Yousif v Coles Supermarkets Australia Pty Ltd

Case •

[2022] NSWDC 516

•

25 October 2022

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Yousif v Coles Supermarkets Australia Pty Ltd [2022] NSWDC 516
Hearing dates: 18, 19, 20 October 2021; 26, 27 April; 30 May 2022
Date of orders: 25 October 2022
Decision date: 25 October 2022
Jurisdiction:Civil
Before: P Taylor SC DCJ
Decision:

(1)   The proceedings be dismissed.

(2)   The plaintiff to pay the defendant’s costs.

Catchwords:

NEGLIGENCE - causation – damages - personal injury damages
EVIDENCE – witnesses - credit

Legislation Cited:

Civil Liability Act 2002, s 5B, s 5D, s 15, s 16

Cases Cited:

Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13

Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167

Briginshaw v Briginshaw (1938) 60 CLR 336

Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14

Mason v Demasi [2009] NSWCA 227

TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47

Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19

Category:Principal judgment
Parties: Andrew Yousif (plaintiff)
Coles Supermarkets Australia Pty Ltd (defendant)
Representation:

Counsel:
Mr J Malouf (plaintiff)
Mr N Polin SC (defendant)

Solicitors:
Gerard Malouf & Partners (plaintiff)
McCulloch and Buggy Lawyers (defendant)
File Number(s): 2020/00281892
Publication restriction: None

Judgment

A. Introduction

  1. Andrew Yousif has a spinal injury at the L4/L5 level, which he claims occurred in August 2018 whilst wrapping a pallet of goods at work. He sues Coles Supermarkets Australia Pty Ltd for damages.

B. Issues

  1. Mr Yousif was employed by a labour hire company and was engaged in stacking and wrapping pallets in a large warehouse operation at the Coles Distribution Centre. Coles denies he was injured at work, that it was negligent, and that he suffered any damage. There was a forceful challenge to Mr Yousif’s credit. There was no real issue that the duty of care owed by Coles was akin to that owed by an employer. [1]

    1. TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47, Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 at [139], [143], Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 at [12]-[13].

  2. The issues can be listed thus:

  1. The credit question: was Mr Yousif a witness who could be believed?

  2. When and how did Mr Yousif’s injury occur.

  3. Was Coles negligent.

  4. What, if any, damages were suffered by Mr Yousif.

C. Credit

  1. The challenge to Mr Yousif’s credit focused on four areas: his engineering degree work experience, medical certificates, the impact of the injury on his university studies, and his tax affairs.

(a) Work experience

  1. In 2020, Mr Yousif was studying for an engineering degree. He was required to complete 12 weeks of full-time (37 hours per week) employment as part of that course. [2] When asked about whether he had done this, Mr Yousif said, “I've completed that course, yes, that unit, yes I have”. [3] When pressed, he said, “On paper, yes,” [4] and ultimately accepted that “[I] haven’t done” three months’ full-time work experience, [5] and subsequently, “Yes, no, I have, according to the…to get a satisfactory mark, I've done it, yes”. [6]

    2. Tcpt pp 102(35); 78(25).

    3. Tcpt p 78(32).

    4. Tcpt p 78(36).

    5. Tcpt p 78(48).

    6. Tcpt p 103(6).

  2. Mr Yousif created a diary of his 12 weeks work experience allegedly working with Gemstrux Engineers. [7] He did that after allegedly having daily conversations with one George Saleh during July to October 2020 [8] whom he described as his “cousin’s friend”. Mr Yousif did not know that Mr Saleh used to work for Gemstrux Engineering [9] and ceased being a director in 2018. [10] Mr Yousif “didn't know he was going to leave”. [11] He could not explain why Mr Saleh would sign documents as a representative of Gemstrux when he did not work for them. [12]

    7. Tcpt p 105(4).

    8. Tcpt p 106(11).

    9. Tcpt p 104(17).

    10. Tcpt p 104(29).

    11. Tcpt p 104(35).

    12. Tcpt p 112(8-14).

  3. Mr Yousif did not ever attend the office or the site of the engineering firm, although his diary did not reflect that. [13] Mr Yousif took an objection available to him under s 128 of the Evidence Act 1995 and with the benefit of a certificate continued to answer questions.

    13. Tcpt p 106(36).

  4. Mr Yousif reluctantly, [14] but eventually, accepted that he had never physically met with Mr Saleh. [15] He accepted that of the 60 entries in the dairy: “Almost all of them are false”, [16] and that he “created a fraudulent document to submit to the university for the purposes of getting credit for passing this particular course”, [17] containing such falsities as “going to an office”, “being…introduced to the other engineers” and being “given a work station and an office to work in”. “Yes, that’s all false” he conceded. [18] Some of the entries had nothing to do with what Mr Saleh was said to have told him, but were what Mr Yousif imagined. [19]

    14. Tcpt p 108(36-46).

    15. Tcpt pp 108(49)-109(7).

    16. Tcpt p 109(14).

    17. Tcpt p 109(18).

    18. Tcpt p 109(25-31).

    19. Tcpt p 109(46).

  5. The diary [20] contained a weekly signature purporting to be of Mr Saleh, named as “George S” on all but the first document. Although Mr Yousif never met the alleged Mr Saleh, the diary was said to have been signed by means of Mr Yousif’s cousin taking it to Mr Saleh on one [21] or two [22] occasions. The date of the signature appears to have been written by the signatory, indicating that the diary was signed weekly. [23] Thus, on Mr Yousif’s account, most, if not all, of the signatures were backdated.

    20. Exhibit 2, pp 82-129.

    21. Tcpt p 111(20).

    22. Tcpt p 111(8).

    23. Exhibit 2, e.g. pp 84, 88.

  6. So the 48-page contents of the diary was created out of whole cloth by Mr Yousif. He either forged a real or imaginary person’s signature, or someone else, perhaps George Saleh, falsely attested to the attendance of Mr Yousif and repeatedly backdated his signature. Mr Yousif presented this diary to the university in fulfilment of the unit. He also presented a reference letter purportedly signed by Mr Saleh which, like the diary, is full of false statements. It reads:

“To Whom It May Concern:

I have had the privilege of working with Andrew in my engineering firm. Andrew is a punctual young man, who is always on time. His quick learning and hard work will make him asset to any team. His ability to work individually and in a team made him an important part of the firm in getting work done on time.

Whilst his time at Gemstrux, Andrew worked on a number of projects and mastered a lot of skills in the construction and engineering field. These skills include site inspection and approvals, completing checklists in accordance to plans, designing new structural engineering plans, designing new roof and floor layouts. He also worked on industrial warehouse plans.

Andrew is an asset to any team and company. I would highly recommend Andrew for any future engineering roles.

[Signature]

Sincerely

George Saleh

Gemstrux Consulting Engineers”. [24]

24. Exhibit 2, p 130.

  1. Mr Yousif also presented to the university a nine-page report on his “experience” at Gemstrux. [25] The deceit appears from the first sentence: “This report entails my experiences within the company during my industrial experience”. [26] Thereafter proceeds a fictional account of the work done and experience gained by Mr Yousif, concluding with Mr Yousif’s recommendation to any student “to complete their industrial experience”. [27] Mr Yousif also signed a declaration about plagiarism, [28] which indirectly confirmed the obvious obligation to be honest.

    25. Exhibit 2, pp 131-139.

    26. Exhibit 2, p 134.

    27. Exhibit 2, p 139.

    28. Exhibit 2, p 132.

  2. On Mr Yousif’s account, this fraud was committed in company, with his cousin and Mr Saleh. There was no specific evidence of financial advantage, although generally university units come at a cost, either paid at the time or deferred under the Higher Education Contribution Scheme (HECS) scheme. The fraud involved daily, repeated deception over several months.

