VWA v Woolworths
[2016] VSC 799
•9 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 05532
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | T FORREST J |
WHERE HELD: | Wodonga |
DATES OF HEARING: | 6, 7, 8 December 2016 |
DATE OF JUDGMENT: | 9 December 2016 |
CASE MAY BE CITED AS: | VWA v Woolworths |
MEDIUM NEUTRAL CITATION: | [2016] VSC 799 |
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ACCIDENT COMPENSATION – Workers compensation – Accident Compensation Act 1985 s138 - Indemnity – Whether injury was caused under circumstances creating a liability in the defendant to pay damages – Whether or not plaintiff able to prove the alleged incident occurred – Credibility of the worker witness.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Jens QC Ms S. Bailey | Russell Kennedy Lawyers |
| For the Defendant | Mr D. Myers Mr D. McWilliams | Meridian Lawyers |
HIS HONOUR:
In early 2010 Stephen McAlister(the ‘worker’) was employed by DL and MA Leslie Pty Ltd (which I shall refer to as the ‘employer’ or ‘Leslie’s’) as a truck driver. He alleges that in early March 2003, while carrying out duties for his employer, he attended the Woolworths Distribution Centre in Mulgrave.
He states that an accident occurred that resulted in him suffering a serious shoulder injury together with superficial facial injuries, including a black eye and scratches. He also alleges that his glasses were damaged in that incident. He sued his employer and Woolworths Limited (‘Woolworths’) for personal injury. The case was settled. In addition, he has been paid weekly benefits, medical expenses, occupational rehabilitation payments, and ss 98C and 98E lump sum payments.[1] There have been other sundry costs. I shall refer to the totality of these payments as ‘the sum’.
[1]See ss 98C and 98E of the Accident Compensation Act 1985.
These proceedings are brought pursuant to s 138 of the Accident Compensation Act 1985 (‘Act’). The plaintiff, the Victorian WorkCover Authority (‘VWA’), seeks an indemnity from the defendant, Woolworths, in respect of the sum. It also seeks a declaration that it is entitled be indemnified by the defendant pursuant to s 138 of the Act in respect of any future payments that it will be required to make pursuant to the provisions of the Act in relation to Mr McAlister’s claim.
The Scope of this Claim
Section 138 entitles the VWA, as the statutory WorkCover insurer, to seek an indemnity from a non-employer third party who has caused or contributed to an injury to a worker for which compensation has been paid under the Act. The Act provides a formula for the calculation and capping of the indemnity:
Factor A is the worker's hypothetical common law entitlement in relation to the compensable injury. In this case it has been agreed at $750,000. This agreement is subject to the plaintiff proving a) that the incident occurred; b) that there were relevant consequences; and c) that there was negligence on Woolworth's part.
Factor B is irrelevant.
Factor C (relevantly) is the amount paid by the third party in respect of the injury to the worker under any settlement of an action by the worker against the third party.
Factor X is the extent expressed as a percentage whereby the third party's act, default or negligence caused or contributed to the relevant injury. Factor X is in dispute in these proceedings.
It will be understood that Factor A (conditionally) and Factor X are the only issues unresolved in these proceedings. The resolution of both factors requires me to consider the following central issues:
a) Whether the incident occurred at all;
b) If the incident did occur, whether the worker suffered any injury as a result; and
c) If yes to a) and b), to what extent was Woolworth’s negligence causative or contributing to the plaintiff’s injury.
Analysis
The resolution of these issues requires close scrutiny of the worker’s reliability and credibility as a witness. There is no other independent evidence of the impugned event. Similarly, any linkage of the worker’s undoubted shoulder injury to the event itself relies entirely on the evidence of the worker.
a) Did the Incident Occur?
The plaintiff alleges that Mr McAlister injured his shoulder at the Woolworths Mulgrave Distributional Centre on Monday 2 March 2010. The defendant, Woolworths, denies this, and submits that the plaintiff has failed to prove that there was any such incident. I shall set out a short summary of the worker’s evidence of the incident itself and its immediate aftermath.
