of about 15 steps, and as very steep (such that if the second respondent had in fact fallen backwards onto them, he would have “more likely than not” fallen all the way down the stairs and “sustained various other cuts and bruises all over his body and an ambulance would have been called to attend”).
My impression of the photograph of the stairs is that they are not unusually steep - there are nine steps to a reasonably sized landing and then another six steps to a larger landing, with another two steps to the ground.

Baccouni’s statement evidence

Baccouni has provided a signed statement dated 25 May 2021. It is found at page 24 of the applicant’s first AALD. Baccouni is Sader’s brother-in-law. It seems that the statement was prepared by an investigator (Rodney Stephenson) before it was signed by Baccouni. The signature of an interpreter (Claudia Elbrihi) is found on the final page of the statement, but there is no attestation clause in the statement identifying precisely what the interpreter interpreted to Baccouni or how it was interpreted to him.
For the 18 months prior to the signing of the statement, Baccouni had performed labouring duties for the applicant at various building sites on and off (“approximately two to three days per week as required”). He explains that both he and the second respondent were sub-contractors to the applicant. He was paid $20-$30 per hour (“dependant [sic] on the work”) by the applicant in cash.
He did not know any details of the payment arrangements between the second respondent and the applicant, but advises that the second respondent only worked one or two days per week – “about ten to twelve days for Rob Sader over four or five weeks”.
He explains that on the date of the second respondent’s accident, the second respondent was carrying out labouring duties which included taking rubbish from a bathroom being renovated down to the applicant’s truck. He cannot recall the address where the work was being carried out. He was also performing these duties, and he advises:
“I remember walking behind Hassan Saleh, he had left the bathroom carrying a small piece of villa board which had tiles attached. I was walking behind Hassan Saleh when he walked onto a verandah area. I saw him drop a piece of villa board and it landed on his right foot. He was carrying one or two pieces of villa board with tiles on it, he used his foot to try and stop it falling, it would have weighed about six kilograms…Hassan Saleh was in the verandah area and not on or near the steps at the time of his injury to his foot…I saw that he had hurt his right foot, there was a gash to the skin which started bleeding. He had no other visible injuries and did not complain of any other injuries.”

He says that he took off his shirt and wrapped the second respondent’s foot in it. He says that the second respondent did not seem concerned about having the second respondent’s foot treated, but Sader told the second respondent that the second respondent needed to go to hospital. The second respondent was able to walk to Sader’s truck himself, and Sader then drove the second respondent to hospital.
In relation to the second respondent’s version of how his accident occurred, Baccouni summarises:
“He was not going down the stairs at the time of the injury to his foot, he was only carrying one villaboard with tiles attached. That is not true, Hassan only hit his foot, he did not fall against the stairs and villaboards fall on him. He only got a gash to his foot…I am relying on my memory, to clarify at the time of his injury to his foot, Hassan Saleh was carrying one or maybe two pieces of villaboard with tiles attached, Hassan was carrying the villaboard against his chest, the board/s were not bigger than his chest.”

Other statement evidence

There are two signed statements in evidence from Turkmen. The first is dated 9 December 2022 and found at page 31 of the applicant’s first AALD. She describes introducing the second respondent to Sader on or around 15 September 2020 at her home, and Sader then advising the second respondent that “he had work available and that Hassan could start right away”.
Turkmen’s second signed statement is dated 2 February 2024, and found at page 32 of the applicant’s first AALD. She says that when the second respondent and Sader met at her home on or around 15 September 2020, they “came to an agreement” and “Hassan started to work for Robert”, but she provides no further details regarding the terms of this agreement.
Turkmen then advises that she visited the second respondent after his accident, and:
“I asked Hassan how the injury happened. Hassan stated that he was injured at work while working with Robert. Something fell on his right foot, causing a major cut. Also I remember that Hassan said he was taken to the hospital for treatment…I have seen him wearing the boot cam and limping for probably a year or more after the accident.”
Turkmen does not mention any other injuries suffered by the second respondent.
There is also a signed statement from Christina Hanna dated 26 February 2024 (found at page 97 of the applicant’s first AALD). She is a solicitor employed by the solicitors for the applicant and was involved in discussions with Dr Sarian regarding a Commission direction for production that the solicitors had served upon him. During those discussions, the doctor advised that he was waiting to discuss the direction with the second respondent before complying with it. Ms Hanna advises that the doctor eventually complied with the direction on 6 February 2024, but in relation to the records that he produced:
“The file is strictly related to the alleged injuries sustained in the work accident and only contains six consultation entries from 30 March 2022 onwards.”
Finally, there is a signed statement from the second respondent’s mother, Hiam Saleh, dated 12 March 2024 (found at page 6 of the second respondent’s AALD). She attended Dr Allen’s appointment with the second respondent on 25 January 2024, and she confirms that the second respondent’s statement regarding that appointment (see paragraph 41 above) “is true and correct insofar as it relates to my involvement”.
Otherwise, the statement briefly discusses the second respondent’s pre and post accident condition:
“Hassan was active before the accident. He used to like dancing, going to the gym and he was handy around the home with woodwork and general handyman activities. He was a very capable young man, who up until that stage worked in a bank…Hassan is very different since the accident and to my observation it has had a devastating affect [sic] on him physically, and his mood is significantly depressed.”

Other factual evidence

The applicant’s second AALD (from page 55) contains various text messages between the second respondent and Sader. Relevantly, they reveal:
(a)    the second respondent messaging Sader on 24 September 2020 with a list of items required - presumably in relation to a particular job;
(b)    the second respondent messaging Sader on 8 October 2020 with a list of items required – presumably in relation to a particular job;
(c)    the second respondent messaging Sader on 13 October 2020 with a piece of paper with certain dimensions written upon it;
(d)    the second respondent messaging Sader on 19 October 2020 with his bank account details;
(e)    the second respondent messaging Sader on 25 October 2020 with a telephone number;
(f)    messaging between Sader and the second respondent on 25-27 October 2020 regarding there being no work for the second respondent to perform on those days;
(g)    the second respondent messaging Sader on 3 November 2020 with some horse racing tips;
(h)    Sader messaging the second respondent on 22 December 2020 requesting a telephone call, and
(i)    the second respondent messaging Sader on 8 March 2021 with a certificate of capacity – and advising that he had not been able to work since his
18 November 2020 accident.
The second respondent’s compensation claim form to the applicant dated 20 March 2021 is found at page 106 of the applicant’s first AALD. It describes his accident on
18 November 2020 as follows:
“I was descending the steps at the time to get into the car park and I was carrying multiple boards with tiles attached to it out of the building when one of the gyprock boards with tiles attached slipped and struck my right knee and then down onto my right ankle. I then fell back onto the stairs with the remaining sheets in my hand which then fell on top of me striking my right shoulder and injuring my low back, middle back, groin, right hip and the right knee and right ankle with severe gash to my right ankle.”
Relevantly, the claim form also:
(a)    specifically identifies that the accident occurred at the Erskineville job site – and provides its address;
(b)    specifically denies that the second respondent had previously “had another injury/condition or personal injury claim that relates to this injury/condition”;
(c)    when asked regarding who witnessed the accident, the second respondent advises that Sader “attended after fall and took me to Emergency at RPA”;
(d)    advises that the second respondent had been employed full-time by the applicant as a labourer since 21 September 2020, and was paid cash by Sader for the work he performed, and
(e)    claims that the second respondent worked 45 hours per week for the applicant, and was paid $1,250 per week net.
The evidence otherwise includes:
(a)    correspondence from the first respondent to the applicant dated
22 September 2021 (at page 1 of the Application) advising that it had disputed the second respondent’s compensation claim in relation to his 18 November 2020 accident;
(b)    correspondence from the first respondent to the applicant dated 11 May 2023 (from page 3 of the Application) advising that it had now determined the second respondent to be a deemed worker of the applicant’s – and had therefore accepted liability for his compensation claim in relation to his 18 November 2020 accident – the correspondence advises that the applicant was an employer who should have held a policy of insurance for workers compensation as at
18 November 2020 but did not, and also determines the second respondent’s PIAWE to be $808.50 - the correspondence further describes the second respondent’s compensable injury as “injuries to neck, right shoulder, back, right hip, right knee and right ankle”;
(c)    the reimbursement notice (at page 7 of the Application) - which identifies that the first respondent had paid the second respondent $242.50 in medical expenses pursuant to s 60 of the 1987 Act (although the notice does not identify who the payment was made to, or what treatment the payment was for), as well as $91,482.38 in weekly benefits compensation for the period between
3 March 2021 and 15 August 2023 (payments made on the basis of the second respondent having no current work capacity, according to the annexure to the notice);
(d)    various taxation returns of the second respondent’s – the only relevant one being his 2021 amended taxation return (found at page 243 of the second Reply) which declares income received from the applicant (specific period not declared) of $9,250 in the 2021 financial year - the reason for the need to submit an amended return is stated as “the client forgot to report one salary income that was not reported by employer to ATO”, and
(e)    various Australian Business Register and Australian Securities and Investments Commission searches – which I accept establish that it was not the second respondent (but notably a person with the same name as him) that traded under ABN number 20 620 224 793.