  3. Mr Yousif indicated that he engaged in this deception because “I couldn't go to any sites or stuff like that”, [29] and “I have to go to an office and work, which obviously I can't do that”. [30] He accepted that he “never looked at” speaking to the university if “you've got a medical problem”. [31]

    29. Tcpt, p 113(11).

    30. Tcpt p 113(45).

    31. Tcpt p 113(15-16).

  4. I will deal later with Mr Yousif’s medical condition, but in general terms, it does not preclude him from going to an office or a site, although it may preclude him doing some physical activities. Nor did he apply for special consideration to be released from the work experience, although as will appear, he had some experience at doing so in respect of other university requirements.

  5. In the six or seven months after August 2018, Mr Yousif was engaged in restricted duties which involved administrative work. [32] Whether engineering work experience would involve any physical activities beyond his capacity was not explored in the evidence. I was not satisfied that engineering work experience was unavailable to him.

    32. Exhibit A, p 5.3; T67/39-T68/20; T76/5-11.

  6. In any event, Mr Yousif’s explanation for not being honest with the university and not making an application for a modified program, if one were necessary, is unsatisfactory. Any restrictions on some physical activities do not excuse his wholesale fraud for the entire unit. That he accepted his dishonesty, thereby establishing the fraud beyond any doubt, shows some measure of willingness to tell the truth on oath. He was, however, unwilling to undertake any steps to be accountable or show contrition for his fraud. He had not told the university of it and gave no assurance that he would. [33] Further, Mr Yousif’s answers about the existence of and role played by his cousin and Mr Saleh I found to be unconvincing. Neither Mr Saleh nor Mr Yousif’s cousin (who was not named) gave evidence. I was left unsatisfied that his evidence about his fraud was frank and truthful.

    33. Tcpt p 123(36-41).

(b) The medical certificates

  1. Prior to the alleged occasion of Mr Yousif’s injury, on 12 October 2017 Mr Yousif completed a form headed “SPECIAL CONSIDERATION & DEFERRED EXAM”, where he applied “to sit a DEFERRED exam”, [34] as he was “unable to attended tutorial class due to being sick”, [35] had missed a compulsory activity, [36] and a required medical certificate was attached.

    34. Exhibit 2, p 47.

    35. Exhibit 2, p 49.

    36. Exhibit 2, p 48.

  2. Mr Yousif submitted a medical certificate dated 12 October 2017 from Dr Chee Fatt Chan. [37] But Dr Chan had died on 1 December 2016, [38] and it was evident that the 2017 medical certificate was an altered certificate, copied from one dated 2 November 2016. [39] The only change was in the date, as shown most clearly by the transparencies in Exhibit 3. The records produced by Medicare show that Mr Yousif had a medical consultation on the date of the 2016 medical certificate but not on the date of the 2017 medical certificate. [40]

    37. Exhibit 2, p 46.

    38. Exhibit 1.

    39. Exhibit 2, p 45A.

    40. Exhibit 2, p 58, T86/25.

  3. So it appears plainly from a comparison of the certificates that Mr Yousif has submitted an old medical certificate with the dates altered. His answer as to how the different dates got on the medical certificates was, “No, I don't recall that,” and “I don't know, no”. [41] He accepted he may have received a benefit from either not sitting an exam or not having to attend a tutorial, [42] but said that he did not recall seeing Dr Chan in 2016 or 2017. [43] He did recall seeing a doctor about back pain from work in November 2017, but did not recall seeing Dr Chan, but that was because the back pain was “constant pain from something all day” whereas “a throat infection, it goes away quickly”. [44]

    41. Tcpt p 85(29-32).

    42. Tcpt p 85(34-45).

    43. Tcpt p 86(28).

    44. Tcpt p 86(36-38).

  4. The plaintiff accepted that the certificates were identical. [45] It follows that Mr Yousif’s declaration is false, where he says:

“I declare that the information provided by me on this form is true and correct. I agree that Western Sydney University may seek verification from doctors or agencies that the certificates have been issued by them. I also agree to the release of personal information about me for the purpose of assessing this application.”[46]

45. Tcpt p 85(25).

46. Exhibit 2, p 50 at [8].

  1. The false certificate also indicates the likelihood that Mr Yousif was not sick, contrary to what he alleged in the application. Mr Yousif did not give evidence of any sickness.

  2. Mr Yousif said he could not give an explanation for him submitting a medical certificate for seeing Dr Chan on 12 October 2017 although not seeing him, [47] and said he could not recall Dr Chan, was unaware he had died, and repeatedly said he did not or could not recall “because I don't know what happened in 2016”. [48] When asked directly, “Did you alter that medical certificate?”, he said, unconvincingly, “Not that I recall it, no”, [49] indicating, at least, that if he did alter the certificate, it was not a memorable event to him.

    47. Tcpt pp 86(43)-87(25).

    48. T87(10-15), (31-33).

    49. Tcpt p 87(27).

  3. Mr Yousif accepted that altering a medical certificate is a serious matter. [50] He said he would remember doing it, but he did not remember seeing Dr Chan and did not recall altering the certificate. [51]

    50. Tcpt p 88(1-6).

    51. Tcpt p 88(12-20).

  4. I found these answers unconvincing. The forms of the medical certificates, the work and significance in altering a medical certificate to create a false document, the likelihood of him remembering his creation of a dishonest document, and Mr Yousif’s unsatisfactory answers left me persuaded on the balance of probabilities that he altered the medical certificate and submitted it with the declaration that it was true and correct,[52] knowing it to be false.

    52. See Exhibit 2, p 50 at [8].

  5. This same misconduct appears from a comparison of a medical certificate dated 30 May 2018, which, by its form and Mr Yousif’s recorded attendance before Dr Mahmuda Happy at Wetherill Park Medical Centre, appears to be genuine. [53] But a medical certificate on 25 June 2018 is again identical to the earlier May certificate save for the date. [54] Mr Yousif accepted that he submitted to the university an application on 30 May 2018, and an application on 25 June 2018. [55] But when asked how he came into possession of the medicate certificate dated 25 June 2018, he said, “I can't explain how it came in that possession”. [56] The Medicare records shows no visit by Mr Yousif to a doctor on 25 June 2018. [57]

    53. Tcpt p 89; Exhibit 2, pp 68, 73.

    54. Tcpt pp 90(39); T91(15-30).

    55. Tcpt p 92(18-25).

    56. Tcpt pp 92(28), see also 93(44).

    57. Exhibit 2, p 58, T93/28-39.

  6. The medical certificate accompanied an application which Mr Yousif again declared to be true and correct. [58] In respect of these 2018 medical records, Mr Yousif again asserted a lack of recollection. He accepted the alteration of the medical certificate [59] and that he alone would benefit from that alteration [60] but denied he did it, [61] or at least “I’m saying I don’t recall altering it. I don’t even recall receiving the certificate but it would have been me I would have submitted it.” [62] Mr Yousif could not explain it, [63] although he accepted that he was the only person who could or would lodge it. [64] To the suggestion that counsel is correct in that Mr Yousif altered the document, he said, “I'm not saying you're right, I'm not saying you’re wrong, but I can't really comment on something if I don’t have any recollection on it”. [65]

    58. Exhibit 2, p 72 at [8].

    59. Tcpt p 99(33).

    60. Tcpt p 99(35-40).

    61. Tcpt p 99(43).

    62. Tcpt p 99(45-50).

    63. Tcpt p 100(37).

    64. Tcpt p 101(16-17).

    65. Tcpt p 102(22).

  7. These answers and documents satisfy me that Mr Yousif repeatedly altered medical certificates and submitted them to the university with a declaration that they were true, knowing that they were not. His memory may be poor, but he knew it was wrong to alter medical certificates and if he did it, repeatedly, I am satisfied that he would remember. In the result, I am satisfied that Mr Yousif lied on his oath in denying a recollection of altering the medical certificates. These are serious allegations, raising the application of the Briginshaw standard,[66] but I am satisfied of these matters notwithstanding.

