Yaqub v S M Interiors (Vic) Pty Ltd
[2011] VCC 136
•21 January 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-00414
| WALLY YAQUB | Plaintiff |
| v | |
| S M INTERIORS (VIC) PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 October 2010 |
| DATE OF RULING: | 21 January 2011 |
| CASE MAY BE CITED AS: | Yaqub v S M Interiors (Vic) Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 136 |
RULING
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – Section 5, section 82 – whether injury “arising out of or in the course of the employment” – preliminary question.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A M Malpas | Victorian Compensation Lawyers |
| For the Defendants | Mr M J Richards | Herbert Geer |
| HIS HONOUR: |
Preliminary
1 The plaintiff, Wally Yaqub, who I shall refer to as “the worker”, claims compensation pursuant to the provisions of the Accident Compensation Act 1985 (“the Act”) for personal injury suffered by him on or about 31 March 2009 arising out of or in the course of his employment with the firstnamed defendant, S M Interiors (Vic) Pty Ltd (“the first defendant”), who I shall refer to as “the employer”. The employer denies that the worker is entitled to any form of compensation.
2 The worker; Mr Hameed Arab, a former leading hand of the employer; and Mr Mark Komadina, an owner director of the employer, all gave evidence and were cross-examined.
3 The plaintiff tendered the following evidence:
(a)
Unsigned statement of Mr H Arab dated 14 July 2009 at p.28 of the Defendant’s Court Book (“Exhibit A”).
The defendant tendered the following material:
(a)
Photograph with arrows on it, identified in the evidence to be the place where the incident occurred; (“Exhibit 1”)
(b)
Statements of Mr M Komadina dated 20 July 2009 and 17 June 2010, respectively at pp.24 and 26 of the Defendant’s Court Book;
(c)
Statements of Mr D Samarinoff dated 14 July 2009 and 17 June 2010, at pp.30–33 of the Defendant’s Court Book;
(d)
Statements of Mr V Samarinoff dated 14 July 2009 and 17 June 2010, at pp.34–37 of the Defendant’s Court Book; and
(e)
Statement of Mr D Kasalow dated 17 June 2010 at p.38 of the Defendant’s Court Book (“Exhibit 2”).
The Proceeding
4 The worker alleges that:
(a) He was employed by the employer from 24 July 2008 as a plasterer; (b) On or about 31 March 2009, he suffered injuries to his lumbar spine, left arm and a mental or behavioural disturbance or disorder arising out of or in the course of his employment with the employer; (c) He lodged a claim for compensation and medical and like expenses pursuant to sections 93 and 99 of the Act, and that the second defendant rejected such claim; and (d) He has complied with the conciliation provisions of the Act. The worker seeks weekly payments for incapacity, together with the payment of medical and like expenses in respect of the alleged compensable injuries.
5 I was informed by the parties that notwithstanding the non-admission of employment in the Defence, the major issue was whether any injury suffered by the worker on 31 March 2009 “arose out of or in the course of” his employment with the employer. The parties requested that this issue be heard as a preliminary question.
6 I acceded to such application, and pursuant to Rule 47.04 of the County Court Civil Procedure Rules 2008, I ruled that I would decide such issue as a preliminary question.
Factual Matters Not in Dispute
7 The worker is a twenty-nine-year-old (born 23 December 1980) who was born in Afghanistan and came to Australia as a refugee in January 2001. He had a few years education in Afghanistan, but is able to speak English. He is a married man, but has been separated from his wife since May 2009.
8 On or about 24 July 2008 he commenced employment with the employer as a plasterer, working with a gang of plasterers, most of whom were Afghani. The leading hand of such gang of plasterers was Mr Hameed Arab. The co-owners and directors of the employer are Mr Mark Komadina and Mr Stepio Cassalo. The employer is involved in the plastering and carpentry fit-out of various housing developments. In March 2009 the employer was engaged to do various work at a site in Howitt Street, South Yarra, with the head contractor being Icon Constructions.
9 Some of the documents refer to the worker as Ahmad Waleed Ghafoori, which was the former name of the worker. Other than a short attempt to resume employment with the employer, the worker has not worked since 31 March 2009, and he is presently being paid Centrelink benefits.
The Evidence of the Worker
10 In his evidence in chief, the worker described that on 31 March 2009, at a quarter to five, he started packing up, and brought downstairs the few tools that he was using, to lock them up in an office. He then described how he:
“... come outside, because every day was gathering in the front of the job – I’m a smoker – after work and lunch for just to have a cigarette and chat and say goodbye to the boys. All the boys was – we were gathering in there, was from SM Interior. There was about approximately ten to 15 people was working ... .”