Medico-legal reports

The second respondent relies upon a medico-legal report from Dr Bodel dated
5 January 2023, and found at page 46 of the first Reply.
The doctor examined the second respondent on 1 August 2022 and takes the following history of his 18 November 2020 accident:
“The injury occurred when he was taking out Gyprock sheets which still had tiles attached as part of the walls in this area. The floor was similarly tiled on waterproof ply and his injury occurred when he was lifting a sheet of this material weighing between 30 and 40 kilograms on his own and he dropped it on his right foot. He then fell down the stairs between the upper level where he was working and the ground level suffering injuries over a widespread area of the body.”
The doctor notes the second respondent’s right ankle treatment at Royal Prince Alfred Hospital, and later the radiology which was arranged for him by Dr Sarian on 3 August 2021 in relation to his cervical spine, thoracic spine, and lumbar spine. The doctor then notes his treatment with Drs Rosenberg and Della Torre.
In relation to the second respondent’s past medical history, the doctor only notes that he has “been previously quite well and not being treated for other illnesses”.
The doctor records the second respondent’s current complaints as involving his right foot and ankle, the lower part of his back, his neck and right shoulder, and his right knee. He records the second respondent’s current treatment as including taking medication and undergoing physiotherapy.
On examination, the doctor finds tenderness in the trapezius muscles at the base of the neck on the right side and guarding in that area; reduced range of neck flexion, extension and rotation; tenderness and guarding at the lumbosacral junction; issues with lower back flexion, extension, and lateral bending; no evidence of spinal deformity, nerve root irritability, or radiculopathy; restriction of shoulder movement and impingement in both shoulders but no instability; no restriction of elbow, wrist or hand movement; some right knee movement restriction, as well as right ankle movement restriction.
The doctor reviews radiological and other medical reports provided to him, and in relation to specific questions posed to him, advises:
“Mr Saleh suffered a serious injury principally to his right foot and ankle but also to the neck and the back, the shoulders and hips and knees as a result of the incident that occurred at work on 18 November 2020…The diagnosis here is the laceration of the tibialis anterior, the injury to the neck and the back, the right shoulder and the knees caused by this event that occurred at work on 18 November 2020.”
The doctor assesses the second respondent’s permanent impairment - 5% in relation to the cervical spine, 7% in relation to the lumbar spine, 6% in relation to the right upper extremity, 6% in relation to the left upper extremity, 10% in relation to the right lower extremity (18% lower extremity impairment in relation to the ankle and 10% lower extremity impairment in relation to the knee), and 3% in relation to scarring.
When asked in relation to the second respondent’s work capacity, the doctor opines:
“This gentleman has no current fitness for his pre-injury work as a builder’s labourer…For all intentional [sic] purposes he is totally and permanently incapacitated for work for which he has appropriate levels of education, physical fitness, training and experience…His prospects of returning to any form of paid work are very poor.”
The first respondent relies upon a medico-legal report from Dr Millons dated
29 September 2023, and found at page 55 of the first Reply.
The doctor examined the second respondent on 27 September 2023 and takes the following history of his 18 November 2020 accident:

“On 18^th November 2020, Mr Saleh was carrying multiple gyprock boards with tiles attached down the stairs and out of the building, which was an awkward lift and carry. As he was going down the stairs, one of the boards slipped and struck him on the right knee and then down to the right ankle, opening up a wound there. He lost his footing and fell backwards onto the stairs with the gyprock sheets in front of him. The sheets struck his right shoulder.”