    66. Briginshaw v Briginshaw (1938) 60 CLR 336.

  8. Other examples of this conduct by Mr Yousif of falsifying medical documents were in evidence marked Exhibit 4, although they became available and were tendered after Mr Yousif’s evidence. Mr Yousif was given an opportunity to give further evidence about them but refrained from doing so. [67]

    67. Tcpt p 289(3).

  9. Exhibit 4 comprises a medical certificate signed by Dr Raquel Zanetti on 3 May 2014 [68] and one on 11 November 2014 [69] having an identical signature, a misspelling of “severe” as “serve”, “head ache” as two words, and Mr Yousif is identified as “Mast Andrew Youssif”. Apart from it being in a different font, a border on the page, different content in the sentence about the illness, and the initial letter capitalised in the phrase “Thank you”, it is identical to the first document.

    68. Exhibit 4, p 98.

    69. Exhibit 4, p 433.

  10. A further certificate dated 12 November 2014 [70] is identical to the second certificate, save for the date change.

    70. Exhibit 4, p 445.

  11. There is a fourth certificate, [71] which is identical to the third certificate save for the date and the substantive sentence which has different content: it refers to his ability to study being affected by being a carer for his parents rather than any illness.

    71. Exhibit 4, p 457.

  12. A fifth certificate [72] is identical to the first certificate save for “Uni” is rendered “University”, the dates are changed, and the signature is different with a stamp of the doctor’s details.

    72. Exhibit 4, p 577.

  13. The sixth document [73] is identical to the fifth document save that the dates are changed (to about a month later). The change of the date and month is readily observable on the document, indicating with some clarity that the sixth document is an alteration of the fifth document, or they are both derived from some earlier document.

    73. Exhibit 4, p 601.

  14. The seventh document [74] is a medical certificate using the university format for 18 and 19 June 2015. The eighth document is identical with the seventh save for the dates, [75] which are 4 and 5 November 2015.

    74. Exhibit 4, p 574.

    75. Exhibit 4, p 669.

  15. The first four pages each contain an apparently copied signature identical in both form and location. The fifth, sixth, seventh and eight pages each contain an apparently copied signature identical in form and identical in location on the fifth and sixth pages, and on the seventh and eighth pages.

  16. The final five documents of this Exhibit 4 [76] are Mr Yousif’s application forms describing his condition on apparently five separate occasions – where in each case, he spells “severe” as “serve” and once refers to “head ache”. These unusual misspellings are found on the second, third and fourth documents, but not in Dr Zanetti’s handwritten diagnosis on the seventh and eight documents.

    76. Exhibit 4, pp 636, 641, 654, 647 and 655.

  17. These documents together indicate other occasions, like the two examples earlier, where Mr Yousif has copied medical certificates and changed their dates, [77] and other occasions where he appears to have copied or created medical certificates. Although I am cautious about these matters because Mr Yousif has not given any evidence about them, I am satisfied that these are further instances of copied medical certificates [78] and they tend to confirm my earlier conclusion that Mr Yousif has repeatedly created false medical certificates from earlier versions when it served his purposes at university.

    77. Exhibit 4, pp 577 and 601; and Exhibit 4, pp 574 and 669.

    78. Ibid.

(c) University studies

  1. Mr Yousif asserted that the progress of his university degree corroborated the injury he received: that his results were fine before the injury [79] ; that after the injury he could not sit through a two-hour lecture; [80] that it delayed his progress with this degree [81] even though he expects to finish this year; [82] that his concentration diminished after the incident; [83] and that there was no way he could do four units at a time after he hurt his back. [84]

    79. Tcpt p 70(1).

    80. Tcpt p 70(4).

    81. Tcpt p 131(5-12).

    82. Tcpt p 70(23-24).

    83. Tcpt pp 69(38)-70(21).

    84. Tcpt p 70(37).

  2. In each case, these assertions are incorrect. His results before the incident were poor. [85] In the 7 semesters before the incident, he failed 6 of 13 units attempted, effectively passing an average of 1 unit per semester. In the two and a half years or five semesters before the incident, he attempted five subjects and passed only two. In the three semesters commencing when the incident occurred, he passed all nine units, achieving a high distinction, a distinction and several credits. He successfully completed four units and three units in 2019 in the two full semesters after the incident, thus making much faster progress towards his degree. In his most recent semester, shown in the evidence, Spring 2020, he passed all four of his subjects, although one of these involved the fraudulent work experience report mentioned earlier.

    85. Exhibit 2 at p 170.

  3. I do not think Mr Yousif was lying about his university results, but he was reckless as to the accuracy of his answer, taking no care with being correct but giving evidence that seemed to him to suit his case. It supports my view derived from the fictitious work experience documents and the false medical certificates that no real credit can be given to Mr Yousif’s evidence.

(d) Alleged tax fraud

  1. The defendant also referred to an investment property in Smithfield owned by Mr Yousif. Mr Yousif asserted repeatedly that he lived with his parents in Bossley Park [86] but he changed his address to Neville Street, Smithfield in his 2020 tax return. [87]

    86. Tcpt pp 136(42)-T137(8).

    87. Tcpt p 138(49).

  2. The defendant pointed to the circumstance that Mr Yousif himself raised this point when questioned about misrepresenting matters to the Australian Taxation Office. [88] However, I was not satisfied this alone showed any misrepresentation. More concerning was when Mr Yousif later stated, to a suggestion that he had falsified his address to save on capital gains tax,

“I’m - I’m not planning to sell it, anyways. So if it’s sold, then, yes, it becomes a - a fraud, but if no-one’s planning to sell it, then it doesn’t add up to anything, because I’m not claiming anything.” [89]

88. Tcpt p 137(9-28).

89. Tcpt p 144(32-35).

  1. Ultimately, there may be other facts that might impact on this particular issue, and I was disinclined to attribute much weight to it. However, the other matters mentioned left Mr Yousif’s credit destroyed, not for reasons of demeanour, but for reasons of dishonesty. His fictitious work experience, his evidence about Mr Saleh and his cousin that showed a lack of candour, his evidence about the medical certificates, and the recklessness of his answers about his university results before and after the incident, leads me to reject him as a witness of truth. This impacts significantly on the weight I would accord to his account of the incident and its aftermath. I would not rely on his evidence unless it was corroborated or contrary to his interest.

D. The incident

  1. Mr Yousif asserted an incident at work on 18 August 2018. No one else witnessed it, so the Court is dependent on his testimony for precision as to what occurred.

  2. Mr Yousif said he worked Mondays, Thursdays, Saturdays and Sundays, having Tuesdays, Wednesdays and Fridays off for university. [90] Prior to August 2018, Mr Yousif accepted that in November 2017 he had a “sore back from work”. [91] He said:

“I’ve seen a doctor; I took two days off work, and then I’ve receiving a medical certificate for the two days off, where I handed it to my onsite at the time. And it was their job to pass it on to Coles”. [92]

90. Tcpt p 36(15).

91. Tcpt pp 55(48), 56(5).

92. Tcpt p 56(5-8).

  1. The medical note on 4 November 2017 states:

“Right sided back pain – 2 days

Had lots lifting at work

Not on pain killer

Examination:

Restricted lateral flexion [of] lumbar spine

…

Plan:

Rest

Analgesia PRN

Review in 2 days

Actions:

Medical Certificate given.” [93]

93. Exhibit C, p 182.

  1. There is a need for caution about too heavy reliance on medical notes. [94] Yet the record indicates that on Saturday, 4 November 2017 Mr Yousif had back pain for two days, presumably originating on Thursday, 2 November 2017, and that the certificate excused him from work on the subsequent Sunday and Monday, requiring “[r]est” before the “[r]eview”. Whether he worked on Saturday, 4th or Thursday, 2 November was not explored in evidence.