(T11, L9-16).
11 Although the worker would have smoko and lunchtime in the shed (on the work premises), he would come outside for a cigarette. On 31 March 2009, about six or seven workers from the employer met in a public area immediately adjacent to but outside the worksite.
12 The worker described the circumstances of his injury as follows:
“I’ve come outside and had a chat with the boys and just gone to sit down to have a cigarette and about to sit down on the wall, it’s about – it’s chair height wall and it’s sort of a bit away from the building, and that wall I about to sit down and there was some gumnuts on the floor and I slipped and I couldn’t balance myself, I hit my back like on the curve on the right side of my back, and then fell on the left side ...”
(T12 L11-18).
13 Under cross-examination, the worker gave the following evidence:
•
He agreed with the suggestion that part of the conditions of working on the Howitt Street worksite was that there was to be no alcohol on the site, and smoking was not permitted after the windows had gone in and painting commenced.
•
There was a shed on the site where you could leave your tools, have lunch and smoko. However, you could not smoke in there, and you could not drink during work hours.
•
In the shed there were some lock-up tool boxes where you would go in the morning to collect tools to be used during the day and where you would go in the afternoon at the end of your shift to put away tools.
•
The shed was also the place where you would change into your work clothes if you were wearing different clothes to work during the day, and change at the end of the day.
• On 31 March 2009, he:
– had finished the physical work of plastering at about quarter to five; – went to the shed and locked up his tools that he had been using; – changed from his work clothes into his casual clothes to go home; –
left the site where he had been working and went to an area at the front of the worksite which, although not in the worksite, was right next to the worksite where trucks entered.
•
He did not see anyone drinking alcohol that day, although in the past people had had a drink if they wanted.
•
The worker was asked a series of questions in relation to what occurred at these “gatherings”:
“Mr Yaqub, these gatherings which happened were very informal gatherings, not planned? Sometimes they happened, sometimes they didn’t?---It’s every day happened, every day before we go, we come there and say goodbye to everyone, and sometime we talk about what we do tomorrow, or someone is not turning up, they saying they are not going to come, or something like this. Stuff like this can happen there.
HIS HONOUR: When you say ‘what we do tomorrow’, what do you mean by that?---Sometimes we have to plan what to do tomorrow, like it’s not exactly the same site you work every day. Sometimes the supervisor will change you and say, ‘Tomorrow you will go to this job’.
So who would – if that happened, would it be the supervisor who told you at that gathering, where to go the next day?---Yes.”
(my emphasis)
(T22 L9–24).
• He denied grabbing an unopened can of beer immediately before he fell, although admitting that he had drunk alcohol on previous occasions, as did other workers. • If beer was drunk it was supplied by the workers who were drinking, and if you were drinking coffee you had to go into the shed on the premises to obtain coffee from the coffee machine. • Again, when questioned in relation to whether he had to “stay” after work hours, the following evidence was given: “It wasn’t the situation that you were told by your boss that you had to stay after work hours in the courtyard to be told what work you were doing the next day, was it?---By the supervisor, yes.
I put it to you that you weren’t told by your supervisor whenever you finished work you have to stand in the courtyard while I tell you what to do the next day?---Yes, that too and plus we had to wait for the other boss to come out too, we can drop them off because five, four people was coming in one car together.
You would all take your own private transport?---No. I was coming with
other people too.
You would come with other workers?---Yes.In the one car?---One car.
It wasn’t a bus or a van provided by SM Interiors?---No.
To pick you up or drop you off?---No.
Who do you say the supervisor was that would tell you what to do at the end of the day?---Mick, I don’t know his surname and Mick and Hamid Arrop.”
(T24 L6–24).
• He thinks he walked from the building site with Hameed and David. • When asked about what Mr Arab was talking about on the evening of 31 March 2009, the following evidence was given: “What was Mr Arab talking about when you just there?---Like I said before, sometime about tomorrow, sometime just say goodbye to the boys and thanks the boys about well done about what they did today, they did a good job or they didn’t work properly or anything about the bosses was getting complained and stuff like this he was saying to us, this job you done, this is not a good job you’ve done today or well done, you have done a good job today, that’s how you have to work and stuff like this he was talking. And sometimes he will say tomorrow, you don’t have to come to this job, you have to go to this job because you need to do, finish that job or for example or had another job down in Jeffcott Street.