The doctor records that the second respondent attended Royal Prince Alfred Hospital, where he complained not only about his right ankle, but also about his lower back, right knee, right hip, and right shoulder. He was still making these complaints when he first saw his general practitioner, Dr Sarian, in January 2021. He eventually had investigations in July 2021 in relation to his right foot and ankle, right knee, neck, back, and right shoulder. In this regard, the doctor records that the applicant being uninsured “seems to have slowed things down for a good while”, and also that the second respondent “did not take much action because of the COVID situation”.
The doctor then records the second respondent’s treatment from Dr Popoff regarding his right shoulder, from Dr Rosenberg regarding his back, and from Dr Della Torre regarding his right ankle and knee. The doctor also reviews radiological reports. He further notes that the second respondent has been treated by Drs Chang and Zicat, although the doctor did not review any reports from them.
The symptoms recorded by the doctor include:
(a)    continuing problems with the right ankle – the “ankle and foot go blue and cold”;
(b)    right leg swelling at the end of each day – requiring the second respondent to sit with his leg up;
(c)    pins and needles and numbness in the right foot;
(d)    ongoing pain and stiffness in the right knee and hip;
(e)    pain in the lower back which radiates into both lower limbs - the second respondent cannot kneel or squat, he can only sit for 15 minutes, he can only stand for 10 minutes, he avoids lifting, he finds bending difficult, and he cannot walk long distances;
(f)    pain down the right side of the neck and across the top of the right shoulder and into the right elbow;
(g)    stiffness and restriction of movement in the neck;
(h)    sleep disturbance, and
(i)    the second respondent no longer has any particular hobbies and otherwise “spends time lying on his back watching television or on the phone”.
The doctor conducts a thorough examination of the second respondent and records:
(a)    neck – no spasm, marked tenderness, and “range of movements around two thirds normal with pain and stiffness precluding further movement”;
(b)    right shoulder – no wasting around the shoulder girdle, tenderness anteriorly, painful rotation indicating some impingement, and some differences in flexion, abduction, external rotation and internal rotation when compared with the left shoulder, but not in extension or adduction;
(c)    general reduction in power through the right arm, as well as some reduction in sensitivity;
(d)    a limp favouring the right leg;
(e)    no convincing abnormal neurological signs in the right leg;
(f)    lumbar spine – no spasm, widespread tenderness, extension and lateral flexion around one third of normal range, and negative sciatic stretch tests;
(g)    the girths of the right thigh and calf were 1 cm greater than on the left;
(h)    full range of right hip movement – with only pain complaints “at the extreme”;
(i)    general reduction of power through the right leg;
(j)    right knee – no effusion, neutral alignment, tenderness around the joint lines but not beneath the patella, negative patellar friction test, restricted range of movement, and stable collaterally, and
(k)    right ankle – no swelling, numbness, scar tenderness, altered sensation, and some differences in inversion and eversion when compared with the left ankle.
The doctor then opines that the second respondent sustained a “significant injury” to his right ankle, and although he had a reasonable result from the repair of his tibialis anterior tendon, he still had a “somewhat irritable” right ankle. He also opines:
“He also maintains problems with his right knee, hip, right shoulder, back and neck from that time. Certainly he did apparently fall heavily onto his back on the stairs with a collection of gyprock pieces and attached tiles across the top of him. One would have thought that most of the injuries should have been soft tissue and with the passage of time, things should have improved.”
In relation to diagnoses, the doctor finds that as a result of the second respondent’s
18 November 2020 accident, he has sustained:
(a)    a “deep laceration on the front of the left ankle [should read right ankle] with partial division of tibialis anterior, subsequently repaired”;
(b)    “possible internal derangement left knee and left hip [should read right knee and right hip]”;
(c)    aggravation of degenerative change in the lumbar spine;
(d)    aggravation of degenerative change in the cervical spine, and
(e)    a significant right shoulder injury with evidence of labral tearing and possible instability – for which a right shoulder stabilisation procedure was reasonable.
Apart from the shoulder procedure, the doctor also recommends a “water-based/land-based exercise program”, and he hopes that the second respondent’s condition may improve once appropriate treatment has been undertaken. He finds the second respondent to be unfit for any work while awaiting this appropriate treatment, and to be only ever likely to be “suited to work of a light semi-sedentary nature now in an office-based environment”. He finds the second respondent to be permanently unfit for work as a labourer.
The doctor finally assesses the second respondent’s permanent impairment - 7% in relation to the cervical spine, 5% in relation to the lumbar spine, 8% in relation to the right upper extremity, 4% in relation to the right lower extremity (4% lower extremity impairment in relation to the ankle and 7% lower extremity impairment in relation to the knee), and 1% in relation to scarring.
The applicant relies upon a medico-legal report from Dr Allen dated 30 January 2024, and found at page 118 of the applicant’s first AALD.
The doctor examined the second respondent on 25 January 2024 and describes the second respondent as a “hostile attendee” who “cooperated poorly”. The doctor advises:
“His interview and assessment of the history was generally uncooperative and during the examination an attempt to assess the various joints was complicated by voluntary restriction in motion and poor cooperation…When the inconsistencies in examination were noted to him his cooperation deteriorated further and the examination was abandoned…Furthermore, he refused to allow me the opportunity to review his X-rays which he brought with him and insisted on taking them out of the room with him…Owing to the lack of cooperation a full examination could not be undertaken and the following report constitutes the total of the assessment available…The assessment was terminated by joint consent.”
The doctor only takes the following history of the second respondent’s 18 November 2020 accident:
“On the date in question, being 18 November 2020 he was at work when a piece of gyprock fell and lacerated the front of his right ankle.”

He records that the second respondent was taken to hospital, where no injury other than to the right ankle was noted. As a result:
“Mr Saleh subsequently claimed an injury to his back, neck, right shoulder and right knee for which he had some investigations in 2021. These are not injuries which are noted at the time of his initial assessment and are considered therefore entirely independent of the injury sustained which was a laceration to the right ankle.”
The doctor records the second respondent as having no past history of any medical condition other than Crohn’s disease.
The doctor then complains again about the second respondent’s failure to cooperate with a physical examination of him, and especially his voluntary restriction in range of motion. The doctor says that he abandoned the physical examination, but he does note:
(a)    the second respondent walked with a slow but normal gait;
(b)    the second respondent had full flexion of his neck when he looked down to the scales;
(c)    the second respondent was able to undress satisfactorily;
(d)    the second respondent’s scarring was “non-disfiguring”, and
(e)    the second respondent had a normal range of motion of his right foot and ankle.
The doctor then reviews radiological reports (as he claims he was unable to review the relevant films themselves) and concludes that the reports (in relation to all claimed injuries other than the right ankle injury) “demonstrate constitutional and degenerative changes rather than any changes that could be attributed to the incident reported”. He opines that there is “insufficient objective evidence” to confirm that the second respondent suffered any other injury except to his right ankle on 18 November 2020.
The doctor further concludes that the second respondent’s right ankle injury “has been treated, healed and has now passed”. He considers that it would ordinarily have prevented the second respondent from working for two to six weeks, after which he could have returned to his full labouring duties. He therefore considers the second respondent to be currently not incapacitated for employment as a consequence of the ankle injury.