    94. Mason v Demasi [2009] NSWCA 227 at [2].

  2. In answer to a question in chief that, “Aside from those memories you have of having a sore back sometimes from work; how was your lower back more generally before the accident?” Mr Yousif said, “Generally it was fine. Didn’t really have any main issues…probably like, rare occasions”. [95] In another context, identified above, he referred to this experience as one he could remember because it involved “constant pain from something all day”. [96]

    95. Tcpt p 56(22-25).

    96. Tcpt, 19/10/21, p 86(36-38).

  3. On 12 August 2018, a Sunday, Mr Yousif felt some “tightness or cramp” in his back but “didn’t think much of it”. [97] He said that at the end of the shift “while I was wrapping the pallet, it hurt a bit more”. [98] Again he said:

    97. Tcpt, 19/10/21, p 62(40-41).

    98. Tcpt, 19/10/21, p 62(41).

“So, then I didn’t think much of it. My shift finished. I just thought it was the cold playing up in my body at the time. And, then ended up finishing the shift, going home. Didn’t think much of it”. [99]

99. Tcpt, 19/10/21, p 62(42-45).

But when he work up the next morning, “the pain was still there” [100] and “it was like a pinching pain, and there was like tingling a bit down my leg”. [101] So he took the day off work and visited a medical centre. He was referred for a CT scan. The medical centre records authored by Dr Happy on 13 August 2018 state:

100. Tcpt, 19/10/21, p 62(45).

101. Tcpt, 19/10/21, p 63(3).

“has been having back plain for last few weeks and radiated to right lower leg

now constant pain on right sided lower back

worse with movement

work in warehouse

constantly carry heavy things and has movement where he needs to bend turn body each side

no tender over spine or paraspinal area

but SLR – right leg only 30 degree

Diagnosis:

Back pain radiating to leg

Reason for visit:

Back pain radiating to leg

analgesia

CT

Physio”. [102]

102. Exhibit C, p 183.

  1. Mr Yousif was given a medical certificate, a prescription for Mobic, and a referral for a CT scan. He obtained the scan, which reported:

“L3/L4: Minimal diffuse disc bulging with very slight anterior thecal sac contact. No involvement of the merging nerve roots was seen.

L4/L5: Mild to moderate diffuse annular bulging with anterior thecal sac effacement. More pronounced right posterolateral disc bulging is noted extending into the right neural exit foramen where there is posterior displacement and effacement of the right L4 nerve root with obliteration of epineural fat. [103]

103. Exhibit C, pp 226 and 374.

  1. The next two days were Mr Yousif’s university days. He returned to work on the Thursday, where he completed an eight-hour shift with “no issues” and “felt fine”. [104] A Coles report, tendered by Mr Yousif, recorded that “last 2 shifts in final week he picked well over expectations”. [105] Friday was not a workday. He then returned to work on Saturday.

    104. Tcpt, p 63(15-16).

    105. Exhibit C, p 64.

  2. Mr Yousif said that on Saturday, 18 August 2018:

“as I lifted one of the meat boxes and I twisted to put it on my pallet, I felt, like, a cramping or tightness in the back sort of thing. And, I just thought it was the just the cold environment; I was trying to adjust”. [106]

Soon thereafter, he started wrapping the pallet and said that as:

“I started wrapping it from the top, and as I made my way down to the bottom, and I was wrapping it from the bottom, it was like an instant sharp pain hitting the lower right side as I got to the bottom and tried to wrap it. I got up, I tried to stretch it out, and from there is when I just felt this shooting pain going from pretty much my hip down to my ankle.” [107]

106. Tcpt p 63(27-30).

107. Tcpt p 63(35-41).

  1. Mr Yousif said he then “went and seen Ishak in the IT room” who suggested he stretch, then Mr Yousif, at Ishak’s directions, filled out an incident report and went home. [108]

    108. Tcpt pp 63(47)-64(2).

  2. Mr Yousif said he rested the rest of the day, visited his physiotherapist on the Sunday and saw his doctor on Monday, 20 August 2018. The medical records do not support a visit to the physiotherapist on the Sunday, or a visit to the doctor on the Monday. [109] There is a record of Mr Yousif visiting the medical centre and consulting with Dr Happy on Tuesday, 21 August 2018. [110]

    109. Cf Tcpt pp 64(5-8).

    110. Exhibit C, p 183.

  3. That part of the incident report of 18 August 2018 filled out by Mr Yousif states:

“Time of Incident

11.50

…

…

…

…

Area of incident

llop bay

…

How exactly did the incident happen

* llop bay

* wrapping my pallet

* felt pain in back, stood up, stretched, felt pain running down my whole leg”. [111]

111. Exhibit C, p 57.

  1. Most of the incident report appears to have been completed by the “Site Manager”, “Sacho Noveski”, with input from one Ishak Avdic. It relevantly reads:

“Date/time of incident

18/08/2018 1:50:00PM

Date of incident reported

18/08/2018 8:43:05PM

…

Location of incident

Chilled Room

…

Description of incident

Andrew Yousif was wrapping his pallet when felt a pain in his back. he stood up and stretched then pain escalated to a shooting pain down his leg.

…

Injury type/bodily location

Strain/Sprain, Back – Lower, Right, Shooting pain in leg after stretching

…

First aid treatment details

Performed functional assessment, limited ROM in hips and legs. I have advised further treatment/diagnosis by licensed physician.

First Aider name

Ishak Avdic.” [112]

112. Exhibit C, pp 58-59.

  1. Mr Yousif’s medical consultation with a Dr Beadle on Tuesday, 21 August 2018 was recorded as:

“EPC- 1 + 2

Chx: LBP- for 1 week, woke up Monday morning was sore, did work previous day

No phx of this.

Went back to work few days then felt pain immediately

Exercise: stopped going gym and austag for 6-7 months

Work: lifting crates all day

Scans: CT lumbar report: (R) posterocentral L4/5 disc bulge with involvement of (R) n, root

…

MGT

education: rest, heat, no lifting, carrying for short while

…” [113]

The note indicates that the history given denies both the 4 November 2017 complaint and that Mr Yousif worked without issues on Thursday, 16 August 2018.

113. Exhibit C, pp 183-184.

  1. So far as the evidence reveals, Mr Yousif commenced light duties full-time (or at least at a higher remuneration than he previously received) on about 21 August 2018 and continued until March 2019.

E. Negligence

  1. Although there are numerous complaints about the Coles system of work contained in the statement of claim, the primary aspects of negligence pressed against Coles at the hearing were in requiring Mr Yousif to lift and pack items of an excessive weight, said to be beyond 23 kilograms, at speed onto pallets, and the requirement to manually stretch wrap the pallets without the aid of a dispenser or machinery. [114]

    114. Plaintiff’s closing submissions, 26/5/22, at [85], [87] and transcript references in [32]-[57].

  2. Under s 5B of the Civil Liability Act 2002, negligence requires a foreseeable, not insignificant risk where a reasonable person would have taken precautions. [115]

    115. Civil Liability Act 2002, s 5B(1).

  3. Whether a reasonable person would have taken precautions is informed by the probability and likely seriousness of harm, the burden of taking precautions to avoid the risk and the social utility of the activity creating the risk. [116]

    116. Civil Liability Act 2002, s 5B(2).

  4. In respect of both the lifting of heavy items to put on a pallet, and the plastic wrapping, Mr Yousif relied upon a report of Ms Fiona Weigall, a Certified Professional Ergonomist and Registered Occupational Therapist.