...
You didn’t have to meet at the end of the day if you didn’t want to though, did you?---No we had to come outside, we had to wait for the boys and we had to wait - - -
You had to wait for the other boys if you were going in the same car, is that correct?---Not just that, even – all of us, we had to wait for Hamid to give us clearance to go.
You had put the tools away, changed into your casual clothes. You could go home then and there if you wanted to?---I – I wanted to but if I go like this he’ll get upset the next day, he’ll say why did you leave before something this and that.
...
Again Mr Yaqub, if you had simply changed into your casual clothes, put the tools away, you had driven there in your own car, you could have left the site and gone home if you had wanted to without waiting around to have a cigarette or a drink or have a chat?---Yes, I can go home but I – like I just said before, the supervisors Mick and thing, Hamid, was not going to be happy if we were doing that.”
(T25 L14 – T26 L25).
•
At the close of his cross-examination, the court confirmed that he had been working at that site for “approximately six months, three months. I’m really not sure.” The work was from Monday to Saturday. He was then asked:
“Monday to Saturday. Over that period of time, was it every day or some days that you met outside the way you’ve described?---Every day we were standing there before we go, every single day we were standing there. If we were finishing on Fridays we were finishing 3.30, we standing there. Like five to ten minutes before we were packing up to quarter to – the time we were supposed to finish we packing up and we going stand there waiting for the other boys to come and Hamid come and like.
Approximately how many people in the gang from SM Interiors, how many men?---About approximately – over ten.
Over ten?---Over ten on that, such a time.
What do you say as to how many of those men met the way you say you met outside the building site each night?---Six or seven of them.
What happened to the other two or three?---The other ones was working like, some of them they didn’t even speak English, they’re Chinese and they had their own supervisor and they were talking and their own thing and some of us was Afghan which Hamid was Afghan and we were coming and speak English like – well my English was good out of all of them, most of the time I was the one translating everything, like explaining everything to the boys, whatever was anyone saying, whatever was the bosses was saying.”
(T27 L8–T28 L1).
• After arriving at work and changing clothes in the shed, Hameed would give instructions about what to do, but not always, as he was very busy. 14 In re-examination, the worker gave the following pertinent evidence:
• His fall occurred at 4.55 pm, and the shift finished at 5 pm. • If he left before 5 pm he would upset the supervisors. • He was supposed to stay at work until five o’clock.
The Evidence of Mr Hameed Arab
15 The solicitors for the worker called Mr Arab, who described himself as a self- employed builder but was working as a supervisor for the employer as at 31 March 2009.
16 I refer to certain parts of his evidence in chief:
“Were you present at the site in Howitt Street, South Yarra on 31 March
2009?---Yes.Could you tell His Honour what happened at the end of the working day on that day?---I go down the site to see all the boys and sometime we make a meeting to – I tell the boys still standing outside I tell them what to do tomorrow morning, and that day I (indistinct) remember, meeting is not – but I coming outside I see and we talk to the boys, and I see Wally fall down, his back – he hold his back and I tell him what’s up and he said, ‘I fall down’ – the (indistinct) of the concrete I saw, and that day I tell him you okay, he say yeah but he going to home and tomorrow morning he can’t work, he come (indistinct) work and he go see the doctor.
At about what time did he fall?---Around five minute to five, like around that time, you know. I’m not exactly - - -
What time did his shift finish?---He finish – like we finish five o’clock, but he finish like five, ten minutes before. Sometimes we spend another ten minutes more extra, you know, it depends on the job, it depends pack up all the tools and put them in the locker boxes and sometimes ten minutes less and sometimes ten minutes earlier, it depends on the work.
You were the supervisor on the site?---I’m a second supervisor, yeah.
Was Wally expected to stay until five o’clock?---Yes.
HIS HONOUR: Why was he expected to stay to five o’clock?---Because we stay – every day we stay until five, and sometimes the boys want to like going earlier they tell me like you want to finish 3.30. Sometimes, you know - - -
I didn’t hear what you said, sorry, just repeat what you said?
---Sometimes the boys want to like go earlier, like go earlier - - -Go early?---Yes. They tell me like you want to finish 3.30, but sometimes boys going 12 o’clock, sometimes one o’clock, and that day he didn’t said to my anything, he (indistinct) to five o’clock.
...
Were other workers gathered outside?---Yeah, all be together like - - -
Was it a regular thing for them to gather there at the end of the day?