Summary of the Worker's Evidence-in-Chief
· Stephen McAlister gave evidence that he became employed by Leslie’s, a trucking company in late 2009. Leslie’s was based in Robinvale and as at 2010 was a fairly substantial organisation, having about 14 trucks. Mr McAlister drove semis, B-Doubles and road trains. He had been a truck driver for virtually all of his working life. Prior to Leslie’s he worked almost continuously as a truck driver aside from having two or three months off work in around 2006, and about ten weeks off work in the late 1990s following a shoulder injury. He described the late 1990s injury as to his right shoulder, but to a ‘completely different spot’ to the injury allegedly sustained in 2010.
· In March 2010, Mr McAlister's work involved driving a double-B truck for Leslie’s, delivering mainly grapes. Vince Cordoma was the man in charge at Leslie’s.
· Mr McAlister agreed that in early March 2010 he made a trip from Robinvale to the Woolworths Distribution Centre in Mulgrave. Grapes had been loaded into his truck in Robinvale. The pallets of grapes were stacked one on top of the other. Two high, the pallets stood about 8 feet tall: about 10 – 15 cm from the roof of the truck. Plyboard was placed in between the stacks of pallets to stop the pallets moving, rubbing, or jamming against each other whilst in transit. The ply sheets would be about 4 ft 6 by 8 ft, and were about 5 mm thick. This use of ply and the manner of loading pallets was a standard procedure, a ‘regular thing that everyone does.’
· Mr McAlister said it was night time when he arrived at Mulgrave to unload. Manifest 54093 confirmed his delivery of grapes to Mulgrave at about 4.30 am on 2 March 2010. After signing in, lodging his paperwork, and backing his truck into the assigned dock, Mr McAlister assisted a forklift driver to unload his truck.
· The unloading process was such that the forklift driver would drive into the back of the truck and remove the pallets in stacks of two using the forklift. The truck driver, Mr McAlister in this case, would assist by removing the ply that was between the pallet stacks as they were unloaded. .
· Mr McAlister leant the sheets of removed plyboard against the left-hand wall of the inside of his truck, towards the rear of that side wall. He said that ‘everyone, every transport company’ would place their ply like this. Once all the pieces of ply were placed against the wall, the whole stack would be strapped to the truck wall.
· Towards the end of unloading the load, when there were about 30 pieces of ply stacked against the wall, Mr McAlister was standing just outside the van when the forklift driver clipped the ply stack with the wheels of his forklift and the stack began to topple.
· Mr McAlister said that he stepped up into the van and put his arm or arms up in an attempt to stop the ply from falling, but the ply was too heavy. He said he was thrown back to the other side of the van and jammed under the plyboards. He was able to crawl out from under the boards. He and the forklift driver then pushed the boards back up and strapped them. Mr McAlister said that he hurt his shoulder and neck in the attempt to stop the boards from falling.
· He did not do anything about the injury at the time. He drove back to Robinvale, arriving later on 2 March 2010. He then drove to Adelaide, returning to the Mildura depot from Adelaide on 3 March 2010. He described that on the way back from Adelaide he was in significant pain and he pulled over at Truro to have a couple of hours’ sleep. On 3 March 2010, he drove to Brisbane, finally returning to Robinvale on 7 March 2010.
· Prior to driving to Brisbane, he was advised at the Mildura depot that he would need to go to Marciano’s farm (down the road from the depot) to have his front trailer loaded. The person who was loading the pallets into his trailer at Marciano’s was having some difficulty getting the pallets in, and that person asked Mr McAlister to jump up and give him a hand. Mr McAlister assisted, he said, by pushing some pallets into the truck. The two men then drove back to the depot where Mr McAlister had a shower. He noticed that this time, he said, that his shoulder pain was getting worse. He then set off for Brisbane.
· A couple of hours into the drive, at about Hay, Mr McAlister was in a fair bit of pain and having trouble breathing. He could not move his right arm at all. He said he did not contact anyone at this stage and kept driving, hoping his shoulder would come good.
· In Brisbane, the unloading work was done for him, as was the usual procedure in Brisbane. On the return trip, he said he had so much pain in his shoulder that by Coonabarabran he felt unable to sit in the driver's seat any longer. He pulled over and rested or slept. He called Vince Cordoma and told him that he was in a lot of pain, was having difficulty driving, and was therefore running a few hours late. This was the first time he had told anyone at work about the injury.