  5. In respect of the cause of the injury, Ms Weigall relied on the plaintiff’s medical-legal report of Dr Porteous and Mr Yousif’s statement, in particular, their evidence that the onset of pain and symptoms occurred whilst bending and wrapping a pallet at work, and Dr Porteous’ opinion that Mr Yousif’s employment was a substantial contributing factor. [117] She also assumed that Mr Yousif was “fit and well, regularly attending a gym, playing tennis and running for his fitness”,[118] whereas, as noted, the medical notes of 21 August 2018 in respect of Mr Yousif record, “Exercise: stopped going gym and austag for 6-7 months”. [119]

    117. F Weigall, 27/7/20, Exhibit C, p 7 at [26]-[27].

    118. F Weigall, 27/7/20, Exhibit C, p 8 at [28].

    119. Exhibit C at p 183.

  6. The principal means Ms Weigall used to assess the risk of harm was to consider the tasks of the manual stretch wrapping and the picking and packing of items against the “Code of Practice on Hazardous Manual Tasks” (Safe Work Australia 2011, updated in 2016). [120]

    120. See F Weigall, 27/7/20, Exhibit C, pp 22-27, especially Tables 1 and 2.

(a) Mr Yousif’s account

  1. Mr Yousif gave evidence that he usually works in the “chiller, catch weight or milk” sections. [121] His duties would involve collecting a Low Level Order Picker (“LLOP”) machine that is used to transport pallets around the Distribution Centre, picking up a headset from the IT room, collecting two empty pallets, driving the LLOP to the section or relevant location, and through a headset, being given instructions as to the order and the items he needed to pick and pack onto the pallets. [122] In the milk section, the crates weighed “maybe 5 to 12 kilos each crate. Maybe even more”, [123] but also one small bottle of milk was one item. [124]

    121. Tcpt, p 38(19).

    122. Tcpt, p 38(10-20).

    123. Tcpt, p 41(37).

    124. Tcpt, p 59(20).

  2. In the “catch weight” section, the items were heavy, especially the meats, [125] which were said to weigh a maximum of “between 15 to 30 kilos”, [126] but some items were less than a kilo. [127] The pick rate or the number of items required to be packed on the pallet per hour was 155 to 165 items per hour. [128]

    125. Tcpt, p 41(45-56).

    126. Tcpt, p 42(4).

    127. Tcpt, p 59(30).

    128. Tcpt, p 42(48).

  3. In the chiller section, the weight was said to be “around 10 kilos” each box, [129] with a pick rate of “roughly around 210” . [130] If Mr Yousif did not meet the required pick rate, his work would end after four hours. He said that happened to him about once per week, [131] although there was contrary evidence in Ms Weigall’s report that “Mr Yousif says he was very good, with an average always 100% or above the pick rate”, and that he would “smash it out” to ensure he could at least get to work for six hours. [132] And, as mentioned, the Coles report[133] recorded his pick rate as well above expectations on the last two shifts before 18 August 2018. This may indicate that Mr Yousif’s speed of work may have been of his own choosing, rather than required by Coles.

    129. Tcpt, p 43(14-15).

    130. Tcpt, p 43(32).

    131. Tcpt, p 53(39-44).

    132. Exhibit C, p 13 at [60].

    133. See [51] above.

  4. Mr Yousif gave evidence that there would be breaks after four hours and after a further one and a half hours, and sometimes work continued after that. [134]

    134. Tcpt, p 54(4-27).

  5. Mr Yousif gave no detail of the section or sections he worked on 12 August 2018, [135] but said that on 18 August, apparently as he “started picking my order” at the start of his shift, in the “catch weight” section, “as I lifted one of the meat boxes and I twisted to put it on my pallet, I felt, like, a cramping or tightness in the back sort of thing.” [136] He continued:

“I finished picking the order…then I went in front of the IT room. I split both pallets up using the LLOP…I moved them, and then I started wrapping the pallet. I think I started - off - this is just from what I can recall. I started wrapping it from the top, and as I made my way down to the bottom, and I was wrapping it from the bottom, it was like an instant sharp pain hitting the lower right side as I got to the bottom and tried to wrap it. I got up, I tried to stretch it out, and from there is when I just felt this shooting pain going from pretty much my hip down to my ankle.” [137]

135. Tcpt, p 62(36-44).

136. Tcpt, p 63(24-29).

137. Tcpt, p 63(32-41).

  1. I accept Mr Yousif’s account of his work generally, that he picked items from a shelf and put them on one of two pallets on his LLOP machine and that when the order was concluded, he separated the pallets by the LLOP and wrapped each of the pallets. [138] His testimony, in general terms, finds some support in a video in evidence briefly showing a worker at the Coles Distribution Centre picking items and packing them onto a pallet, and a momentary glimpse of a pallet being wrapped. [139] But Mr Yousif’s evidence of the weight of items was general, indicating that some items might weigh as much as 30 kgs, others less than a kilogram, and with no real specificity as to the frequency of either. There was no evidence of how Mr Yousif judged or determined the weight. His evidence that he was working in the “catch weight” section, where the meats are located, conflicts with the incident report which refers to the location of the incident as the “LLOP bay” [140] and the “Chilled Room”, [141] which I infer to be what Mr Yousif calls the “chiller”, where the weight was, as noted earlier, said to be around 10kgs per item.

    138. Tcpt, p 63 (24-35).

    139. Exhibit E.

    140. Exhibit C, p 57.

    141. Exhibit C, p 58.

  2. I was not satisfied of the maximum weight Mr Yousif asserted, because the contemporaneous incident report indicated that he was working in the chiller section where the items were lighter, because of my findings about Mr Yousif’s credit, and because there was no evidence about how he determined or recalled weight of items or their frequency. The only other evidence of weight was in the Coles note, [142] which required meat weight to be read out by the packer, as the store was charged by weight not item, but Mr Yousif gave no evidence of calling out the weight.

    142. Exhibit C, p 64.

  3. In respect of the item that Mr Yousif said led to his “cramping or tightness” on 18 August 2018, there was no evidence of its nature or weight other than Mr Yousif saying that it was a meat box.

  4. On 18 August 2018 Mr Yousif had just commenced work, he said, [143] so his symptoms were not a product of a long day of heavy items and fast paced work. He had not worked at all the previous day, and two days earlier, he had completed a shift without problems, with pick rates “well over expectations”. [144]

    143. Tcpt, p 64 (23, 24, 26).

    144. Exhibit C, p 64.

  5. Accordingly, if the repetitiveness, weight, and speed of the work had caused the “cramping or tightness”, I was not satisfied that it could be attributed to what occurred on Saturday, 18 August. He had just commenced a shift, and there was nothing in the incident report, including that part comprising Mr Yousif’s account, [145] that indicates any issue with Mr Yousif picking items and packing them onto the pallet. I am not satisfied that any part of Mr Yousif’s work on 18 August 2018, prior to wrapping the pallet, contained a risk relevant to the injury. Ms Weigall’s report was dependant on Mr Yousif’s account of the weight and pick rate for her conclusion of risk. [146] There was no corroboration of these matters, and no clarity as to what amount of time was given to picking and packing, to driving the LLOP around, and to wrapping.

    145. Exhibit C, p 57.

    146. Exhibit C, pp 26-27.

(b) Negligence in wrapping

  1. Different considerations arise in relation to the task of wrapping the pallet. There was a fleeting demonstration of wrapping a pallet on the video. [147] Mr Yousif’s account finds support in the incident report. I accept that Mr Yousif used a handheld roll of wrap to secure the contents of the pallet. Ms Weigall’s report demonstrated that the task of manually stretch wrapping a pallet was the subject of risk warning by Worksafe Victoria in 2009. [148] On the basis of this material, I accept that the manual stretch wrapping of pallets without aids or machinery creates risks of musculoskeletal injuries.