Reports from second respondent’s treating doctors

In relation to the second respondent’s general practitioner, Dr Sarian, the evidence includes a referral from the doctor to Dr Rosenberg dated 17 September 2021 (at page 135 of the second Reply), in which Dr Sarian advises that on 18 November 2020, the second respondent mainly suffered traumatic injuries to his right ankle “plus injuries to lumbar spine and right hip joint…still symptomatic re lumbar spine and cervical spine”.
Dr Sarian then prepared a report for the second respondent’s solicitors dated
14 September 2022 (found at page 101 of the second Reply). He confirms that the second respondent first consulted him regarding the 18 November 2020 accident on
27 January 2021, and he outlines the following history obtained by him of the accident:
“The Job involved demolition of a bathroom and bathroom renovation. While working at the date of the accident, he was lifting gyprock walls from the demolition which still had tiles attached to them. The tiled gyprock slipped hitting his right knee and right ankle, then he fell back on to the stairs with the remaining sheets in this [sic] hands when the sheets then fell on top of him and all over his body striking his right shoulder and injuring his lower back and middle back up to his neck and groin, right hip, right knee and right ankle joint.”
The doctor refers to the second respondent’s treatment at Royal Prince Alfred Hospital, involving surgical intervention.
The doctor refers to the second respondent’s “past and current complaints” as including “marked pain and limitation of movements to right shoulder joint and right upper limb”, “pain and tenderness to upper back up to cervical spine”, “mid and lower back pain radiating to both lower limbs”, and “pain and tenderness on and off to right lower limb, mainly right ankle, right foot, right knee joint and right hip joint”.
The doctor refers to his examinations of the second respondent revealing:
(a)    right ankle – marked swelling, tenderness and limitation of movement, together with markedly reduced reflexes;
(b)    right knee – marked tenderness, swelling and loss of sensation, together with markedly reduced reflexes and reduced flexion and extension;
(c)    back and neck – tenderness to mid and lower lumbar spine and also spreading up to cervical spine, forwards and backwards spinal movements restricted, numbness to both lower limbs, as well as reduced reflexes in both upper limbs and both lower limbs, and
(d)    right shoulder – limitation of movement, reduced sensations, as well as right hand weakness.
The doctor then outlines radiological reports obtained in relation to the second respondent upon his referrals, as well as his referral of the second respondent to Drs Popoff, Rosenberg, and Della Torre. The doctor concludes:
“l continued to see and examine Mr Hassan Saleh as recommended and he was and still is symptomatic…He was and still on multiple medications including pain killers and anti-inflammatory tablets plus physio as required…Mr Hassan Saleh had suffered multiple traumatic injuries as mentioned, proved by multiple investigations, seen by multiple specialists and as a result he developed major depression and anxiety and will be referred to a consultant psychologist for further advice and management…In general, he is not fit to return to any productive work and his prognosis for the future must be guarded.”
The doctor diagnoses the second respondent with significant traumatic injuries to his right ankle and right tibialis anterior tendon, a right knee medial meniscus tear, a right shoulder labral tear, and traumatic injuries to his lumbar spine causing annular tears at L4-5 and L5-S1.
Dr Sarian is then consistent in his referrals to specialists in explaining that the second respondent on 18 November 2020 “suffered traumatic injuries to right anterior ankle + lacerations to tibialis anterior and injuries to right knee + right hip joint + right shoulder and to lumbar and cervical spine”. He explains this to Dr Chang on 26 June 2023 (found at page 100 of the second Reply), to Dr Rosenberg on 6 July 2023 (found at page 99 of the second Reply), to Dr Zicat on 17 July 2023 (found at page 98 of the second Reply), to Oz Physiotherapy on 12 September 2023 (found at page 89 of the second Reply), and to
Dr Kuljic on 29 September 2023 (found at page 9 of the second respondent’s AALD).
Dr Popoff first consults with the second respondent on 20 September 2021 and sends a report on that date to Dr Sarian (found at page 133 of the second Reply). He takes the following history from the second respondent:
“Hassan injured his right shoulder, ankle, knee, hip and back in an incident on 18/11/2020. He was carrying gyprock sheets with tile applied to it down some stairs. A sheet of the tiles came adrift, struck his ankle, lacerating it. He then fell backward heavily with the sheets on top of him…Regarding his right shoulder, it was immediately painful and has been painful since…The pain he complains of is superior deep to the deltoid with radiation to the upper arm associated with elevation and is painful at night. His arm feels weak…He’s had no treatment so far.”
Following his examination of the second respondent, the doctor diagnoses him with scapular dyskinesia probably secondary to underlying rotator cuff pathology. He requests a MRI scan and refers the second respondent to physiotherapy.
Dr Popoff consults with the second respondent again on 29 November 2021, following receipt of the requested MRI scan. He advises in his report of that date to Dr Sarian (found at page 128 of the second Reply):
“The MRI scan reveals an almost pan labral detachment with the labral tear extending from a SLAP tear around involving the complete posterior labrum and extending anteriorly into a Bankart lesion. There are several intra-labral cysts and peri-labral cysts…My opinion is Hassan’s symptoms are coming from a subtle instability due to the large labral tear, resulting in a secondary scapular dyskinesia.”
He recommends arthroscopic stabilisation for the second respondent, and he specifically opines that the second respondent’s “clinical, radiological and historical presentation are all consistent with the workplace incident described”.
Dr Popoff eventually performs the arthroscopic stabilisation upon the second respondent’s right shoulder on 6 February 2024, and his operation report is found at page 13 of the second respondent’s AALD. There is then a report from the doctor dated 19 February 2024 (found at page 17 of the second respondent’s AALD) which advises that the second respondent “is doing well” following the arthroscopic procedure.
Dr Rosenberg first consults with the second respondent on 23 September 2021 and sends a report on that date to Dr Sarian (found at page 131 of the second Reply). He takes the following history from the second respondent:
“He suffered an accident in November 2020. He was coming down the stairs holding a heavy load of gyprock walls with tiles and bits of concrete sticking out. He slipped and fell backwards hitting his knee and right ankle and then fell onto his back against the stairs with the load landing on top of him. He had a significant laceration about his right ankle and in fact had surgical repair of his tibialis anterior as well as a washout and debridement of the wound. He has had back pain and leg pain ever since with pain felt from the gluteal region down the backs of his thighs to his shins. He has occasional numbness at the top of his foot. He also describes some pain about his right shoulder and discomfort in his knee. Symptoms tend to be worse with sitting and standing, all of which suggests a disc problem.”
Following his examination of the second respondent (revealing lower spine tenderness and flexion problems) and his review of radiology (revealing annular tears at L4-5 and L5-S1), the doctor opines that he suspects “the L4/5 disc is the symptomatic one and it is reasonable to assume he has injured it in the manner described”. He notes that the second respondent has not yet had any treatment for his back, and he recommends physiotherapy, weight loss, and regular low-impact exercise.
Dr Rosenberg then does not consult with the second respondent again until 1 August 2023, following which he reports to Dr Sarian on that date (found at page 90 of the second Reply). The doctor notes that the second respondent now “feels worse with respect to his back”, and he also notes that on examination, the second respondent limps on his right leg, has limited forward flexion, and extends slowly. The doctor requests a MRI scan and refers the second respondent to physiotherapy.
There is then a further report from Dr Rosenberg dated 31 October 2023 (found at page 88 of the second Reply). The doctor records that the requested MRI scan revealed a protrusion and annular tear at L4-5, as well as a “very slight” protrusion and annular tear at L5-S1. The doctor again recommends continuing physiotherapy, weight loss, and low-impact exercise.
Dr Della Torre first consults with the second respondent on 5 October 2021 and sends a report on that date to Dr Sarian (found at page 126 of the second Reply). He takes the following history from the second respondent:
“He reports carrying 40-50kg of Gyprock boards with tiles down steps where he hit his knee and ankle and fell backwards. The cement and tile sheets fell on his leg sustaining a complex laceration to anterior right lower leg, which resulted in an 80% laceration of tibialis anterior tendon which was repaired at Royal Prince Alfred Hospital.”
The doctor records the second respondent complaining of “right foot and ankle pain which is worse than right buttock and right knee pain”, as well as lower back pain. He notes the right buttock pain to be localised to the right sacroiliac joint.
The doctor examines the second respondent’s right ankle and right knee, and he reviews radiology. In relation to the right ankle, he recommends physiotherapy and hydrotherapy, and he requests a MRI scan. In relation to the right knee, he finds a meniscal tear which is stable and non-irritable, and he therefore only recommends iliotibial band releases and stretching exercises.
Dr Della Torre consults with the second respondent again on 30 November 2021, following receipt of the requested MRI scan. In his report of that date to Dr Sarian (found at page 124 of the second Reply), he summarises:
“From his right knee and ankle perspective he can be managed nonoperatively unless this changes with rehabilitation. The lateral knee pain is improving with stretching of the iliotibial band. Mr Saleh reports his lower back and right buttock pain to be the dominant problem. I took the liberty of referring Mr Saleh to a trusted spinal specialist colleague for review of altered sensation in the right foot and MRI scan of the lower back.”
Dr Zicat first consults with the second respondent on 28 July 2023 and sends a report on that date to Dr Sarian (found at page 95 of the second Reply). He takes the following history from the second respondent:
“He had injuries predominantly to his right side, after a load of gyprock he was carrying landed on his leg and he collapsed backwards. He did have a laceration of his right leg including to his tibialis anterior tendon, and this was treated with repair at Royal Prince Alfred Hospital. Since then, he has had ongoing difficulty with pain in his right shoulder, back, right hip, right knee and ankle. He is being seen by Geoff Rosenberg for his back.”
He specifically refers to the second respondent’s right knee pain, recording that it had not really improved over the past two years. He notes the second respondent’s complaints of pain from his buttock radiating down his right leg and associated with numbness. He also notes no prior history of right leg, hip or knee problems.
On examination, the doctor finds flexion restrictions in the right knee, and some tenderness over the posteromedial joint line and the trochanter. He reviews radiology from 2021, and advises that the second respondent “is sufficiently restricted by his injuries to warrant investigation and treatment”. He requests updated radiology regarding the second respondent’s right knee and right hip.
Dr Zicat consults with the second respondent again on 3 November 2023, following receipt of the requested radiology. In his report of that date to Dr Sarian (found at page 87 of the second Reply), the doctor notes the hip radiology to be unremarkable, and the knee radiology to be largely unchanged since comparative 2021 radiology. He recommends physiotherapy and medication, and concludes:
“Mr Saleh's pain is all on the lateral aspect of his knee, that images entirely normally on his MRI. I suspect that he is having symptoms related to either radiculopathy from lumbar spine, or some generalised weakness leading to iliotibial band irritation.”
The first report from Dr Chang in evidence is dated 1 November 2023, and found at page 30 of the first respondent’s AALD. The doctor is a foot and ankle surgeon, and she records in relation to the second respondent’s right ankle:
(a)    a recent MRI scan revealed a reduction in the overall size of the tibialis anterior tendon, when compared with earlier radiology – demonstrating “reduction in inflammatory reaction surrounding the tendon”;
(b)    the second respondent has noticed an improvement in his ankle in terms of pain and flexibility;
(c)    on examination, she found ankle dorsiflexion restriction, some tenderness over the tibialis anterior tendon, and generalised reduced sensation in the dorsum foot, and
(d)    she encouraged the second respondent to continue with physiotherapy and return to full activities – she did not see any need for surgical intervention.
The other report from Dr Chang in evidence is dated 9 January 2024, and found at page 12 of the second respondent’s AALD. The doctor now records that the second respondent continues to experience intermittent discomfort over the tibialis anterior tendon, and that he complains of clicking in the ankle joint. On examination, she finds tenderness over the tendon and a palpable lump at the distal end of the extensor retinaculum. She now recommends right ankle arthroscopy, tibialis anterior tendon exploration, reconstruction plus minor repair with tenosynovectomy, and extensor retinaculum reconstruction.
Finally, there is a report in evidence from Dr Kuljic dated 4 October 2023, and found at page 10 of the second respondent’s AALD. The doctor is a consultant psychiatrist who diagnoses the second respondent with a major depressive disorder “in a context of physical injury with resulting chronic pain, limited mobility and changes in lifestyle”. He recommends cognitive behavioural therapy and medication.