---Sorry?Did they often go there at the end of the day, were there at the end of the day?---Yeah, every time they’ll be finish sometimes the boys standing there, sometime I make a meeting. They finish work and stay another five minutes outside I want to talk to the boys, you know, it depends - - -
...
When you spoke to them what sort of things did you say to them?---For like arrangement for tomorrow to the boys where have to do work, what have to be done, you know, that things.
You say sometimes you would talk about work - - -?---Yeah. and I want to talk to the boys about
...You describe yourself as a supervisor, or the second supervisor. Who was the boss supervisor?---Is another guy, his name Mick, because that guy will be supervising the framing carpenters and I was supervising for plastering.
In your gang of men that you were supervising how many men were there?---Depends, like we got too many jobs, like every job is three, four, and that job I’m not sure is a 12, 13, 15, I’m exactly not sure how many is - - -
I see. Were most of the people Afghan, are you Afghan?---Yes.”
(my emphasis)
(T35 L2–T37 L12).
17 Under cross-examination, Mr Arab gave the following pertinent evidence:
• Steve or Stepio, who was one of the co-owners of the company, was above him as a supervisor. • Steve would tell Mr Arab “what you have to do and sometime I tell the boys ... I’m more ... to control the boys than Steve.” • Steve was not there all the time on the site. • In relation to any discussion about work at the time of the worker’s fall, the following evidence was given: “When you say at these gatherings you would talk to the boys about work you can’t say whether that’s what you were talking about when Mr Yaqub fell back in March of last year, can you?---Yes.
Do you understand the question?---Can you explain to me again.
Sometimes these gatherings were just for people to have a drink, is that right?---No, they not drink, but the boys sometime they want to buy a drink and drink. I not to tell them to buy drinks - - -
I withdraw that. You didn’t tell them to come and have a drink, but often the boys would get together to have a drink, is that correct?---The boys want, yeah, sometimes wanted to standing and drink and sometimes - - -
- - -
- - - when they were having a drink, is that correct?---No, I say sometime
we talk about the works and I tell – I arrange a meeting and after workSo you say sometimes you would arrange a meeting for the boys to meet after work?---Yeah.
That wouldn’t happen every day, would it?---No, sometimes.
And if someone didn’t want to go to the meeting that you had arranged they could leave work and go home, could they not?---They – I tell the boys, they knows they staying, they know (indistinct) I can’t find do the job, you know, too busy and I miss (indistinct) and they may be gone.
Even though you say you would tell the boys to stay for a meeting they did not have to stay if they did not want to?---No, (indistinct) say to them stay, they stay, you know, I don’t – sometime I forgot some of them, they be gone after five o’clock.
So some of the boys would go home?---Maybe, yes.
You were really trying to explain to the Afghani boys what work they had to do at these meetings?---Not just Afghanistan, (indistinct) to the Chinese.”
(my emphasis)
(T38 L23–T39 L27).
• Later Mr Arab was again queried about the nature of the meeting on 31 March 2009: “So not everyone was there on that day?---No, because I – I’m not think so that that day be meeting, to arrange meeting. When I be in a meeting and they’d be all standing.
So on that day you didn’t actually arrange a meeting?---I’m not remember that day.
But if you had arranged a meeting you would expect everyone there?
---Yes.But on that day you can’t remember arranging a meeting, but not everyone was there, is that right?---Yes.
So if not everyone was there is it more likely that you did not arrange a meeting on that day?---M’mm.
Yes?---Maybe.
HIS HONOUR: Why would Mr Yaqub be there on that day?---Because this guy, one of the guys, sometimes I go there and he was locking the things, office, and I just got one key and I give it to him, one key, because I trust him because he’s – I’m going sometimes early. He was the guy standing all day every day till five sometimes. He’s locked the doors and clean up everything and put the tools in the locker and after lock the office and after (indistinct).
So he locks up the office, he locks up the shed?---Not all the time, but sometime, you know, sometime I go earlier he was - - -
I still don’t understand though, and only answer this if you can, why was Mr Yaqub in the area where he fell on that day, why was he there then? ---Because that job is finished and that’s why he I think – he talk to the boys for five minutes and after he want to go, something like that, I’m not exactly remember why he’s that day he be there, because the job is really not finished, five, ten minutes to five (indistinct) we go in five o’clock exactly, and we can’t (indistinct) the boys earlier, ten, 20 minutes, because the company pay up to five o’clock. They have to stay on site until five o’clock, they have to work.