    147. Exhibit E.

    148. See F Weigall, 22/7/20 at Exhibit C, pp 21-22, Figure 9, see also Figure 11, and at [91].

  2. Ms Weigall referred to manual and automatic machines to alleviate the risk of harm. She said that there was benefit to be derived from inexpensive handheld wrap dispensers, at a cost of $88.61. [149] However, her report indicates that a similar dispenser may only have marginal benefits – the use of one at Figure 12 is explained to demonstrate “awkward back posture when wrapping at lower levels”. [150] A fully automatic wrapping system is said to have “significantly decreased the risk of MSDs (musculoskeletal disorders)”. [151] It is recorded to cost about $20,000, and wraps 160 pallets per day. How many of these machines would be needed to wrap the number of pallets picked and packed at the Coles Distribution Centre was not revealed, so the cost burden could not be determined.

    149. Ibid at p 34.

    150. F Weigall, 22/7/20 at Exhibit C, pp 25, Figure 12.

    151. F Weigall, 22/7/20 at Exhibit C, pp 35, [136].

  3. An alternative between the dispenser and the automatic wrapping machine was a “[m]obile stretch wrapping machine”. [152] There was no evidence of its cost. Where its cost might fall within the other alternatives is difficult to say, although I am satisfied it bears the appearance of reducing the bending and awkward back posture involved in wrapping at, inferentially, a moderate cost. In this respect, I think that the failure to adopt any of the machines or look to lessen awkward back postures without any explanation, seems to me to involve negligence in an unsafe work system. The evidence lightly indicates that the burden of or cost of all but the fully automatic system is not substantial, and the likely seriousness of harm is evident in Ms Weigall’s report.

F. Causation

152. F Weigall, 22/7/20 at Exhibit C, pp 35, Figure 17.

(a) Activities after 18 August 2018

  1. Following the August 2018 incident, Mr Yousif returned to work on light duties, [153] involving office work. At some date prior to 5 April 2019, apparently on 16 March 2019, [154] he “experienced workplace bullying and high stress…and he has been unable to work since”. [155] During that period of office work, his remuneration increased. [156]

    153. Tcpt, pp 67(41)-68(24).

    154. Tcpt, 76(24)-(31).

    155. Report, Kim Dang, psychologist, 5/4/19; Exhibit C, p 141 at [2], see also Tcpt, pp 68(43)-(48), 76(45).

    156. See [100]-[104] herein.

(b) The expert medical reports

  1. The CT scan supports an injury occurring to the back before Saturday, 18 August 2018, indeed before 13 August 2018. There were, in evidence, no scans prior to 13 August 2018, so whether the claimed injury occurred in an incident on 12 August 2018 is unclear. This uncertainty is emphasised by Mr Yousif’s visit to his doctor about back pain on 4 November 2017 [157] and having two days off, [158] of his counsel’s reference to him having back pain “sometimes”, a reference which was accepted by Mr Yousif conditionally stating that there were not “any main issues”, “probably like, rare occasions”, [159] and Mr Yousif’s evidence which described the November 2017 event as “constant pain from something all day”. [160]

    157. Exhibit C, p 182.

    158. Tcpt, 18/10/21, p 56(5-7).

    159. Tcpt, 18/10/21, p 56(22-25).

    160. Tcpt, 19/10/21, p 86(36).

  2. The medical note of 13 August 2018 does not, in terms, support an incident of 12 August 2018, even if the reference to his work would allow an inference that his complaint was work-related. Rather, the medical note indicates a problem for about three weeks with back pain radiating to the right lower leg, which had worsened by 13 August 2018 to be “constant pain on right [side of lower back]”. [161] There was no work incident report on 12 August 2018.

    161. Exhibit C, p 183.

  3. The reference in the medical note of 13 August 2018 to an earlier genesis to the problem identified in the CT scan, and the earlier issue with his back in 2017, raises questions about the significance of both Mr Yousif’s work on 12 August and the incident on 18 August 2018. Although the medical notes must be read with caution,[162] their clear import, and the impact of the 13 August scan on the significance of the 18 August incident leaves the issue at least in a state of uncertainty. Given Mr Yousif’s lack of credit, his testimony does little to persuade me that the note of 13 August 2018 is incorrect in suggesting an earlier onset of the back problem.

    162. Mason at [2].

  4. The medical expert reports tendered by Mr Yousif rely on Mr Yousif’s instructions to attribute the injury to 18 August 2018. Although Dr Porteous does mention the earlier CT scan, he makes no attempt to explain how the injury said to arise from an incident on 18 August 2018 manifests itself objectively in a CT scan five days earlier. He incorrectly records the incident of wrapping the pallet as occurring on 13 August 2018, [163] and records no other incident, and no previous back pain. He incorrectly records that after 13 August 2018, Mr Yousif “then returned to work, doing administrative duties four hours a day, twice a week, on and off for a year”, [164] and “that work continued through until about September 2019 when he stopped work with a bullying/harassment claim and is now seeing a psychologist in relation to that”. So his report incorrectly dates the incident of wrapping the pallet, omits the earlier problems, and mistakes the extent of Mr Yousif’s work after 18 August 2018, including its duration. Whether these errors arise from Mr Yousif giving a false history or errors in the doctor’s recording is not so important. The significance is that his opinion is based on an incorrect history.

    163. Exhibit C, p 81, report, 4/5/20 at 2.3.

    164. Exhibit C, p 31.4; report, 4/5/20 at 2.4.

  5. Dr Porteous stated that Mr Yousif “stopped work with a bullying/harassment claim”, [165] and that “bullying caused him to cease work”. [166] He does not attribute the ceasing of work to the back injury, although, perhaps inconsistently, he finds that there is no “suitable employment…that accommodates” his restrictions from the back injury. [167]

    165. Exhibit C, p 81.

    166. Exhibit C, p 83.

    167. Exhibit C, p 85.

  6. Dr Ben Teoh, Mr Yousif’s psychiatrist, records Mr Yousif’s history thus:

“He said that when he tried to return to work, his superior was not supportive and he was bullied and unfairly treated. He said that the staff had made derogatory comments”. [168]

168. Exhibit C, p 89.

  1. Dr Teoh attributed Mr Yousif’s mental condition to both his chronic pain and the allegation of lack of employer support, [169] but does not conclude that this causes him to be unable to work. [170]

    169. Exhibit C, p 91.2.

    170. Exhibit C, p 91.

  2. In his report of 31 July 2020, Dr Teoh concluded that Mr Yousif’s “presentation is consistent with a diagnosis of a Chronic Adjustment Disorder with Depressed Mood”. [171] Dr Teoh incorrectly assumed that Mr Yousif was diagnosed with a lumbar disc prolapse after the incident on 18 August. [172] He also assumed that Mr Yousif “tried to return to work”, [173] whereas Mr Yousif did return for about 30 weeks. Dr Teoh also assumes Mr Yousif “did not finish his studies” of engineering at university, [174] whereas in July 2020, his studies were continuing and progressing well. He concluded:

“On the balance of probabilities, [Mr Yousif’s] condition is caused by the injury sustained at work on 18 August, 2018, which has resulted in chronic pain and physical disability, and his allegation of harassment and lack of support from his employer”. [175]

171. Exhibit C, p 90 at 5.

172. Exhibit C, p 89.

173. Exhibit C, p 89.4.

174. Exhibit C, p 89.8.

175. Exhibit C, p 91.2.

  1. I am disinclined to give much weight to Dr Teoh because of the errors in the history he records. As indicated, he seems not to have understood that Mr Yousif worked for seven months post-accident and he incorrectly says of Mr Yousif, “He studied engineering at university for three years. He did not finish his studies”. Although his interview with Mr Yousif was not done in person but by audio-visual link, that feature should not be overstated. Neither Dr Teoh nor Dr Porteous convincingly dealt with the role of the physical injuries in the asserted ongoing incapacity to work, in circumstances where there was seven months’ work post-accident, and the psychiatric condition was identified as the cause of termination of employment.