Other medical evidence

The second respondent’s discharge summary from Royal Prince Alfred Hospital following his treatment there is found at page 141 of the second Reply. The full clinical records from the hospital are otherwise found from page 147 of the applicant’s first AALD. I have considered this documentation, which details little more than “dropped piece of marble onto foot” as a history of the second respondent’s 18 November 2020 accident, and which only refers to treatment being provided to the respondent’s right foot and ankle with no record being taken as to any other injuries received in the accident. No observations are made in the records regarding any bruising or lacerations to areas of the second respondent’s body, other than his right foot and ankle. Apart from his right foot and ankle, he is recorded as being “otherwise well”.
The clinical records also specifically answer “No” to the question “Did the patient present to hospital with a fall”.
The records do not specifically identify the second respondent’s accident as occurring at work, although they note “works as builder”. The records state however that there is no insurance covering the second respondent’s treatment.
The records cover a period of four days until the second respondent’s discharge from the hospital on 21 November 2020, and detail (albeit briefly) communications between the second respondent and hospital staff during that period. During these communications, no mention of the second respondent falling is recorded, and no complaints of pain are made other than in relation to the second respondent’s right foot and ankle.
Although at admission, the hospital identified the need for the second respondent to be operated upon, the relevant surgery did not occur until two days later.
I will detail any other relevant evidence in the clinical records of the hospital if specifically directed to that evidence during the parties’ submissions or during oral evidence given.
There are also various clinical records of the second respondent’s in evidence from his treating medical practitioners. I have considered these records and (aside from the reports contained in the records that I have already detailed above; as well as the records referred to below which I find to be relevant) will only detail parts of them further if specifically directed to those parts during the parties’ submissions or during oral evidence given.

The clinical records from Dr Swid are found from page 280 of the applicant’s first AALD. The records are handwritten. They refer to consultations:
(a)    1 December 2020 - only injury to right ankle recorded;
(b)    15 December 2020 – only progress to right ankle injury recorded, and
(c)    14 January 2021 – complaints made in relation to right gluteal region and right groin (without any specific indication as to their causation) – otherwise, only progress to right ankle injury recorded.
The clinical notes from Dr Swid also contain:
(a) a report from Dr Lee dated 16 June 2011 – referring to the second respondent ‘popping’ his left shoulder about a year ago, and having left shoulder instability since, and
(b) a report from Dr Lee dated 18 July 2011 – advising that radiology had confirmed lesions associated with the dislocation of the second respondent’s left shoulder, and that the shoulder could be treated surgically (as requested by the second respondent).