But how about the boys that left earlier, you said some boys had left earlier?---Yes, sometimes the boys tell me they want to go earlier and they working eight hours, they working nine hours - - -
I see, then you note how many hours they worked?---Yes.
But you say Mr Yaqub couldn’t leave before five o’clock?---Sorry?
Are you saying Mr Yaqub could not leave before five o’clock?---No, he have to stay to five o’clock that day.”
(my emphasis)
(T40 L16–T41 L27).
• Later, Mr Arab was again pressed why the worker was at the place where he suffered his fall: “But you can’t remember whether you arranged for a meeting of the boys that day?---(Indistinct), like all day I working and the boys (indistinct) to me and sometime I don’t think everything (indistinct) remember, you know.
HIS HONOUR: I didn’t quite understand your answer to that. I think you said that sometimes you arranged meetings with the boys - - -?---Yeah, sometime - - -
- - - in the area where Mr Yaqub fell over?---Because the area everyone go standing because they allowed to smoke. In the side is can smoke. That’s why I arrange meeting outside and to five minute, ten minute, so everyone who want to smoke, you know, that’s - - -
Have I got this right, and you tell me if I’ve got it wrong. Mr Yaqub on that day could not leave before five o’clock, is that right or wrong?---No, is not have to leave, or why – he have to leave he should be tell me before that.
Yes, but if he doesn’t tell you he has to stay until five o’clock?---Yes.
If they want to smoke or drink or just talk the area where they met is that
where they did that?---Yes.
And they stayed there until at least five o’clock?---Yes, they have to stay
to five o’clock, like we going five o’clock, I finish, like two, three minutes- - -
The other thing I don’t understand is you said Mr Yaqub – I think you did and I just want to clarify this – he sometimes I think you said locked up the shed, he had a key, did he?---Yes.
Did he have to give that key to you?---No, he didn’t give me that day the key. It’s not his own key, I give it to him the keys because sometime I come in late and I going earlier, should be someone got a key in the site to close the doors and open the doors.
I see. But has that got anything to do with him being around the place where he fell on that day and him having the key or not? Do you understand what I’m asking?---(Indistinct response.)
No, that’s fine. I understand you to be saying that he had a key to open
- - -?---He’s got all the time key.
All the time that he was - - -?---It’s – it’s the key, yeah.
Him having the key all the time, did that have any role in him having to be outside when he was when he fell?---Yeah, but sometimes like he – he want to lock up the – the sheds, and he have to go in and see the boy standing here and want to stay with the boys and sit and talk to the boys, some time, you know, like that kind of things.
But why didn’t you want to see him talk to the boys?---Because - - -
Was it anything to do with the key or something else?---No, no, that has not to do anything with the key.
MR RICHARDS: So, nothing to do with the key?---No.
Mark, your boss at the time, will give evidence after you, and he will say that it was not your role to talk to the boys at these gatherings about what work they had to do?---Well, it’s up to me because I’m in charge to finish, I’m responsible to giving the job to them, and it’s my role to tell the boys what they have to done to how much the job be done to be finished. It’s not to him. When I am not in charge, is not up to me, and when I’m in charge of the jobs, that’s I’m responsible and I have to be finish the job, how long and how - - -”
(T42 L12–T44 L9).
18 During re-examination, Mr Arab gave the following evidence (in part):
“And, at the end of the day would Wally lock up after the others had left? ---That day I not sure if Wally lock up and me and Mark, I’m not sure, I exactly I don’t remember that.
MR RICHARDS: Did some days Wally lock up though?---Yes.
Not always but sometimes?---Yeah, sometimes.
If he locked up would he have to be the last person to leave?---Yes. expected to stay till five o’clock at the end of the shift?---Yes.”
(T46 L2–L11).
The Evidence of Mark Komadina
19 Mark Komadina described himself and Stepio Cassalo as the owner directors of the employer.
• All the orders were given by Stepio to Mr Arab or directly to other workers. • Mr Arab was a leading-hand plasterer and was paid more than the other labourers, and was a “conduit pipe” between Steve and the Afghanis. • He was aware that various workers on occasion met at the end of each working day, and he considered such meetings to be a “drinking session”. • He did not know who drinks. • When asked why they would be there, he stated: “I got no idea, sometimes just for the fun of things, telling each other dirty jokes, wrestling, mucking around. That’s what boys do, you know.”
(T50 L15–18).
•
The area where these meetings took place was a normal public area that the public uses.
•
He disputed that the worker would have the authority to lock up the Icon site, but maybe had a key to the toolboxes.
