Zarifi v Victorian WorkCover Authority
[2023] VCC 1002
•12 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-05122
| GHULAM ZARIFI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7 & 8 June 2023 | |
DATE OF JUDGMENT: | 12 July 2023 | |
CASE MAY BE CITED AS: | Zarifi v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1002 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Causation - Serious injury – sub-paragraphs (a) and (c) – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Larner v George Weston Foods [2014] VSCA 62; Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171; Alcoa of Australia v McKenna [2003] VSCA 182
Judgment: Causation is proven.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Middleton KC with Ms C Alden | Zaparas Lawyers |
| For the Defendant | Mr P Jens KC with | Minter Ellison |
HER HONOUR:
Introduction
1Between 6 June 2018 and 29 June 2018, the plaintiff, Mr Ghulam Zarifi, was working at SW Repairs Pty Ltd. Whilst working there, on 29 June 2018 he claims he was injured when a metal bin he was cleaning fell from a forklift onto his feet. He has not worked since.
2The case ran as a cause to determine the issue of causation.[1]
[1] As per the orders made by Judge Fraatz dated 19 October 2022.
3The causation dispute is part of a serious injury application pursuant to s335(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff. He seeks leave of the Court to commence common law proceedings pursuant to sub-paragraphs (a) and (c) of the definition of “serious injury” in s325(1) of the Act for pain and suffering and economic loss. He claims under subparagraph (a) he has suffered a serious injury being permanent serious impairment or loss of function of his left foot and right foot, including scarring and complex regional pain syndrome, and under subparagraph (c) for permanent severe mental or permanent severe behavioural disturbance or disorder including but not limited to development of anxiety and or depression.
4The serious nature of the plaintiff’s injuries on both heads was not in dispute.[2]
[2] Transcript (“T”) 200
5The defendant denied there was an injury at work.
6The issues in dispute were:
a) The plaintiff did not report the injury or incident at work at the time he alleges it occurred.
b) It was in dispute whether after he was injured the plaintiff telephoned his housemate Sifat Ullah, who was a truck driver at the same workplace, to pass on a message to the plaintiff’s supervisor Jose Alvarez.
c) The plaintiff’s duties with the defendant were in dispute as he stated he was employed to clean plastic and metal bins and to drive a forklift.
d) The plaintiff contended he injured himself at approximately before 7.00am on 29 June 2018 and drove home at 7.30am. The defendant’s case was that he did not go home, that he remained at work, uninjured, and spent the rest of the day assisting Misha conducting a stocktake.
e) The defendant contends the plaintiff worked on 2 July 2018 and 3 July 2018 as per the company time sheets.
f) Further, when the plaintiff attended hospital at approximately 6pm on 29 June 2018, he did not say he had injured his feet at work but that the injury occurred at home when a cupboard fell on his bare feet.
Background
7The plaintiff is thirty-nine years old. He was born in Afghanistan and attended school until he was 12 or 13. He left Afghanistan and went to Pakistan, and then Indonesia where he spent approximately two and a half years in detention. He arrived in Australia in April 2016 as a refugee.
8He is single with no dependents.
9His first job in Australia was at SKM Recycling where he worked for about three months doing sorting as well as driving a forklift.[3] He stated he was sacked from this job as he was not needed.[4] He also volunteered for a month doing security work to get work experience.
[3] Plaintiff’s Court Book (“PCB”) 13
[4] T 22
Evidence
10The plaintiff called three witnesses and the defendant called two witnesses. The plaintiff gave evidence with a Pashto interpreter and called, Sifat Ullah and Asad Jalil. Mr Jalil gave evidence via a video link to Pakistan, where he now lives. The defendant called Jose Alvarez and Jessica Barilla.
Workplace hours and duties
11It was not in dispute the plaintiff was employed with the defendant on a casual basis and commenced work on 6 June 2018.
12His duties were in dispute. In his affidavit dated 15 July 2021 he described his duties including cleaning plastic bins and metal bins of various sizes. He stated he worked as a casual and his hours varied.[5] He also worked as a truck jockey delivering bins. Alex, one of the supervisors, would text him to attend the workplace at hours such as 1 am, 1.30 am, 2.30 am, 4 am or 5 am.[6] When he worked on Saturdays he would go with the truck, assisting the driver collecting or dropping off bins.[7] In terms of his hours, in re-examination the plaintiff stated “I was starting at 7 o’clock, sometimes I was going with a truck driver, so I was starting at 2 o’clock or 3 o’clock in the morning.”[8]
[5] PCB 14
[6] Exhibit P15
[7] T 22
[8] T 66
13In re-examination, the plaintiff stated Mr Alvarez, his supervisor gave him instructions as to how to wash the metal bins.[9] In his three weeks working at the defendant, he estimated; “I was washing every day, one, two or three.”[10] He estimated he drove a forklift whilst working at the defendant’s every day and that he knew to put a metal bin on a forklift’s tines to clean it because “I was given instruction”[11] by Jose.