· After finally returning to Robinvale at around 6:00 or 7:00 pm on 7 March, he returned to Swan Hill. He said he saw his local GP, Dr Moynihan, and at about that time ceased work.
As I have said, there is no evidence, other than from the worker himself, about the occurrence of this alleged incident. Whilst I am comfortably satisfied that the worker injured his right shoulder in early March 2010, I am not satisfied that the incident he described at the Mulgrave Distribution Centre occurred at all.
I shall endeavour to explain my reasons, setting out the significant factors to this finding under A. – L. below.
A. The worker made no report to Woolworths on 1 March 2010, or at all.
B. The worker made no report of the incident or his injury to his employer from 1 March 2010 to 5 March 2010.
On 5 March 2010, he telephoned his employer from Coonabarabran and advised them that he was in pain, having difficulty driving and, therefore, running late.
He returned somewhat later than expected on 7 March. Neither during the call on 5 March, nor when he arrived at Robinvale on 7 March did the worker mention any incident that was alleged to have occurred at Woolworths.
C. Mr McAlister’s worker's injury claim form.
This is a formal document which declares the contents to be ‘true and correct’, and which warns that making a false or misleading statement in support of the claim is punishable by law. Mr McAlister completed his claim form on 22 March 2010.
This first formal account of the circumstances in which the worker injured his shoulder reads, inter alia, as follows:
Question: What happened and how were you injured?---Answer: Push/pulling a pallet trolley.
Question: What tasks were you doing when you were injured?---Answer: Loading produce.
Question: If you did not report the injury condition, or there was a delay, please explain why?---Answer: Didn't think it was too bad at first until I started my trip to Brisbane.
The worker's injury claim form was signed by Mr McAlister and he identified Dr Moynihan as his treating general practitioner.
D. Dr Moynihan’s notes and certificates
There is no history contained in Dr Moynihan’s notes of 9 March, 17 March and 22 March 2010 beyond words to the effect of, ‘This truckie has wrenched his right shoulder.’
In certificates of capacity, however, dated 9 March 2010 and 22 March 2010, Dr Moynihan, under the heading of, ‘Description of injury/disease,’ has recorded ‘Wrenched shoulder pushing pallet trolley 4pm.’ I am satisfied this information must have come from the worker on 9 March 2010 when he consulted Dr Moynihan. Dr Moynihan referred the plaintiff to Mr Dayananda.
E. Mr Dayananda’s report
On about 22 March 2010 Mr McAlister attended Mr Dayananda, an orthopaedic surgeon in Bendigo. On 23 March 2010, Mr Dayananda reported to Dr Moynihan the following:
“He developed right shoulder pain when he was pushing some trolleys, and while he was driving to Brisbane he was in an excruciating amount of pain.”
I am satisfied that the worker gave this account to Mr Dayananda, and I am satisfied that on each of these occasions where the worker has referred to ‘push/pulling a pallet’, he is referring to an incident that is alleged to have occurred at Marciano's farm on about 3 March 2010. I am satisfied that he is not referring to an incident at Woolworths where a stack of ply was struck by a forklift and fell on him.
F. The employer’s injury claim report.
This document, submitted by the employer on 31 March 2010, is significant for two reasons. Firstly, it recites the worker’s then account: that he hurt his right shoulder while using a pallet jack when helping to load a truck, and secondly it asserts that co-worker Leigh Marr was present but unaware of any injury. It also asserts that the worker acted against company policy in loading the truck himself, and wearing inappropriate footwear.
G. Leigh Marr’s evidence
Mr Marr gave evidence that he and Mr McAlister attended at Marciano’s farm to load two trailer loads of grapes to be taken to Brisbane by Mr McAlister. He noticed no injury on Mr McAlister, nor did Mr McAlister complain of any injury during the loading process. He said that Mr McAlister insisted on loading the vehicle himself despite the fact that Mr Marr went with him to Marciano’s to carry out that duty. Mr McAlister differed on certain aspects of this evidence. He said that there was only one trailer to be loaded, and that Mr Marr loaded it with some help from him.