I am less concerned about the second respondent’s failure to recall reporting a right hip lump on 28 February 2017 (which again is conceded in his second statement – see paragraph 38(e) above). It appears to have been a minor, superficial complaint, which did not require any further treatment. It is not surprising that after seven years, the second respondent would have forgotten such a complaint.
Although the second respondent’s evidence regarding his recollection of his consultations with doctors prior to 18 November 2020 was not entirely satisfactory, I do not believe that it in any way reaches the intentional perjury standard discussed in Malco. Nevertheless, it does cause me to exercise extra care when assessing the entirety of the second respondent’s evidence. It is however the only evidence of the second respondent’s that I find to be compromised, which is an entirely different to my view of the evidence given by Sader and Baccouni.
The applicant’s submissions deal extensively with an alleged lack of contemporaneous medical evidence regarding the second respondent suffering any injuries other than to his right ankle on 18 November 2020. It relies upon the clinical records from the Royal Prince Alfred Hospital and Dr Swid in this regard. These records pre-date the second respondent’s consultation with Dr Sarian on 27 January 2021, when the doctor (according to his
14 September 2022 report) took a history of injuries to the applicant’s right shoulder, back, neck, groin, right hip, right knee, and right ankle.
First, it is important to note that it is only the period between 18 November 2020 and
27 January 2021 which is devoid of evidence regarding the extent of the alleged injuries sustained by the second respondent (although Dr Swid on 14 January 2021 even mentions pain in the right gluteal region and groin). However, after 27 January 2021, the medical evidence is overwhelmingly consistent in not only supporting the second respondent’s version as to how his accident on 18 November 2020 occurred, but in also supporting the extent of the injuries sustained by him at the time.
The second respondent says that he did not report the full extent of his injuries to Royal Prince Alfred Hospital or Dr Swid because:
(a)    he was waiting to consult with Dr Sarian - who was unavailable until
27 January 2021 - see paragraph 146 above;
(b)    he did not wish to cause issues for the applicant – as Sader had requested that he not advise that the accident had occurred during his employment, due to the applicant being uninsured - see paragraphs 145 and 168 above, and
(c)    he was more concerned about his right ankle injury – see paragraph 150 above.
In my opinion, these three reasons seem to be satisfactory. In this regard, I accept the accuracy of the second reason, in circumstances where Sader initially (as can be seen from the inaccuracies contained in his first statement) was attempting to avoid the applicant’s liability for the 18 November 2020 accident.
I appreciate the importance of contemporaneous medical evidence in fact-finding. In a regularly quoted passage from Onassis v Vergottis (1968) 2 Lloyds Report 403 (Onassis). Lord Pearce commented:
“Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on the balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
However, the importance of contemporaneous medical evidence needs to be considered in the light of the caution that I need to exercise in relying upon clinical records. In Mason, Basten JA at [2] warned:
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
The clinical records from Royal Prince Alfred Hospital are brief and inaccurate, referring to a piece of marble (rather than a gyprock board) striking the second respondent’s right ankle (see paragraph 26 above).
The records do not refer to the accident as being work-related (see paragraph 128 above), which suggests to me that hospital staff were either advised as such or did not ask. It would be rare for hospital staff to not ask such questions, but it is also apparent that as at 18 November 2020 (during the COVID-19 pandemic), hospital staff were under considerable pressure. The second respondent (see paragraph 169 above) describes the hospital as chaotic and explains that his ankle operation was delayed twice due to parts of the hospital being isolated when COVID-19 patients arrived.
The brief nature of the notes is understandable in the circumstances, and for the reasons enunciated in Mason, I am cautious as to their accuracy regarding their lack of observations of any injuries other than to the second respondent’s right ankle. I am also cautious as to their accuracy of recording that no fall occurred on 18 November 2020, especially as that recording is a one-word answer of “No” (see paragraph 127 above).
Dr Swid’s clinical records are also brief and clearly focused upon treating the second respondent’s right ankle, which had just been operated upon. The doctor was consulted by the second respondent while he was waiting to consult with Dr Sarian on 27 January 2021.
In these circumstances, I reject the proposition that the lack of contemporaneous medical evidence regarding injuries other than to the second respondent’s right ankle injury, affects the second respondent’s credit. In doing so:
(a)    I accept the second respondent’s reasons for not reporting the full extent of his injuries;
(b)    considering the circumstances in which the records were created, I exercise significant caution in the weight that I give to those records from Royal Prince Alfred Hospital and Dr Swid - in accordance with Mason, and
(c)    in any case, I consider the second respondent’s reporting of the full extent of his injuries to Dr Sarian on 27 January 2001 to be sufficiently contemporaneous in the circumstances.
Further, I reject the proposition that the second respondent’s delay in undertaking x-rays affects his credit. He explained (see paragraph 158 above) that he was waiting for a claim number and for Dr Sarian to refer him. This is an entirely understandable explanation as the doctor had been his treating general practitioner for many years.
Overall, in analysing both the statement and oral evidence given by Sader, Baccouni, and the second respondent, I feel the persuasion necessary in accordance with Nguyen to accept the evidence of the second respondent, as opposed to the evidence of Sader and Baccouni, in relation to how his accident on 18 November 2020 occurred. I find his credit to be much less affected than the credit of Sader and Baccouni.

Apart from injuring his right ankle on 18 November 2020, did the second respondent also then sustain injuries to his right knee, right foot, right lower extremity, right hip, groin, lower back, lumbar spine with radiculopathy, middle back, thoracic spine with radiculopathy, neck, cervical spine with radiculopathy, right shoulder, and right extremity, as well as anxiety and depression

My finding will be that on 18 November 2020, the second respondent sustained injuries to his neck, right shoulder, back, right hip, right knee, and right ankle. These are the injuries accepted by the first respondent (see paragraph 73(b) above), and the applicant has failed in its onus of proving that they did not occur.
I make no findings in relation to whether the second respondent injured his groin or his thoracic spine on 18 November 2020. I also make no finding in relation to whether he sustained any psychological injury. Such injuries are not listed as accepted by the first respondent, although they are addressed in the medical evidence presented. In my opinion however, as these proceedings have been brought by the applicant, it is only the injuries accepted by the first respondent and which led to its payments to the second respondent, which are relevant and in relation to which findings are appropriate.
I have accepted that the second respondent’s accident on 18 November 2020 occurred in accordance with his evidence that he dropped a gyprock board onto his right knee and then onto his right ankle while he was descending stairs, and then fell backwards onto the stairs, injuring his back, neck and right hip, while other gyprock boards fell onto his right shoulder.
As discussed, this evidence was consistently given to the applicant’s treating medical practitioners, as well as to Dr Millons. Their opinions were therefore given in a ‘fair climate’ in accordance with Paric v John Holland (Constructions) Pty Limited [1985] HCA 58 and Paric v John Holland (Constructions) Pty Limited [1984] 2 NSWLR 505. Dr Bodel’s history however was that the second respondent fell down the stairs, and it is questionable therefore whether his opinion as to the injuries caused was given in a ‘fair climate’.
Nevertheless:
(a)    Dr Millons opines that the second respondent injured his right ankle, right knee, right hip, right shoulder, back and neck in his 18 November 2020 accident – the doctor provides appropriate diagnoses and assesses permanent impairment in all areas but the right hip - see paragraphs 89, 90, and 92 above;
(b)    Dr Sarian refers to the second respondent injuring his (inter alia) right shoulder, back, neck, right hip, right knee and right ankle on 18 November 2020 – the doctor opines that (as at the date of the doctor’s report on 14 September 2022) he suffered multiple traumatic injuries as a result, and was still symptomatic – see paragraphs 102 and 106 above;
(c)    Dr Popoff (while not providing a specific medicolegal report regarding causation) clearly accepts that the second respondent’s right shoulder complaints (in relation to which he treated the second respondent) arose following the second respondent’s 18 November 2020 accident - see paragraphs 109-112 above;
(d)    Dr Rosenberg (while also not providing a specific medicolegal report regarding causation) clearly also accepts that the second respondent’s back complaints (in relation to which he treated the second respondent) arose following the second respondent’s 18 November 2020 accident – see paragraphs 113-116 above;
(e)    Dr Zicat (while also not providing a specific medicolegal report regarding causation) clearly also accepts that the second respondent’s right knee complaints (in relation to which he treated the second respondent) arose following the second respondent’s 18 November 2020 accident – see paragraphs 120-122 above, and
(f)    Dr Sarian’s certificates of capacity (see paragraph 136(e) above) all refer to injuries to the second respondent’s right ankle, right knee, right hip, right shoulder, and lumbar spine - and from 6 July 2023, they also refer to the second respondent’s neck.
In contrast to this medical evidence, the applicant relies upon a report from Dr Allen. I do not however afford much weight to Dr Allen’s opinions as:
(a)    his history of the second respondent’s accident is brief and does not include a fall onto stairs – see paragraph 95 above;
(b)    he “abandoned” his examination of the second respondent due to the second respondent’s alleged lack of cooperation - see paragraph 94 above;
(c)    he did not review the second respondent’s x-rays, allegedly as the second respondent would not provide them to him – see paragraph 94 above, and
(d)    he relies upon there being insufficient objective evidence to confirm that the second respondent suffered any injury other than to his right ankle on 18 November 2020 – despite the overwhelming supportive medical evidence from the second respondent’s treating medical practitioners - see paragraph 99 above.
The applicant complains about the second respondent’s lack of cooperation with Dr Allen, and the second respondent disputes Dr Allen’s accusations (see paragraph 41 above). The second respondent’s mother also provides a statement supportive of her son in this regard. It is clear to me that there was a significant disagreement between the second respondent and the doctor during the relevant consultation. The disagreement clearly affected the doctor’s ability to provide a complete and reliable report.
In my opinion, whether the disagreement was the fault of the second respondent or not, it is still incumbent upon the applicant to provide reliable medical evidence. I again note that it bears the onus of proof in these proceedings. There are mechanisms (for example, s 119 of the 1998 Act) which it could have used to require the second respondent to attend a further consultation with Dr Allen or indeed a consultation with a different medical practitioner. It could have used these mechanisms prior to the commencement of the arbitration hearing in the proceedings, in order to provide me with reliable medical evidence. It did not do so.
At this point, it is convenient that I also deal with the applicant’s complaints regarding the inadequacy of documents produced to the Commission by Dr Sarian (see paragraph 204 above). Again, the applicant bears the onus of proof in these proceedings, and there are mechanisms (for example, cl 49 of the Personal Injury Commission Rules 2021) that it could have used to ensure compliance by Dr Sarian with the direction for production served upon him. It did not do so prior to the commencement of the arbitration hearing in the proceedings, and it is therefore faced with solely relying upon the documentation produced by Dr Sarian, in order to attempt to meet its onus in the proceedings.
Having considered the entire medical evidence presented before me, I am satisfied that the second respondent suffered injury to his right ankle, right knee, right hip, back, neck, and right shoulder on 18 November 2020, in the course of his employment with the applicant pursuant to s 4 of the 1987 Act, and to which his employment with the applicant was a substantial contributing factor pursuant to s 9A of the 1987 Act.
It is true that the second respondent had one complaint of right hip pain and one complaint of right shoulder pain prior to 18 November 2020. It would seem from the lack of other treatment records regarding these complaints that they were minor complaints. There is no medical evidence before me to suggest otherwise, and the second respondent confirms (see paragraph 164 above) that he had no physical restrictions at all when he commenced his employment with the applicant. His work with the applicant was labouring work, and I am satisfied that he would not have been able to perform it had his previous complaints of right hip pain or right shoulder pain been anything other than minor.