[9] T 65
[10] T 66
[11] T 66
14The defendant called Jose Alvarez, who was the workshop supervisor at the defendant, where he had worked for 17 years.[12]
[12] T 110
15Mr Alvarez made a statement dated 13 December 2018 which was affirmed and exhibited to his affidavit dated 20 September 2022. He stated the plaintiff was employed with the defendant from 6 June 2018 to 25 June 2018 as a cleaner. He stated the plaintiff was a full time casual employee working from 7.30am to 4.00pm from Monday to Friday, and sometimes he would start work earlier such as at 6.00am.[13] He trained the plaintiff when he commenced which took about 30 minutes. His duties “predominantly consisted of washing plastic bins and other duties as required such as being a jockey with a driver and in late June he performed stock take.”[14] He specified the plaintiff “was required to wash plastic wheelie bins only.” He stated the plaintiff “was not trained to clean metal bins because he was never required to clean them. He was never asked to drive a forklift as I did not know he even had a licence to drive one.”[15]
[13] Defendant’s Court Book (“DCB”) 8
[14] DCB 9
[15] DCB 9
16In his second affidavit dated 8 April 2023, Mr Alvarez stated during winter, bin cleaning commenced at 7.00am and could not be completed before that time as it was still quite dark in the yard.[16] He also stated that when the plaintiff started at 6.00am it was when he was required to do bin jockey work, “this was quite rare however…”.[17] Further, he stated his understanding was the plaintiff did not have a forklift licence “and therefore I had never instructed him to operate a forklift.[18] Further, the keys of the forklifts were kept in a secure, locked box in the office of the premises which also contained the keys for the bin trucks.”[19] In evidence, Mr Alvarez could not recall instructing the plaintiff as to how to use a forklift and did not recall him using a forklift.[20]
[16] DCB 132
[17] DCB 133
[18] DCB 133
[19] DCB 133
[20] T 118
17In evidence, Mr Alvarez further stated the forklift keys were kept in a secure box in the office.[21] He then agreed the keys were on hooks on a frame on the wall in the office which the plaintiff could have accessed if the office was open.[22] He stated a forklift was required to clean a metal bin because of the weight.
[21] T 118
[22] T 119
18Mr Alvarez agreed he showed the plaintiff how to wash the plastic bins but not the metal bins as “We only needed - back then we only needed a bin washer for the plastic bins.”[23]
[23] T 114
19In cross-examination, Mr Alvarez stated when he hired the plaintiff, who was referred by Mr Ullah, he did not ask him any questions about where he had worked previously. He explained this was because they were desperate and short of staff, that is “short of people washing bins”.[24] He recalled an induction with the plaintiff, but couldn’t recall who was ‘at the back’, meaning the people employed to wash the bins.[25] Mr Alvarez would provide instructions to him in the morning, “or if they couldn’t find me, most of them already knew exactly what to do at the back.”[26]
[24] T 121
[25] T 123
[26] T 123
20Mr Alvarez confirmed that aside from giving instructions, he might not see the plaintiff for the rest of the day.[27] The metal bins weigh between 120 kilograms up to three tonnes and they all need to be manipulated by a forklift. [28]
[27] T 138
[28] T 139-140
21When the plaintiff did not return to work, Mr Alvarez did not call him as he was too busy.[29] Although he assessed the plaintiff’s attendance, attitude and performance as ‘very good’,[30] he also said it was not unusual for staff not to turn up.
[29] T 149
[30] DCB 8
22In cross-examination, Mr Alvarez was asked why he wouldn’t, when he engaged a new worker, teach them how to wash plastic and metal bins and he stated: “Well, I only need a plastic bins washer back then”.[31]
[31] T 151
23When cross-examined about the plaintiff’s forklift licence, Mr Alvarez stated he had no knowledge the plaintiff had a forklift licence.[32] He agreed in an eight-hour day he might see the plaintiff for five minutes, “if”.[33] He denied giving the plaintiff instructions as to how to put a metal bin on the tines of a forklift to wash it.[34] Mr Alvarez started at 5.00am each morning.[35] He stated he never went out with a truck to deliver bins when short staffed, although he couldn’t remember if he went with Sifat Ullah and loaded a truck with small bins.[36]
[32] T 155
[33] T 157
[34] T 161
[35] T 159
[36] T 160
24The defendant’s general manager, Ms Jessica Barilla gave evidence.