•
He had left the site earlier than when the incident occurred, but accepted that on this particular day the working hours may have been to 5 o’clock.
• In order to be able to drink or smoke they had to be off site. •
He was also asked about hours of work, and he gave the following evidence:
“What was the normal practice with respect to working a shift? Did they work until the completion of the shift, or did they prepare to go before the end of the actual working shift as such?---If – if we worked till 5.30 – or five for that matter – Stepio’s very precise about time, and he would really clobber them about it, so once they’re out of that gate and they’re going home here they’ve knocked off, so therefore there’s no coming back, they’re gone.
What do you mean ‘Stepio would clobber them about the time’?--- Well Stepio’s very precise, for example, he doesn’t want people showing up at seven o’clock when they’re supposed to be starting – they usually show up half an hour early and had a coffee. Knockoff time he’s so precise, he doesn’t let them muck around, he’s saying, ‘You’re entitled to your five or ten minutes for wash – for wash up time and you go home after that’ - - -
HIS HONOUR: So when you go home that’s your knockoff time? ---That’s your knock off time. No going back, have a – have a cigarette and a drink and come back to the job, there’s none of that.
So if knockoff time is five o’clock on this particular day, Stepio would expect it to be – that’s their job up to five o’clock?---That’s correct, yes. And if anybody wants to leave early he would notify me so that I can then make sure that they get correct payment, rather than incorrect payment for work they haven’t done.
MR RICHARDS: With respect to the knockoff time is what you’re saying for the last five, or ten minutes they would be cleaning up, and putting away their tools and getting ready - - -?---That’s correct.
HIS HONOUR: Tell me this, if this is the fact of the matter that knockoff at five o’clock, and about 15 minutes prior to that they clean up, and put their tools and – ten to 15 minutes prior to that they clean up and put their tools away, and walk out to the area where you’ve been taken to where he had his fall, would they be paid to five o’clock, or would they be paid to quarter to five, or ten to five?---Stepio’s very precise about that – and that’s what I said earlier – that if anyone leaves early he’ll make sure that they don’t get the full time, and some occasions where Victor and Mick would actually knockoff early because of their drinking, and he would come up and say, ‘Mark, they’ve only got eight and a half hours instead of nine hours’.
What would be the situation if Mr Yaqub was paid till five o’clock on that day?---Well then – then he would’ve been working till five o’clock, but I – I can assure you that if he went out and sat down and had a drink with the boys he would not have been in work hours, because Rob wouldn’t allow it to happen either, the OH&S officer.”
(my emphasis)
(T54 L23 – T56 L10).
•
He confirmed that when a worker had cleaned up and got ready to go home and physically had left the building site, that was when they had “knocked off time, finished” (see T56 L26-27).
• In relation to the role of Mr Arab, the following evidence was given: “I am suggesting from Mr Arab’s point of view, we’ve heard some evidence from the plaintiff that Mr Arab when he was there, or when the plaintiff was there, there was discussion about, perhaps not in precise terms, but in general terms about what has to be done next and you better get a move on there, that type of work talk?---He might have said something in relation to work, maybe Stepio said you’ve got to finish the floor tomorrow or something, along those terms, but - - -
He was there to crack the whip on the Afghanis, wasn’t he, he was there to make sure that they understood and did the work?---I think indirectly perhaps, but Stepio was there, the whip man, and indirectly perhaps, you know, if you’ve got a leading role of some kind obviously you have to - - -
You’ve got a role, haven’t you?---Yeah, you’ve got a role, yeah.”
(T58 L16-T59 L1).
Other Material
20 Both parties tendered the statements contained in Exhibit A and Exhibit 2. I have put little weight on such statements given they are not in affidavit form, but do note the following:
(a)
In the statements made by David Samarinoff, Victor Samarinoff and Daniel Kasalow, there is no suggestion that the gatherings of the Afghani workers in the public place adjacent to the worksite were arranged for any work-related purposes (although it is unclear whether such persons were expressly asked that question); and
(b) In his statement, Mr Mark Komadina states, in part: “Mr Ahmeed Arab was the main contractor employed by myself to
run the site on my behalf and in my absence. … .”
Relevant Legal Issues
21 Section 82(1) of the Act states:
“If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.”
(emphasis added).
22 The words “arising out of or in the course of” have been the subject of many decisions relating to workers’ compensation law. I refer to Fitzgerald v W.G. Clarke & Son [1908] 2 KB 796 at 799 where Buckley LJ stated:
“The words ‘out of’ point to the origin or cause of the accident; the words ‘in the course of’ to the time, place, and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place.”