When confronted with Mr Marr’s anticipated evidence that Mr McAlister used the pallet trolley at Marciano’s without any difficulty, did not mention any incident at Woolworths, and did not appear to have any injuries, Mr McAlister declared Mr Marr to be a perjurer who would say what Vince (Cordoma) told him to say to save his job. My impression of Mr Marr was that he was a conscientious witness who endeavoured to be truthful. I am satisfied that Mr McAlister showed no apparent sign of existing injury whilst performing duty at Marciano’s, and did not complain to Mr Marr of any existing or new injury. I am also satisfied that Mr McAlister made no mention of any incident at Woolworths to Mr Marr. Where Mr McAlister’s evidence conflicts with Mr Marr's evidence, I prefer the evidence of Mr Marr. I mention in passing that Mr Marr no longer works for Leslie’s.
H. The push/pull pallet incident remained the Mr McAlister’s asserted causative event for many months
It was not until 4 August 2010 that the plaintiff made the, ‘forklift/plywood’ allegation. He did so in these terms, as described by his physiotherapist, Mr Moloney:
At this time Stephen explained that he was helping to load / unload a truck when a number of sheets of plywood fell towards him and he raised his right arm to shield himself. It was this action which caused his right shoulder [sic]. This was further exacerbated within a few days when he was pushing/ pulling a laden trolley jack which caused his right shoulder to dislocate.
From this time onwards this has substantially been the worker’s account, although there have been variations in detail. The initiating injury is now said to have occurred at Woolworths, and the injury at Marciano’s is said to have been an exacerbation of the Woolworths injury.
If this bald analysis was where the evidence stopped, I would not be satisfied on balance that the impugned Woolworths incident occurred. For months, Mr McAlister maintained that the precipitating incident was at Marciano’s. He declared this to his general practitioner, his specialist, and in relatively solemn circumstances to the Workers’ Compensation Insurer.
This analysis does not take into account, however, the worker’s unusual performance in the witness box.
Mr McAlister as a witness
It is clear enough that the worker has had amphetamine, methylamphetamine and perhaps mental health problems in the past. It is also clear that he has little education and a very well developed disrespect for all forms of authority. Making as generous an allowance as I can for these idiosyncrasies, I consider Mr McAlister to have been a truly appalling witness. It is unnecessary to set out every example of his unreliability but I shall endeavour to convey a flavour of his evidence in the following sub-paragraphs.
I. Mr McAlister’s 2014 affidavit
In 2014, the worker swore an affidavit in support of his application for a serious injury certificate (‘2014 affidavit’). In that affidavit he swore, inter alia, ‘I am aware the insurer allegedly has information in its possession of an injury to my shoulder having occurred in 1997, I do not recall the injury but if I did suffer such an injury I made a complete recovery’. Initially, in evidence-in-chief the worker claimed to have had some small recollection of an injury in the late 1990s and consequently having about ten weeks off work. This is obviously inconsistent with his serious injury affidavit.
Upon cross-examination the worker conceded that in the late 1990s he had undergone two hydro-dilatations to his right shoulder, and had significant pain and loss of movement to that joint. Ultimately he accepted (having been shown an affidavit in support of a claim for permanent impairment, sworn in July 1999), that two years after the 1997 injury he had sworn that he continued to have difficulty in holding a truck steering wheel, took Panadeine Forte for the pain, and was precluded from heavy duties such as lashing down tarps or doing heavy lifting. I regarded it as inconceivable that the worker could have completely forgotten this late 1990s shoulder injury when he came to swear his 2014 affidavit, or to have recovered some moderate recollection of it two years later by the time he came to give evidence in these proceedings. Mr McAlister’s explanation for his 2014 memory loss was, ‘I was on drugs back then’. I reject that as a sensible explanation for his total lack of recall.
In the 2014 affidavit Mr McAlister also swore as follows, ‘During the course of the many treatments I have received for my shoulder my marriage broke down irretrievably because of the pain’.