  2. Contrary to Mr Yousif’s submissions, the diagnosed Adjustment Disorder condition appears not to have adversely affected his studies. [176]

    176. Cf Plaintiff’s schedule of damages, 14/10/21 (“PSD”) at [5], see above at [39].

  3. Mr Yousif says that before the injury he use to weight 80 to 82 kilos, but now he weighs 95 kilos. [177] His mother says he has gained weight and is less active. [178] On 21 January 2019, some 5 months after the incident and less than 2 months before the harassment caused him to cease work, Mr Yousif is recorded as weighing 84 kgs, perhaps 2 kgs more than his estimate of his weight, at some unidentified previous date before the injury. [179] The evidence of significant weight gain occurring immediately after 18 August is unpersuasive.

    177. Tcpt, pp 66(42)-67(5).

    178. Tcpt, p 180(31).

    179. Tcpt, p 66(43).

  4. Mr Yousif’s occupational therapist, Wendy Bevan, reports that, “Mr Yousif reported that he was working as a Picker & Packer…He stated that he had to give this up after the accident due to ongoing symptomatology including pain”. [180] The report makes no mention of his subsequent office work or the bullying and harassment claim.

    180. Exhibit C, p 112 at [7.3.1].

  5. The defendant’s reports are also of little assistance. Dr David Maxwell appears not to have been provided with any other reports and seems unaware of the spinal injury. [181] Dr Doron Samuell does not analyse the impact of the bullying on Mr Yousif’s injuries or his psychiatric condition, if it exists. [182]

    181. Exhibit 2, pp 40-44.

    182. Exhibit 2, pp 1-28.

  6. Mr Yousif’s incapacity to do office work cannot reasonably be attributed to his back injury since he completed office work without incident for seven months after the injury. Rather, if it exists, this incapacity is due to the independent cause of post-traumatic stress disorder (“PTSD”) from bullying. That he came to be doing office work by reason of the back injury might be sufficient to satisfy “factual causation”, it is not enough to satisfy the second limb under s 5D(1) in respect of a condition caused by bullying in the office. [183]

    183. Cf Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [24]-[27].

  7. The “scope of liability” limb raises the question of whether it is appropriate for negligent conduct causing a back injury to extend to damages from office bullying. That conduct has no real connection with the negligence in the picking, packing and wrapping tasks. The bullying could just as easily have occurred in the warehouse as in the office. I do not accept that it is appropriate for damages to extend to the consequences of bullying. Bullying might not be rare, but it is not to be expected from office work.

  8. I do not accept that the Adjustment Disorder, depression or anxiety suffered by Mr Yousif is attributable to the spinal injury.

  9. I accept Mr Yousif experienced back related symptoms when wrapping a pallet early in his shift on 18 August 2018, not so much because of his testimony, given my adverse credit findings, or because of the medical notes, which do not mention the shrink wrapping task, but because of the relatively contemporaneous incident report which repeatedly referred to back and right leg pain occurring on 18 August when he was “wrapping his pallet”. [184] The time Mr Yousif commenced his shift was not otherwise established, and I accept his evidence that the incident occurred soon after commencing, a statement that appears to be against interest.

    184. See Exhibit C, pp 57-58.

  10. Mr Yousif had, prior to 13 August 2018, already suffered the injury that again caused him pain on 18 August. I am not persuaded that what occurred on 18 August was anything other than a temporary, brief manifestation of an injury that had already occurred, before 13 August 2018. Since the injury cannot be attributed to any specific time, or even to any event at work, I am not satisfied that the negligence in the system of manually wrapping without dispensers or other assistance to relieve bending and twisting was a necessary condition of the occurrence of the harm of the spinal injury. [185] The injury, occurring prior to 13 August 2018, may have occurred at work as a result of other unspecified non-negligent tasks, or not at work at all.

    185. See Civil Liability Act 2002, s 5D; see also reference to the expert medical reports at [79]-[92] herein.

  11. The incident on 18 August 2018 was, as stated, only a temporary manifestation of a pre-existing spinal injury, and although Mr Yousif changed to lighter duties thereafter, there was no evidence of him being unable to work at all for any period after 18 August 2018. Mr Yousif gave no specific evidence of when he returned to work to “suitable duties”, [186] saying of the injury:

“stayed pretty much the same…Yeah, it was pretty much the same. It didn’t really progress. Just the same sharp pain in the back, and it was just running down my leg at the time”. [187]

As I was given no evidence of the date he returned to work, I would not infer it was more than a few days after 18 August 2018. That conclusion is supported by his 2019 earnings.

186. Tcpt, p 67(41).

187. Tcpt, p 64(31-35).

G. Conclusion

  1. I have found negligence in the system of work with the manual wrapping of pallets without assistance, but not otherwise. I am not satisfied that this negligence, or any other component (negligent or otherwise) of Mr Yousif’s work, materially contributed to the spinal injury he suffered, which occurred before, perhaps weeks or more before, 13 August 2018. While he suffered briefly from the incident on 18 August, that temporary manifestation of the pre-existing injury could not be sufficient to satisfy the threshold for any damages for non-economic loss,[188] and his other claims cannot be attributed to it: he did not establish any lost earnings in the period after the incident; he does not satisfy the six-months threshold for gratuitous care; and the out of pocket medical expenses due to the manifestation of the pre-existing injury did not commence until three days after the incident, leaving me unsatisfied that any expenses were due to what had occurred on 18 August rather than for expenses in respect of an injury previously suffered.

    188. Civil Liability Act 2002, s 16(1).

H. Quantum

  1. Lest I be incorrect in finding against Mr Yousif on liability, I will make some findings on damages. The comments and calculations are premised on Mr Yousif suffering the spinal injury at work on 12 or 18 August 2018 due to the negligent wrapping procedure, contrary to what I have found.

(a) Past economic loss

  1. The plaintiff claims $159,007.50 for past economic loss. [189] He asserts he was employed on a casual basis as a picker/packer, working on average 26.5 hours per week and earning around $1,300.00 gross per week. [190] He claims he has earned no more than $30,000 since the injury. [191] He gave evidence of this, [192] including that he commenced duties at Coles in early 2017. [193]

    189. PSD at [16]-[17].

    190. PSD at [17].

    191. PSD at [21].

    192. Tcpt, pp 375(41)-379(18).

    193. Tcpt, p 35(35-45).

  2. Mr Yousif’s tax returns show the following matters:

2015 [194]

2016 [195]

2017 [196]

2018 [197]

2019 [198]

Main salary and wage occupation

Factory worker – packer - other

Road Traffic Controller

Road Traffic Controller

Road Traffic Controller

Road Traffic Controller

Payer’s ABN

xx883

xx883

xx713

xx713

xx713

Gross payment

16,944

19,838

18,101

65,275

229

Payer’s ABN

xx296

xx911

xx911 [199]

xx911

xx117

Gross payment

4,156

3,235

18,227

-

54,758

Total Gross payment

21,100

23,073

37,200

65,275

54,987

194. Exhibit C, p 500.

195. Exhibit C, p 498.

196. Exhibit C, p 496.

197. Exhibit C, p 494.

198. Exhibit C, p 492.

199. Also $872 earned from Payer ABN xx233.

  1. Mr Yousif’s claim that he earned $1,300 per week gross prior to the incident on 18 August 2018 fairly closely correlates with his 2018 tax return, which shows earnings of $65,275 for the year, or about $1,252 per week. As $14,262 was withheld in tax, [200] his net income was $51,013, or about $980 per week, a little less than the $1,050 per week he claimed.