23 It is well established by authority that “employment” in this expression includes the doing of acts which are merely incidental to the performance of work which the worker is engaged to perform. The principles were enunciated in the following two leading cases. In Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, Dixon J stated, at p.294:
“To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. ... Where the accident arises shortly before the beginning of actual work, or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected, or authorised to do in order to carry out his actual duties.”
Later, in Humphrey Earl Ltd v Speechley (1951) 84 CLR 126, Dixon J stated, at p.133:
“The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties.”
24 It is to be noted that in Speechley, Dixon J leaves out the word “actual” to describe the word “duties”.
25 In the matter of Henderson, Dixon J referred to those circumstances where injury occurs in the course of activity that takes place between an interval or interlude between employment. In Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 the High Court restated the law in relation to such circumstances. I am of the view that on any version of the facts such activity is not applicable and I say no more on that issue.
26 Over the years, the test enunciated in Speechley/Henderson has been applied generously, no doubt reflecting, in part, changing industrial circumstances. I refer to the decision of Reid Stockfeeds Pty Ltd v Lindhe [2008] VSC 304 where Kyrou J, in discussing the application of the words “in the course of” stated, at paragraph 17:
“ Many cases have applied the Henderson principle, with some retaining the word ‘’actual’, and others omitting it. Although not all of the cases have used the same language as Dixon J in Henderson and Speechley, they have all required that there be a nexus (which has sometimes been very slight indeed) between the relevant activity and the work or service that the employee is employed to perform, with most specifically referring to that activity as being incidental to the work or service. The outcomes of the cases have varied and have largely turned on their facts. A trend, however, can be discerned towards the adoption of a more liberal approach to whether something is ‘in the course of’ employment. It is only possible to reconcile the application of the Henderson principle with decisions in many modern cases by a strained interpretation of the words ‘in order to carry out his actual duties’.”
(my emphasis)
27 The words “reasonably required, expected or authorised to do” as used by Dixon J in Henderson (op.cit.) and Speechley (op.cit.) have been further refined over the years. The more liberal approach referred to by Kyrou J in Reid Stockfeeds (op.cit) is exemplified by the following decisions:
(a) In Park v Peach [1967] VR 558, Adam J (on behalf of the Full Court) stated, at page 565: “In every case it is a question of fact whether the activity in which the worker is engaged at the relevant time was sufficiently connected with his employment as to warrant the conclusion that he was in the course of his employment. The remoteness or otherwise of the activity from his employment becomes a matter of degree. … .”
(b)
Hickox v Education Department [1974] VR 426 (a case in which the worker lost), wherein the Full Court stated at page 430:
“Where a worker, whilst not performing the actual duties of his employment, was caused injury at a time and place doing something which might be regarded as reasonably incidental to, consequential upon or ancillary to, his employment-- not necessarily being required to be done as part of his obligations as an employee, but rather as something that would be reasonably required, authorized or expected of the worker by his employer, as inferred from the facts and circumstances of the existing relations between the worker and the employer -- then the worker is entitled to compensation as having suffered injury in the course of his employment.”
See also Fitzgerald v Ainsby Rubber Co [1987] VR 437.
28 Accordingly, I am of the opinion that the so-called Henderson/Speechley test is apposite in determining whether or not the activity of a worker can be appropriately described as “arising out of in the course of” employment.
Findings of Fact
29 The evidence given by both the worker and Mr Arab was without the assistance of an interpreter. Although both witnesses could speak English, I gained the impression that on occasion Mr Arab, in particular, had difficulty enunciating what he wished to convey. One of the reasons I have set out large amounts of the transcript in this ruling is to convey to the reader what I believe to be the thrust of their evidence.
30 I make the following findings of fact:
(a)
At all material times the worker was employed by the employer as a plasterer.
(b)
At all material times he was engaged to work as a plasterer at the Howitt Street building site in South Yarra.
(c)
At all material times Hameed Arab was a leading hand of the employer, and, in particular, was a “conduit pipe” between the owners of the employer and the Afghani gang including the worker. He was required to “crack the whip” over the gang of the plasterers.
(d)
On 31 March 2009, the worker, at 4.45 pm, started packing up, went downstairs to the office and locked up his tools, changed into non-work clothes, and left the worksite to join some of his work gang in a public place immediately adjacent to the worksite.
(e)
The worker suffered personal injury when he fell off a wall in the public area adjacent to the worksite at approximately 4.55 pm.