What is the correct calculation of the second respondent’s PIAWE - alleged by the applicant to be $450 per week, and alleged by the first and second respondents to be $808.50 per week

The second respondent’s evidence is that he was paid $1,250 per week by the applicant. The first respondent however calculated his PIAWE at $808.50, which the second respondent does not seem to have disputed yet in any formal manner. In my opinion therefore, it is not appropriate for me, as these proceedings have been brought by the applicant, to make a specific finding regarding the second respondent’s PIAWE. Instead, the finding that I will make will be as to whether the applicant has met its onus of proving that the PIAWE should not have been calculated by the first respondent at $808.50 per week.
For the applicant to succeed in meeting its onus, I would need to accept Sader’s statement and oral evidence, and reject the second respondent’s statement and oral evidence. I would need to accept that the second respondent worked for the applicant only three days per week on average, for which he was paid $150 per day. I do not do so.
Apart from the unsatisfactory nature of Sader’s evidence referred to at paragraphs 234-237 above, I find the following additional evidence to be relevant:
(a)    the second respondent moved from stable employment with the Commonwealth Bank in order to work with the applicant – I accept his evidence (see paragraphs 162-163 above) that it would not have been financially sustainable for him if he was only paid $450 per week as alleged by Sader;
(b)    having regard to the second respondent’s Commonwealth Bank employment prior to working with the applicant, it was in my opinion highly unlikely that he would have an ABN number or that Sader could accept as such, which Sader says that he did;
(c)    the second respondent provides significant detail regarding the job sites where he worked for the applicant (see paragraphs 24-26 above) - there are five job sites - the detail provided by him (when compared with the lack of detail regarding those job sites provided by Sader) suggests to me a better recollection than Sader’s as to the work that he performed for the applicant;
(d)    the second respondent provides (see paragraph 24 above) photographic and documentary ‘proof’ of working on 14 different days (not including the date of his accident) - the applicant submits these were the only days when he worked for the applicant, but provides no documentary ‘proof’ itself other than two text messages regarding the second respondent not being required to work on
26 October 2020 and 27 October 2020 – considering the extent of the ‘proof’ provided by the respective parties in this regard, I reject the applicant’s submission and consider proof of 15 days working compared to proof of 2 days not working favours acceptance of a full-time position rather than a three-day per week position;
(e)    for the applicant’s submission that the second respondent only worked for it on 15 days to be accepted, it would also need to be accepted that the second respondent did not work at all for it between 22 October 2020 and
17 November 2020 (during which period the second respondent did not provide any photographic or documentary ‘proof’ of working) – however, the applicant has not produced any business records (except for the two text messages) to explain what jobs it was undertaking during that period, such that it did not require the assistance of the second respondent – again, the applicant bears the onus of proof regarding such matters;
(f)    the text messages provided by the applicant actually include a message on
24 September 2020 (which is not one of the 14 days for which the second respondent has photographic or documentary ‘proof’ of him working for the applicant) suggesting that the second respondent was working for the applicant on that date – see paragraph 71(a) above – which again counters the applicant’s submission that the second respondent only worked for it on 15 days (including the date of his accident);
(g)    Baccouni advises that he did not know any details of the payment arrangements between the second respondent and the applicant - see paragraph 60 above;
(h)    Baccouni advises that the second respondent only worked for the applicant on 10-12 days (see paragraph 60 above) - which on any view of the evidence is incorrect;
(i)    I do not find Turkmen’s evidence to be of much assistance in my determination of the nature of the employment relationship between the applicant and the second respondent, and
(j)    the second respondent’s 2021 amended taxation return (see paragraph 73(d) above) is consistent with his evidence that he worked full-time for the applicant and was paid $1,250 per week.

In essence, there is no independent evidence as to the nature of the employment relationship between the applicant and the second respondent. The evidence of Sader is contradictory to the evidence of the second respondent, and vice versa. I have already found the credit of the second respondent to be strong and the credit of Sader to be unreliable on many fronts.
The applicant has also not produced any of its business records in an attempt to provide corroboration to Sader’s evidence.
In the circumstances, the applicant has failed to meet its onus of proving that the second respondent’s PIAWE should not have been calculated by the first respondent at $808.50. If anything, the evidence suggests that the PIAWE should have been calculated at a higher rate.