25Ms Barilla confirmed the plaintiff was employed to clean plastic bins only as “Jose would always employ for someone for plastic and someone for metal”.[37]
[37] T 188
26
Ms Barilla was not aware of other work the plaintiff did aside from cleaning bins. When asked if she was aware he was a truck jockey she stated,
“From time to time, I don’t know.”[38]
[38] T 197
Events on 29 June 2018
27It was not in dispute that the plaintiff worked on 29 June 2018. The plaintiff claims he was cleaning a metal bin when the bin partly slipped off the tines of a forklift and fell onto both his feet.[39]
[39] PCB 14
28
In his evidence the plaintiff described starting work at 6.00am.[40] He assisted his supervisor, Jose, to load a truck with residential bins. When the truck left, he was alone at the site. He picked up a bin using a forklift. He was standing in front of the metal bin using a metal bar to clean the bin. The bin was 500 mm above the ground and was balancing by its own weight on the forklift tines. He stated “the bin slipped forward from the forklift and fell on both my feet.”[41] In cross-examination, he stated on 29 June 2018 he started work earlier at about 6 am and there was no one else there.[42] He agreed the metal bins require a forklift to manoeuvre them because they are too heavy for a person to manoeuvre, unlike the plastic bins which can be moved like a home rubbish bin on wheels.[43] He stated
“Jose told me, ‘tomorrow there are trucks coming at 6 o’clock, you have to come and load the truck.”[44] He then stated his supervisor Jose was present and they loaded a truck with plastic bins, “when they left I was there by myself.”[45] He explained Jose went with driver Sifat Ullah in the truck. He stated the office building was open and he “clocked on”[46] but he did not clock out.
[40] T 23
[41] Exhibit P-6
[42] T 23
[43] T 26
[44] T 29
[45] T 28
[46] T 30
29He left work by about 7.30am and drove home.
30His evidence was that when he arrived the gates to the premises were open and it was dark.[47] He agreed the keys for the machinery were kept in the office building. He stated after the bin fell on his feet he took the bin and put it back.[48] He put the bin 10 metres from where he was washing the bin as it still needed washing. He left the forklift there and walked off, without telling anyone what had happened and drove home.[49] He later stated, “I put the rubbish bin on the back, and I parked the forklift in the bay.”[50] He agreed he panicked about losing his job.[51]
[47] T 27
[48] T 33
[49] T 33-34
[50] T 47
[51] T 47-48
31Mr Alvarez agreed he probably asked the plaintiff to start work at 6.00am on 29 June 2018.[52] He couldn’t recall but said “something must have came up that I had to get him in early”. He disagreed the plaintiff would have come in to load trucks with bins at 6.00am as “The trucks had already gone out by then”.[53]
[52] T 124
[53] T 124
32Mr Alvarez agreed Exhibit 15 was a series of text messages between Alex, the truck supervisor, and the plaintiff requesting him to attend work as a truck jockey on various days and times, including at 1.00am. The plaintiff stated if he arrived to work at 1.00am he would clock on and wait for the driver at the front of the truck or the front of the office.[54] He stated at 1.00am there are about 30 drivers who come in and out so the door is opening all the time.[55]
[54] T 127-128
[55] T 128
Evidence about what the plaintiff subsequently said and did
33In his first affidavit dated 15 July 2021 the plaintiff stated, “I was in a lot of pain. I went home after the incident. Later that day my friend drove me to the Sunshine Hospital.”[56] In his second affidavit dated 6 October 2022 and his third affidavit dated 25 May 2023, there is no mention of the circumstances of the injury. In a statement dated 25 January 2019 at paragraph 27 he states: “Immediately following the accident I called my supervisor (Jose) and told him that I was unwell. I said I would come back in on Monday (2 July 2018). My supervisor said that is fine, go home. I immediately went home”.[57]
[56] PCB 14
[57] Exhibit P 6
34In evidence, after the incident the plaintiff stated, “I called Sifat, I told him, ‘I was injured and I’m going home.”[58] He explained Sifat Ullah was a truck driver for the defendant, and the manager Jose was with him. It was put to the plaintiff that Mr Ullah found out the plaintiff was injured when he came home from work as Mr Ullah stated in his affidavit “I know this because one day when I got home from work Ghulum was home and his feet were very swollen.”[59] The plaintiff stated, “No, I told him that I got injured, when he came home he saw me at home that I was injured.”[60]
[58] T 34
[59] T 36
[60]T 36
35In cross-examination the plaintiff stated he said to Mr Ullah, “I got injured, I’m going home, tell my boss I’m going home”.[61] And when asked if he told him to tell your boss that you had been injured he said, “I told him, ‘Don’t tell him I got injured’”.[62] He then clarified, “I told my friend I got injured, tell my boss that I have some tummy problem and I’m going home.”[63]
[61] T 45
[62] T 45
[63] T 45