    200. Exhibit C, p 494.

  2. Mr Yousif also claimed he earned $30,000 net after the accident and that he ceased work on 16 March 2019 after the bullying incident. [201] As there are about 30 weeks from 18 August 2018 to 16 March 2019, his net wage of $1,000 per week shows no reduction in earnings. Further, his gross payments of $54,987 [202] for the 2019 financial year show gross earnings for 36.6 weeks at about $1,500 per week, or (with tax of $11,704 withheld) a net amount of $43,283, being $1,182 per week. This is a significant increase in earnings. He may have worked longer hours. Mr Yousif gave no explanation of an increase in earnings, as he asserted a reduction.

    201. Tcpt, p 76(47).

    202. Exhibit C, p 492.

  3. In these circumstances, I would allow no past loss of income during the period Mr Yousif was employed in office work.

  4. Mr Yousif did have a loss of earnings after he ceased office work, but I was not satisfied that the back injury contributed to this loss of employment. It was caused by the psychiatric condition that resulted from the bullying and harassment, which was not asserted to be due to Coles’ negligence independent of the back injury. As no absence from office work was attributable to the back injury, I would not award any past economic loss.

(b) Future economic loss

  1. The plaintiff claims future economic loss in the amount of $350,000.00. [203]

    203. Plaintiff’s schedule of damages, 14/10/21.

  2. Mr Yousif was intending to cease his casual work and engage in his engineering profession when qualified. [204] That is anticipated to have occurred by now or shortly. In the absence of evidence to the contrary, I would not conclude that work as an engineer would be less remunerative than as a picker and packer. In the result, the evidence does not establish an ongoing loss of income. If it did, it seems to be attributable to the PTSD from the bullying rather than the back injury, as I have found in respect of lost income to date.

    204. Tcpt, p 127(4)-(27).

  3. But pre-injury and post-injury earnings are instructive not determinative. [205] Mr Yousif had not yet completed his engineering degree at the time he concluded his evidence, although he was expected to finish this year. He submitted that he would have completed his studies earlier but for his injury,[206] but the evidence does not support this, as indicated earlier. [207] On the contrary, the evidence supports a conclusion that he finished or would finish his engineering degree quicker because he ceased being a picker and packer, a matter that may be a credit against economic loss.

    205. Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [24].

    206. PSB at [25].

    207. See [38]-[40] herein.

  1. Mr Yousif has had a diminution in capacity, including a restriction against doing picking and packing, and other demanding physical work, so I would allow a buffer to cover the restrictions on these forms of work, which although not part of his anticipated future, is a lost capacity that, in the course of his life, may have an adverse economic effect. I would allow a sum of $20,000.

(c) Non-economic loss

  1. The Plaintiff makes a claim for non-economic loss in the amount of 33% of a most extreme case, or $226,500.00. [208]

    208. Plaintiff’s schedule of damages, 14/10/21.

  2. The L4/5 annular disc bulge with right neural exit foramen impingement of the right L4 nerve root, causes Mr Yousif ongoing pain and pins and needles. The extent of this disability is difficult to measure because of the limited acceptance of Mr Yousif’s testimony, and the impact of his unrelated PTSD.

  3. Mr Yousif’s condition did not hamper his earnings in the period after the incident or impact significantly on his employment, the loss of which resulted from the psychiatric condition. Mr Yousif has not undertaken any operations or injections. But he does get regular prescriptions for the pain.

  4. In these circumstances, I would assess Mr Yousif’s ongoing back problems at 20% of a most extreme case, which indicates a sum of $24,000, the amount submitted by the defendant.

(d) Past out of pocket expenses

  1. Mr Yousif claims $70,000 for past out of pocket expenses for all “treatment and medication paid by Medicare/HIC, the Workers Compensation Insurer and himself to date [and] travel expenses”. [209] There is evidence that the Workers Compensation Insurer has spent almost $67,000 on medical expenses. [210] The difficulty in assessing these expenses is that I do not conclude that the psychological injury, and this treatment in respect of it, is due to the back injury. In the result, some of the expenses are not damage for the negligence claimed.

    209. PSD at [12].

    210. Exhibit D.

  2. Mr Yousif does not attempt to calculate or evidence those medical expenses directed to his back injury. The psychological injury was impactful in causing Mr Yousif to cease work, and in the absence of evidence of the particular expenses, it might be appropriate to attribute a greater amount to it.

  3. However, Mr Yousif’s medical expenses for the seven months after the 18 August incident and before the bullying episode amounted to $18,166.14. [211] This is not insubstantial. They include visits to specialists on average about every three days, which continued for years. Whilst I retain a concern about the utility of this high number of visits, no issue was taken about this by the defendant, and so I would assess the sum of $50,000 for past out of pocket expenses.

    211. This figure is derived from a calculation of the amounts in Exhibit D from 18 August 2018 to 15 March 219 inclusive.

(e) Future out of pocket expenses

  1. Mr Yousif claimed future medical expenses of almost $30,000, about $28,500 apart from psychological counselling. These expenses include regular attendances on general practitioners and physiotherapists, as well as analgesic medication, a consultation with a pain specialist and occupational therapist, and attendance at a chronic pain program. These matters are largely dependent on Mr Yousif’s account of his needs, but his past expenditures provide support for this claim.

  2. In the circumstances, I would assess Mr Yousif a sum of $28,500 to cover future medical treatment related to his back.

(f) Care and assistance

  1. Mr Yousif withdrew a claim for past care and assistance, [212] but seeks $396,264 for the future on the basis of eight hours per week. [213] He claimed only one and a half hours in submissions. [214]

    212. Tcpt, p 325(5-15).

    213. PSD at [37].

    214. Tcpt, p 380(12).

  2. The injury did not lead to any non-gratuitous care in the past, and I would be cautious in including any future damages for this item insofar as it arose from the spinal injury.

  3. Section 15(2) of the Civil Liability Act provides:

“15   Damages for gratuitous attendant care services: general

…

(2)  No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that—

(a)  there is (or was) a reasonable need for the services to be provided, and

(b)  the need has arisen (or arose) solely because of the injury to which the damages relate, and

(c)  the services would not be (or would not have been) provided to the claimant but for the injury.”

  1. Mr Yousif earned more income from his employment after the injury. Although he was not involved in the physically demanding at the Coles Distribution Centre, his employment is not consistent with a need for care nor that any continuing need is due to the back injury. Mr Yousif has accepted the extra help given by his mother and sister, but I am not satisfied that it was from a need that arose from his back injury.

  2. Mr Yousif does not currently have a household property that requires him to do heavy outside work, but he may do so in the future. That is the only type of care where he would require assistance in respect of his back injury. Mr Yousif does not give evidence of his attempts and abilities to do domestic tasks, only that he does not do them. [215] The circumstance that his family collect his dirty clothes off the floor [216] is not reflective of a need established by the injury, and, as stated, his ability to undertake a significant work load for the seven months following the incident speaks against a significant impact on his ability to self-care.

    215. Tcpt, p 71(30)-(32).

    216. Tcpt, pp 72(5), 184(27), 203(36).

  3. I would allow a sum of $10,000 against the future possibility of needing assistance with heavy external tasks.

(g) Summary

  1. Accordingly, in the event that liability were established, I would award damages in the following amounts:

Head of damage

($)

Past economic loss

Nil

Future economic loss

20,000

Non-economic loss

24,000

Past out of pocket expenses

50,000

Future out of pocket expenses

28,500

Care and assistance

10,000

Total

132,500

I. Orders

  1. The Court orders:

  1. The proceedings be dismissed.

  2. The plaintiff to pay the defendant’s costs.

**********

Endnotes

Amendments

31 October 2022 - included endnotes

Decision last updated: 31 October 2022

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Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13