What was the extent of the applicant’s current work capacity between 3 March 2021 and
15 August 2023, in relation to his right ankle injury, as well as in relation to any other injuries found to have been sustained on 18 November 2020

Dr Sarian (see paragraph 136(e) above) provided monthly certificates of capacity covering the entire period between 3 March 2021 and 15 August 2023. The certificates consistently certify the second respondent as having no current work capacity at all, and they refer to the injuries which I have found the second respondent sustained on 18 November 2020, to his right ankle, right knee, right hip, back, and right shoulder (as well as his neck – from the
6 July 2023 certificate). Being the second respondent’s treating general practitioner who has regularly treated him since 18 November 2020, the doctor in my opinion is clearly in the best position to provide an opinion regarding his work capacity.
Dr Millons examined the second respondent on 27 September 2023 (just after the period referred to in the reimbursement notice when the first respondent paid the second respondent weekly benefits compensation on the basis of the second respondent having no current work capacity). The doctor obtains what I have found to be a correct history from the second respondent, he outlines the second respondent’s treatment and symptoms, and he conducts a thorough examination of the second respondent. He provides his diagnoses (see paragraph 90 above) in relation to all of the second respondent’s injuries to his right ankle, right knee, right hip, neck, back, and right shoulder, and he assesses the second respondent with significant permanent impairments (see paragraph 92 above). He specifically finds the second respondent to be unfit for any work at the time of his examination (see paragraph 91 above).
Dr Bodel examined the second respondent on 1 August 2022 (just over half way in the period referred to in the reimbursement notice when the first respondent paid the second respondent weekly benefits compensation on the basis of the second respondent having no current work capacity). Although the doctor’s history is slightly suspect, and he finds slightly greater impairments (see paragraph 81 above) to the second respondent’s right lower extremity and lumbar spine than Dr Millons did, he opines that the second respondent was totally and permanently incapacitated for work, as his prospects of returning to any form of paid work were very poor (see paragraph 82 above).
There are further reports from the applicant’s treating specialists in evidence, which reveal:
(a)    on 29 November 2021, Dr Popoff advised that the second respondent required arthroscopic stabilisation of his right shoulder (see paragraph 111 above) - which was not performed until 6 February 2024;
(b)    Dr Rosenberg consults with the second respondent on 23 September 2021 and again on 1 August 2023 – he notes the applicant’s significant back pain on
23 September 2021, which had become worse by 1 August 2023, and involved right leg limping, limited forward flexion, and slow extension - see paragraphs 113 and 115 above;
(c)    Dr Della Torre records the second respondent with right foot and ankle pain, right knee pain, and lower back pain on 5 October 2021, and he referred the second respondent directly to a spinal specialist on 30 November 2021 - see paragraphs 117-119 above, and
(d)    Dr Zicat (see paragraph 120 above) recorded the second respondent to have right knee pain which had not improved over the past two years, as well as pain radiating from his buttocks down his right leg – he finds restrictions and tenderness on examination.
While these reports do not provide specific evidence of incapacity, they do reveal the second respondent’s ongoing specialist treatment regime in relation to most of the injuries which he sustained on 11 November 2020. The recordings and opinions in the reports are consistent with him experiencing significant ongoing restrictions on his work capacity, and they are therefore consistent with the opinions expressed regarding his work capacity by Drs Sarian, Millons and Bodel.
The applicant (who bears the onus of proving that the second respondent had current work capacity between 3 March 2021 and 15 August 2023) relies upon the opinion of Dr Allen. I have already found this opinion to be unreliable (see paragraph 267 above), but I note for completeness here that his opinion regarding capacity was that (see paragraph 100 above) the second respondent’s right ankle injury should have only incapacitated him for two to six weeks. This opinion is contrary to not only the opinions of Drs Sarian, Millons and Bodel, but it is also contrary to Dr Della Torre’s recordings in October 2021 and November 2021.
The second respondent’s ongoing complaints as a result of the other injuries which he sustained on 18 November 2020 are not addressed by Dr Allen except in relation to the brief comments which are referred to at paragraph 98 above. Those comments do not assist me in determining the second respondent’s work capacity.
Having regard to the abundance of medical evidence regarding the second respondent having no current work capacity between 3 March 2021 and 15 August 2023, I find as such. The applicant has failed to produce any reliable medical evidence otherwise, and it has therefore failed to discharge its onus of proving that the second respondent had work capacity during the relevant period.
Apart from paying weekly benefits compensation between 3 March 2021 and
15 August 2023, the reimbursement notice also includes an amount of $242.50 paid by the first respondent pursuant to s 60 of the 1987 Act regarding medical treatment needed by the second respondent. As noted earlier (see paragraph 73(c) above), the reimbursement notice does not specify what treatment this payment was made for or indeed who was paid the relevant amount. However, s 145(5) of the 1987 Act states that the inclusion of the payment in the reimbursement notice is proof that the payment was made “to or in respect of an injured worker”. In my opinion, this sub-section requires an applicant attempting to evade reimbursing the payment to positively prove that the payment was not made “to or in respect of an injured worker”. The applicant has not discharged its onus in this regard. While it is unclear what the payment was for, particulars could have been sought by the applicant (considering the onus that it bore) in order to attempt to discharge its onus.

SUMMARY

I find that the applicant has failed to discharge its onus of proving that the second respondent did not suffer injuries to his neck, back, right shoulder, right hip, and right knee on
18 November 2020.
I find that on 18 November 2020, the second respondent suffered injury to his neck, back, right shoulder, right hip, right knee, and right ankle, pursuant to ss 4 and 9A of the 1987 Act.
I find that the applicant has failed to discharge its onus of proving that the first respondent paid weekly benefits compensation to the second respondent pursuant to an incorrect PIAWE of $808.50.
I find that the applicant has failed to discharge its onus of proving that the second respondent had current work capacity during the period between 3 March 2021 and 15 August 2023.
I find that as a result of the second respondent’s injury on 18 November 2020, he had no current work capacity during the period between 3 March 2021 and 15 August 2023. During that period, he was therefore entitled to weekly benefits compensation in accordance with ss 36(1) and 37(1) of the 1987 Act, his entitlement being calculated by the first respondent in accordance with a PIAWE of $808.50.
I find that as a result of the second respondent’s injury on 18 November 2020, he required medical treatment costing $242.50.
I find (with the agreement of the applicant) that it was not insured in respect of its liability to compensate the second respondent in accordance with the 1987 Act, regarding his injury on 18 November 2020.
I find that the first respondent has compensated the second respondent in relation to his entitlements, as described in paragraphs 293-294 above. The first respondent has made a total payment of $91,724.88 in this regard. It has issued a valid notice dated
5 September 2023 to the applicant, in accordance with s 145(1) of the 1987 Act, requiring the applicant to reimburse that amount to it.
I find the amount of $91,724.88 paid by the first respondent in this regard reflects the valid and legitimate entitlements of the second respondent to compensation with respect to his
18 November 2020 injury. I find the payment made to be both necessary and appropriate.
I therefore find that pursuant to s 145(3) of the 1987 Act, the applicant is liable in respect of the payment made of $91,724.88.
The applicant’s request for an order from the Commission pursuant to s 145(3) of the 1987 Act, that it is not liable to reimburse the amount of $91,724.88 to the first respondent, is as a result refused.
The applicant is to pay the first respondent the amount of $91,724.88.

[2025] NSWPIC 47

14 February 2025