Mr McAlister’s marriage broke down in 2008. His shoulder injury, however it was occasioned, occurred, according to him, in 2010. The witness explained this discrepancy as, ‘I suppose it’s true, but like it could be a lot of different pain, mate, mental pain’. He had earlier described his marriage dissolution as constituting, ‘The end of the grief’.
J. The 2009 job application form.
In a job application form completed by the worker on 25 November 2009, the following questions and answers appear. Question: ‘Have you ever been convicted of a criminal offence?’ Answer: ‘No.’ A little later in the same document, ‘Have you ever been convicted of a drug offence?’ Answer: ‘No.’ In fact, both these answers were untrue. By 25 November 2009 the witness had convictions for possession of amphetamines (9 April 2009) and possession of a drug of dependence (11 November 2009: two weeks prior to completing the job application). When confronted with these allegations the worker ultimately accepted that his answer to the drug offence question was a lie. He provided the following apparent explanations for that lie:
i) “Does it say in there that we must supply the boss with drugs too because we did”;
ii) The various findings of guilt could have been without conviction; and
iii) “The boss told me to lie”.
K. The witness either directly said, or agreed with the following propositions:
· His boss is a liar
· His boss is a pig
· A particular medico legal orthopaedic specialist, "It's a wonder he can barely breathe, he wouldn't know shit from clay” …“he's that old that he wouldn't know what he says."
· Mr Marr is a perjurer.
· Question: ‘I suggest to you on behalf of Woolworths no such injury occurred. No such event occurred such as this crashing of the boards?’ Answer: ‘No, it was the unicorns that did it.’
L. The worker's criminal history
The worker's criminal history record was tendered. He has recent convictions for dishonesty (obtaining property by deception, making false document, using false document to prejudice another, modifying database to cause impairment), possessing methylamphetamine and possessing amphetamine.
The plaintiff’s submissions
Mr Jens QC for the plaintiff fought a valiant rear guard action. He asked rhetorically what motive could the witness have to manufacture the Woolworths incident. There was, he said, unambiguous evidence that the worker had worked uninterrupted for roughly ten years before March 2010, and in the early hours of 2 March 2010 he was, on any view, at Woolworths. Thereafter, he travelled to Adelaide, to Robinvale, and then Brisbane, and by 5 March 2010 he was undoubtedly complaining of a serious injury to his shoulder.
The rhetorical question posed by Mr Jens, in my view, effectively reverses the burden of proof. It is not for the defendant to provide a motive for what it asserts are the worker’s lies. It is for the plaintiff to satisfy me, on balance, that the impugned incident actually occurred. For the reasons expressed above, I am not so satisfied.
I also observe that during the hearing Mr Jens endeavoured to establish an evidentiary basis for a Jones v Dunkel[2]-type inference to be drawn against the defendant for failing to call the Woolworths forklift driver who must have unloaded Mr McAlister's vehicle on 2 March 2010. It is sufficient to say that the evidence did not provide a foundation for this inference, and Mr Jens abandoned this point in his final oral submissions.
[2](1959) 101 CLR 298.
Before concluding my answer to question a)[3], I ought clarify one aspect of my reasoning. I am satisfied that at some time between 1 March and 5 March 2010 the plaintiff’s shoulder either became symptomatic or more symptomatic. I am not satisfied that any causative event occurred on 2 March 2010, or about that time at Woolworths’ Mulgrave Distribution Centre.
[3]See [5] above: question a) whether the incident occurred at all.
Returning to the remaining questions for determination set out in [5] above, I answer b) and c) as follows:
b) ‘If the incident occurred, did the worker suffer any injury in that incident?’ My conclusions to the previous question also answer this question; I am not satisfied that the worker suffered any injury at Woolworths’ Mulgrave Distribution Centre on or about 1 March 2010.
c) “If ‘yes’ to a) and b), to what extent was Woolworths’ negligent act causative or a contributor to the plaintiff's injury?” It is unnecessary to answer this question.
Conclusion
For the reasons that I have expressed, I find that for the purposes of s 138 of the Act, Factor X is 0%; Factor A, insofar as it relates to a common law entitlement in relation to a compensable injury to Mr McAlister said to have occurred at Woolworths’ Mulgrave Distribution Centre on 1 March 2010, is $0.
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