36Further, earlier in cross-examination, the plaintiff stated, “I called him, I said, ‘Look, I got injured,” and he told me, ‘Just go and report it,’ and I said, ‘No, it’s not that bad, I will go home.’ And then I left, I went home.”[64]
[64] T 36
37Later that night his friend Mr Ullah drove him to Sunshine hospital. When asked why he did not tell the truth at the hospital about how the injury occurred he stated, “I don’t remember but I was worried about losing my job and I didn’t know a lot of things.”[65] When asked why he did not tell the truth he stated, “I got scared I might lose my job.”[66] When asked, ‘why not say a bin fell on my feet?’, he answered, “Because I couldn’t speak English, I didn’t want to lose my job, I didn’t know about Workcover, I didn’t know anything at that time,”[67] and when asked again he stated, “I thought I don’t want to lose my job, I will rest for two or three days and I will be okay, I will go back to work.”[68] When asked again he replied, “I told them I got injured at home because I don’t want to lose my job and I just want to return back to work.”[69]
[65] T 37
[66] T 37
[67] T 37
[68] T 37-38
[69] T 38
38In cross-examination, the plaintiff agreed he told Dr Keith he was in fear of losing his job and did not want to get into trouble for what happened.[70] He also stated he thought he would be okay “and a second reason that there was no-one else there, I was just by myself and that was the reason why I left.”[71]
[70] T 46
[71] T 47
39Mr Sifat Ullah was the plaintiff’s friend, and they shared a house together in Laverton. He had been working at the defendant’s for about a year, driving a truck delivering and picking up bins, and “I made him, like, to get a job there as a forklift operator…His job was driving forklift and cleaning bins.”[72]
[72] T 70
40Mr Ullah swore an affidavit dated 25 May 2023 and stated:
“I know that Ghulum hurt his feet at work. I know this because one day when I got home from work, Ghulam was home and his feet were very swollen. He told me that he injured them at work. Asad and I spent some time telling him he needed to see a doctor.”[73]
[73] PCB 153
41Mr Ullah drove the plaintiff to hospital. At the hospital, Mr Ullah stated the plaintiff told medical staff he hurt his feet at home, by dropping a cupboard on himself. Mr Ullah stated, “Afterwards, I asked Ghulam why he said that he injured himself at home. He said because if he blamed his employer, the employer wouldn’t let him work there anymore and he didn’t want to lose his job. I reassured him that he should be honest when speaking with doctors.”[74]
[74] PCB 153-154
42During cross-examination, Mr Ullah agreed the first he learnt of the plaintiff being injured that day was when he got home from work. He stated, “Yes, like, at that stage, like, when I saw him, so it was an emergency situation. So at that stage I was trying to take him as soon as possible to the hospital.”[75] He took him in his car to emergency department at Sunshine Hospital. He stated because of the urgency of the situation it was “Later on he explained that what happened to him.”[76]
[75] T 73
[76] T 73
43When Mr Ullah first saw him he described his feet as “very swollen” and that “At that stage I didn’t ask too many questions from him…So like, the only thing in my mind was to bring him to the emergency for treatment.”[77] He confirmed his first knowledge of the plaintiff having injured feet was when he arrived home from work. “Yes, because when I finished my shift I arrived home and that time I saw him”.[78] At the hospital he heard the plaintiff tell the nurse “I put a cupboard on my feet”.[79] He did not remember the plaintiff saying he had bare feet. Mr Ullah stated “…Later on he explained how it happened in the Speedie Waste Company and he was cleaning a bin and the bin slipped over on his feet and that’s why he had damage like that.”[80]
[77] T 74
[78] T 76
[79] T 75
[80] T 77
44In re-examination, he stated:
“…when he told me the whole story, like, I understand that he injured at work because later on he explained each and every thing. But with the doctor in the hospital he told a different story but after that he actually told us – like, we asked the question from Ghulam, most of our friends, why he didn’t do it like this? His answer was that he was actually – he was afraid to tell these things, he might lose his job. So it means that we understand that he injured in the workplace, or when he told everything after that.”[81]
[81] T 79
45Mr Asad Jalil swore an affidavit dated 10 October 2022. In 2018 he lived with the plaintiff in Laverton. In his affidavit he stated on 29 June 2018,[82] he came home from work to find the plaintiff sitting on his bed talking to Mr Ullah. The plaintiff was visibly in pain and said he had an accident at work earlier in the day and thought he had broken his feet. He said a bin fell on his feet. Mr Jalil and Mr Ullah both said he should go to hospital. Mr Jalil described the plaintiff saying he didn’t want to as he didn’t want his boss to find out that a bin fell on him and he got injured as he would get fired. As the plaintiff could not walk properly, Mr Jalil described he and Mr Ullah grabbed him by the shoulders and dragged him to Mr Ullah’s car who drove him to hospital.[83]
[82] PCB 25. This date was amended in his second affidavit from 2012 to 2018.