(f)
The employer strictly enforced work hours, and if someone left early they would only be paid for the number of hours that they worked.
31 It was submitted on behalf of the worker that his injury arose in the course of his employment with the employer in one of essentially two ways:
(a) that being at the gathering of Afghani workers immediately adjacent to the work site on 31 March 2009 was an “incident” of the worker’s employment with the employer, in that work issues were discussed at the meeting and that it was an event which occurred after the physical work had been completed on any particular day; and (b) in any event, the worker was required to remain until the end of his shift – 5.00 pm – and, accordingly such injury occurred during the course of such employment.
32 On all the evidence I do find as a fact, that various members of the Afghani plastering gang met for a drink and a smoke after work at a place outside the worksite but adjacent to the worksite. I also find that such gatherings were essentially social in nature and extended for an indeterminate period of time. In particular, I do not find that such gatherings occurred to “fill in time” up to the appointed “finishing time” of any particular shift. Not all Afghani workers would attend all such gatherings and there would appear to be, on the evidence, a particular group which enjoyed meeting, having a drink of beer and a smoke.
33 In one sense, I suppose, it can be said that the Afghani workers would not have been at such gatherings save for their employment with the employer. It is to be noted that the workers were not allowed to either drink alcohol or smoke on the building site. However, I am not satisfied that such gatherings were an incident of the employment in the sense that they were connected with the employment to warrant the conclusion that the worker was in the course of his employment at that time. Certainly, there is no evidence that the employer reasonably required, expected or authorised the worker to attend such gatherings. Indeed, the evidence is to the contrary.
34 Curiously, the evidence from the worker in relation to work activities being discussed at such off-site gatherings only came out in his cross-examination. If such evidence was contrived, I would have assumed that it would have come out in his evidence-in-chief, and formed the impression that, in the absence of such a situation, the worker did not appreciate the potential significance of such evidence, making it more likely to be true. Moreover, one could well understand that at such gatherings, Mr Arab, being the leading hand of the Afghani gang, may well have discussed issues pertaining to work with members of the gang on occasion. As I comprehend the evidence of Mr Arab, he would, on occasion, arrange for the Afghani workers to all meet at the site adjacent to the worksite to discuss work matters.
35 After a consideration of the evidence, I am satisfied that on occasion, Mr Arab arranged for all the Afghani gang to meet at the place adjacent to the worksite in order to discuss work matters, including the performance of various workers, the distribution of work the following day and particular issues pertaining to the work. Contrary to the evidence of the worker, I am not satisfied that one of the purposes of such gatherings was always to discuss work matters.
36 I do point out that I am of the view that if the gathering of workers of 31 March 2009 had been arranged by Mr Arab to discuss work matters, and the worker suffered injury during that activity, such injury would be an injury in the course of his employment as such activity was an incident of the employment.
37 Given the evidence of Mr Arab, I am not satisfied that a meeting had been arranged to take place at the site adjacent to the worksite on the afternoon of 31 March 2009 to discuss work matters. Any gathering on that date, can only be characterised as a social activity attended by some of the Afghani workers.
38 Furthermore, I also reject the submission that because the worker’s shift did not finish until 5.00 pm on the day of injury, he necessarily was in the course of his employment when he suffered injury at 4.55 pm when going to sit down with his fellow Afghani workers at the place adjacent to the worksite.
39 There is no doubt that the evidence establishes that both Mr Arab and Mr Komadina stressed how the employer was very particular that a worker had to work his full hours or otherwise he would not be paid for time he did not work. I gained the impression that such a policy was to avoid situations where workers would leave the site an hour or more earlier than the nominated finish time without appropriate reason or excuse to the employer, rather than to cover situations where a worker commenced his “knock off” procedure about fifteen minutes before finish time and leaves the premises some minutes prior to his official finish time.
40 If such were not the case, then a worker who left the worksite at five to five and was walking to the tram when he tripped at say two minutes to five, would have suffered injury in the course of his employment merely because it occurred two minutes short of his finish time. In the circumstances of this matter, the worker had finished his work, put away his tools, locked his toolbox, changed from his work clothes to his casual clothes and had left the worksite, albeit, approximately five minutes prior to his designated finishing time.
Conclusion
41 On all the evidence before me, I am not satisfied that the injury suffered by the worker at about 4.55 pm on 31 March 2009 was an injury which arose out of or in the course of his employment with the employer.
42 I will hear the parties on the orders sought and any questions of costs.
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