[83] PCB 22
46Mr Jalil gave evidence via a video link from Pakistan. He lived with the plaintiff in Laverton for two or three years. At the time, he was working as a security guard with MS Security at SKM Recycling in Laverton.[84] Mr Jalil was working five to six days a week and he was on night shift. He worked from 5pm to 5am and would sleep until 2.30pm, 3pm or 4pm. He woke up from sleeping after night shift and Mr Ullah and the plaintiff were talking. The plaintiff was lying in bed in his own room “with the legs.”[85] He recalled seeing the plaintiff “somewhere between 2pm or 2.30pm somewhere.”[86] He stated, “…2.30pm I wake up and then I saw Ali and Sifat were talking and when I came out from my room I saw him laying in his own room, with the sore feet. I asked them what happened.”[87] He continued, “they were talking and Ali was explaining what happened or something like that, and then I saw him and Sifat asked him, ‘We will take you to the hospital,’ so I help him to the car and he was just crawling, you know?”[88]
[84] T 84
[85] T 90
[86] T 91
[87] T 92
[88] T 93
47Mr Jalil described the plaintiff and Mr Ullah as working in the same place, with Mr Ullah driving a truck and the plaintiff driving the forklift.[89]
[89] T 93
48Mr Jalil stated he was aware from Mr Ullah that the plaintiff stated at the hospital he injured himself at home. He stated, “We both said to him, yes, we both said to him yes, like why are you not saying that, because he said, ‘I was quite a long time jobless and I’m scared they will kick me out’ because he was not at that time – maybe not sure that he could correct both his legs or something like that.”[90]
[90] T 95-96
49In his statement he said the plaintiff did not want to go to hospital because it would lead to him losing his job. In cross-examination he said that Mr Ullah had said to the plaintiff, from the start, “Why are you not straightaway, got injured at that time, straight away go to the office and say you injured yourself. They will take care of everything.”[91]
[91] T 99
50A few days later in hospital; the plaintiff told Mr Jalil he had told the doctors he was injured at home.[92] He agreed the plaintiff thought he would be in trouble and stated:
“Yes, because he was riding the forklift or something like that, he did a mistake and then he injured himself. So he thought they will straightaway fire me, because (indistinct) and big mistake”.[93]
[92] T 102-103
[93] T 103
Evidence about the stocktake on 29 June 2018
51In evidence, the plaintiff denied being involved in a stocktake, however in cross-examination he agreed being involved in a stocktake for one or two days.[94] He agreed Mr Alvarez asked him to assist, and he recalled assisting a woman and that she would write things down and he would tell her how many. When it was put he did the stocktake on 29 June 2018, he stated, “I don’t remember 29 June but I got injured, there is CCTV, there is footage there.”[95]
[94] T 59
[95] T 60
52Mr Alvarez stated in his statement that on 29 June 2018 the plaintiff did not “clock on and off” using the fingerprint system therefore he does not know what time he started or finished work. Mr Alvarez stated “I do know he worked in the workshop performing stocktake with Micha on this day. I am also aware he was paid for working on this day.”[96] He knew this because from 25 June 2018, all staff were to be made available to count stock as a new inventory system was being implemented on 1 July 2018.
[96] Exhibit D-A
53Whilst Mr Alvarez could not recall the exact instructions he gave the plaintiff on 29 June 2018, he stated if the plaintiff started as he said, at 6.00am, he would have been cleaning bins and probably started the stocktake with Micha at 8.00am or 10.00am depending on when Micha started and the plaintiff would have finished at about 4.00pm.[97]
[97] Exhibit D-A
54Mr Alvarez stated the stocktake was the plaintiff’s last day of work and he did not come back to work after 29 June 2018.[98]
[98] T 115
55In cross-examination, Mr Alvarez could not recall how many days the stocktake took, or if it commenced on 25 June 2018 or if it was conducted on 26 June 2018.[99]
[99] T 145-147
56Ms Jessica Barilla, General Manager of the defendant swore an affidavit dated 12 October 2022.
57The plaintiff‘s timesheet shows on 29 June 2018 he worked until the end of his shift at 4.00pm. Ms Barilla exhibited his timesheet for period 27 June 2018 to 3 July 2018. She states on 29 June 2018, in addition to the plaintiff’s cleaning duties he assisted with a stocktake. Ms Barilla exhibited his handwritten notes in relation to stocktake duties.[100]
[100] Exhibit D-C
58With respect to the payroll records, Ms Barilla stated the entries in black indicated the worker had not used the fingerprint system to clock on and off (which are indicated in blue) and pay roll has updated the standard hours of work to ensure the worker was paid. She stated quite commonly people forget to use the fingerprint system so when that happens she checks the work attendance and advises payroll.[101] If incomplete, in that the worker has clocked on but forgotten to clock off, or vice versa, the same thing occurs. To be recorded in blue requires a clock on and a clock off.
[101] T 176
59Ms Barilla stated she would have asked if the plaintiff worked on 2 July 2018 and 3 July 2018 which she has verified from someone on site, in this case the plaintiff’s supervisor Mr Alvarez, on Wednesday 4 July 2018 explaining why payroll has processed those two days of pay.
60In cross-examination, despite being advised the plaintiff was in hospital on 2 July 2018 and 3 July 2018, Ms Barilla maintained that he worked on 2 July 2018 and 3 July 2018 because of the evidence she had of the payroll record.[102]
[102] T 181
61Further, Ms Barilla relied on the timesheet that the plaintiff worked until 4.00pm on 29 June 2018.
62In terms of the handwritten stocktake record, Ms Barilla believed it to be the plaintiff’s handwriting. Although she stated the stocktake could not have been done on the 25 June 2018 or 26 June 2018, she then agreed it took weeks to do the stocktake.[103] She agreed the stocktake would have taken a number of days and involved a number of staff to assist Micha. Ms Barilla stated she was told the plaintiff assisted with the stocktake on 29 June 2018.[104]
[103] T 184
[104] T 185
Workcover claim
63When asked why he put a Workcover claim in November 2018, the plaintiff stated he spoke with a friend who told him about Workcover, and he spoke to his case manager who took him to a legal centre.[105] He agreed for months after the injury he only told his friends he had been injured at work.[106]
[105] T 49
[106] T 56
64Ms Barilla disputed liability for the plaintiff’s claimed injury and exhibited the Employer Injury Claim Form dated 26 November 2018 to her affidavit dated 12 October 2022.
The defendant’s submissions
65Counsel for the defendant submitted the plaintiff’s case is that he left work at 7.30am on 29 June 2018 and arrived home, then at some stage had a discussion with his housemates. He went to the hospital and told the hospital he injured his feet with a cupboard falling upon his feet. Counsel submitted the plaintiff has made a prior inconsistent statement,[107] and submitted the plaintiff has sought to call prior consistent statements, from Mr Ullah and Mr Jalil. The plaintiff has attempted to fortify his position stating he told Mr Ullah while he was still at work, in the company of Mr Alvarez, that he had injured himself at work and had to go home.[108]
[107] T 204
[108] T 205
66Counsel went on to submit that although the plaintiff states he called Mr Ullah on the telephone while he was driving with Mr Alvarez, Mr Ullah never received this call and his affidavit states he knew the plaintiff hurt his feet at work when he got home from work, as he was at home and his feet were very swollen. Mr Ullah was not asked by Counsel for the plaintiff whether he received a telephone call from the plaintiff during the morning that day. Counsel for the defendant referred to Larner v George Weston Foods,[109] that an inference to be drawn is that the witness Mr Ullah was not able to give evidence to assist the plaintiff’s case. Counsel went on to submit there was no evidence from any witness apart from the plaintiff that “anything was said concerning this issue until much later in the day when he was at home.”[110]
[109] [2014] VSCA 62
[110] T 208
67Counsel submitted the plaintiff made up the phone call to Mr Ullah in the morning, as Mr Ullah’s evidence was he only learned of him being unwell when he got home.
68Counsel submitted the plaintiff’s case required corroboration and submitted why make up a different cause of injury for a serious condition: “when of course, you’d be most concerned, in my submission, with your treatment for your health as opposed to trying to cover up something about a job?”[111]
[111] T 210
69Counsel submitted Mr Ullah first learned about the plaintiff’s injury when he arrived home from work and secondly, the cause of the injury was not immediately discussed, as Mr Ullah’s priority was to get him to hospital.
70Counsel challenged the plaintiff’s corroborative evidence he told Mr Ullah about the work injury. He submitted the plaintiff was dishonest as there are two versions, firstly, he hurt himself at work and secondly, he hurt himself at home and there is also the ‘untruth’ that “I told my friend when I left at…7.30 tell the boss I have a stomach ache. But I’ve been injured. Don’t tell him I’ve been injured.”[112]
[112] T 212
71Counsel turned to the variable versions the plaintiff gave of calling his friend Mr Ullah, what Mr Ullah said to him and what he did or did not tell Mr Ullah to tell the boss. Particularly Exhibit P-6 being the plaintiff’s statement dated 25 January 2019 at paragraph 27 which reads; “Immediately following the accident, I called my supervisor (Jose) and told him that I was unwell. I said that I would come back on Monday (2 July 2018). My supervisor said that is fine, go home. I then immediately went home.” Counsel submitted “it’s evident that is a clear lie. That is a blatant dishonesty.”[113]
[113] T 222
72Counsel further challenged the plaintiff’s credit. For example, in evidence in chief, the plaintiff denied being part of a stocktake, but in cross-examination agreed he had been. Counsel put the stocktake occurred on Friday 29 June 2018 and the reference in Micha’s statement of Friday 26 June 2018 was a typographical error.[114] Counsel questioned why the plaintiff made up a story at the hospital about the cupboard falling on his feet and adds “a bit of cream” by stating he did not have his shoes on and was in bare feet.[115] Counsel further queried what bare feet and a cupboard has got to do with his job and asked “Why can’t he say a bin fell on his feet?” Further, although his friends told him to tell the truth, the plaintiff does not do so until November 2018 when he makes his compensation claim.
[114] T 214
[115] T 218
73The plaintiff tendered two reports of orthopaedic surgeon, Mr Troy Keith dated 10 September 2022 and 24 May 2023. Counsel for the defendant submitted Mr Keith’s opinion is “splattered with speculation and supposition”.[116] Counsel relied upon the opinion of orthopaedic surgeon Mr Michael Dooley noting that the injury is equally able to have been caused by a cupboard.
[116] T 220
74Counsel ultimately submitted the plaintiff cannot overcome his prior inconsistent statement with a further fiction and is unreliable. There are too many inconsistencies for the plaintiff to make out his case.
The plaintiff’s submissions
75Mr Middleton noted the plaintiff’s history of limited education until he was 12 or 13, leaving Afghanistan via Pakistan and spending two to three years in a detention camp in Indonesia. He submitted this background gave the plaintiff his suspicions about authority and authority figures, and a reluctance to jeopardise the prospect of coming to Australia as he did as a refugee.[117]
[117] T 224
76He has significant cultural and language difficulties. It was submitted in the plaintiff’s evidence he did not always understand the import of the question and gave answers which did not reflect what the question was aiming at. This is compounded by his limited education. Despite this, he was credible and without guile.[118]
[118] T 225
77Both Mr Ullah and Mr Jalil gave evidence the plaintiff was working as a forklift driver.
78Counsel acknowledged there were some “irreconcilable inconsistencies” in the plaintiff’s evidence, such as contained in his statement at Exhibit P-6.
79Counsel submitted Mr Alvarez had memory problems, and Ms Barilla was immutable in parts of her evidence, for example in her insistence that the plaintiff worked on 2 July 2018 and 3 July 2018 despite evidence of his hospital admission.
80With respect to the stocktake, the plaintiff had some difficulties understanding, as he asked “what do you mean by stock and take, what is that?”. In cross-examination, he accepts he did do a stocktake, one or two days, but not on 29 June 2018, which was the date “I got injured”.[119]
[119] T 228-229
81In terms of the plaintiff’s credit, he said he got the sack from SKM Recycling when asked why he left that job, which demonstrates his veracity and lack of guile.
82It was submitted the plaintiff’s evidence about being at work at 6.00am is consistent with other evidence about staff arriving and leaving.
83The plaintiff freely admitted to discussing the affidavit prepared by Mr Ullah, which it was submitted also goes to his credit.
84If I accept Mr Ullah’s affidavit evidence that when Mr Ullah got home “I spoke to Ghulam he told me it happened at work” then, Counsel submitted, “that’s a very big step towards accepting the plaintiff in this case.”[120] Counsel submitted it is explicable Mr Ullah might not remember the conversation in his truck and it is accepted Mr Ullah does not have knowledge of the conversation alleged by the plaintiff and, Counsel further submitted, “And maybe it didn’t happen and the plaintiff’s wrong about that.”[121]
[120] T 233
[121] T 233
85Mr Ullah’s evidence should be accepted as his credit was reflected in his answers such as “that is a question to ask Ghulum”, and further, he did not offer any useful evidence when asked about the cupboard at home.
86Counsel submitted the time sheets and the defendant’s records were at odds with the plaintiff’s hospital admission. Mr Alvarez asked the plaintiff to start work on 29 June 2018 at 6.00am and it is conceivable he was there first, as he worked odd hours regularly and could start at 1, 2, 4 or even 6 o’clock.
87Mr Jalil was on night shift and woke up at 2 or 2.30pm and encountered Mr Ullah and the plaintiff in the plaintiff’s room and the plaintiff had swollen feet.
88Both Mr Ullah and Mr Jalil were credible witnesses, not attempting to embellish for the sake of the plaintiff.
89It was submitted if I accept their evidence, then the plaintiff was clearly not at work on the afternoon of 29 June 2018 performing a stocktake as alleged by the defendant. The payroll record of him working until 4.00pm is an administrative entry only.
90Exhibit P-15, the plaintiff’s bundle of text exchanges with Alex demonstrates his willingness to work at all hours, such as 4am. It was submitted: “he’s new to the country, and he’s in his second job, having been sacked from his first, and he wants to retain the job.”[122] Even when he responds to Alex on 1 July 2018, he says he is sick, Counsel submitted this is because “he doesn’t want to give up the ghost on his job. He wants to do all he can to preserve his job.” He stated in his affidavit he was hoping to get back to work on Monday or Tuesday, “I didn’t know how bad my injury was.”[123]
[122] T 238
[123] T 238
91It was submitted the text messages were demonstrable of his desire to protect his job and were totally consistent with his concern and worry about losing his job. It was submitted when he was injured all he could think about was retaining his job. Mr Alverez confirmed his good opinion of the plaintiff as a worker and would trust him with the keys.
92Counsel submitted Mr Keith’s opinion should be accepted given his qualification as an orthopaedic surgeon, foot and ankle surgeon. He is objective because he has a “dig at the plaintiff, describing his presentation as being inconsistent.”[124] In his second report, he states the injuries were more likely sustained by the metal bin falling on his feet. It was submitted as powerful evidence there were no abrasions or lacerations on the feet which might be expected if he was in bare feet.
[124] T 240
93In conclusion, it was submitted the three witnesses for the plaintiff should be accepted to prove on the balance of probabilities the plaintiff’s case. Counsel also referred to Ansett Australia Ltd & Anor v Taylor, [125] that the acceptance of the claim is an admission, and he also referred to Alcoa of Australia v McKenna.[126]
[125] [2006] VSCA 171
[126] [2003] VSCA 182
Analysis
The plaintiff’s credit
94A focus of the defendant’s case was the plaintiff’s credibility, firstly, having not told his workplace about the injury and then, secondly, telling the hospital he injured himself at home.
95The defendant’s case is there was no workplace injury. The defendant notes there was no report of a workplace injury to the defendant and the plaintiff gave various versions as to whether he called Mr Ullah after his injury. In one statement he states he called Mr Alvarez.
96Despite the attack on his credit, I found the plaintiff to be a creditable witness.
97Firstly, I note the plaintiff’s third language is English, as his native language is Dari and he also speaks Pashtu and he understands Urdu / Hindu as well.[127] From my observations of him in the witness box, although he had a flat and exhausted mien, he was forthcoming and appeared honest in his evidence and did his best to answer the questions. I note the submissions about his limited education and that he fled Afghanistan.
[127] PCB 20
98Secondly, in his first affidavit dated 15 July 2021 he states at the time of the incident “I was worried about losing my job and didn’t know my rights under WorkCover. I said the accident happened at home.”[128] In his statement dated 25 January 2019 he stated: “I did not complete an incident report at the time as I returned home immediately. Also, because I was casual, I was concerned that if they thought I had been injured, that they would not employ me further. I did not want to lose my job as it is not easy for a newly arrived refugee to get a job. I initially believed that I would recover after resting on the coming Saturday and Sunday.”[129] The plaintiff has maintained this explanation for firstly not reporting the incident at work and secondly telling the hospital it happened at home with a cupboard. In light of him being a newly arrived refugee and having been sacked from a previous employment, this explanation appears to be credible. In addition, he thought he would feel better after two or three days.[130] His explanation for not telling work and not telling the truth at the hospital appears to be consistent with his poor English skills, his limited education, his limited time in Australia, his lack of knowledge about WorkCover and fear he would be in trouble and lose his job.
[128] PCB 14
[129] Exhibit P-6
[130] T 39
99I now turn to consider the issues in dispute.
The plaintiff’s duties
100I accept the plaintiff’s duties included washing the metal bins and driving a forklift. Although this was disputed by the evidence of Mr Alvarez, I do not accept his evidence on this point for the following reasons.
101Firstly, he gave the plaintiff a thirty-minute induction training when he commenced work but could not provide any details of what it comprised. Despite this, he was specific in his evidence he did not instruct the plaintiff how to wash a metal bin. The plaintiff’s evidence was Mr Alvarez gave him instructions on how to do it.[131]
[131] T 65
102Secondly, he only fleetingly saw the plaintiff at work and gave evidence that most workers knew what they had to do. When asked if, in an eight hour day, he might see the plaintiff for five minutes, he replied “If.”[132]
[132] T 157
103When he employed the plaintiff, he did not ask the plaintiff about his previous employment, which involved driving a forklift. He stated he was unaware the plaintiff had a forklift licence despite the plaintiff’s evidence he both had a forklift licence and drove a forklift once, twice, three times each day.
104Mr Alvarez stated he was so busy he did not have time to call the plaintiff when he did not attend for work. This level of busyness suggests it is not surprising he did not see the plaintiff washing metal bins or driving the forklift. The fact the plaintiff was so quickly replaced, and without contact or question, is suggestive of staff turnover.
105Although there may have been a technical demarcation and different workers employed to wash plastic and metal bins, I do not accept this was explained to the plaintiff in his induction.
106Both the plaintiff’s housemates described him as employed as a forklift driver. In addition to driving a forklift, Mr Ullah said the plaintiff also cleaned bins.
107Finally, Ms Barilla stated she asked Mr Alvarez to provide the information for payroll regarding the plaintiff’s work attendance. The inference is Mr Alvarez has told Ms Barilla the plaintiff was at work until 4.00 pm on Friday 29 June 2018 and also worked full days on 2 July 2018 and 3 July 2018. The evidence is clear the plaintiff did not work on 2 July 2018 or 3 July 2018. This suggests Mr Alvarez was not accurate in the information he provided about the plaintiff’s whereabouts to Ms Barilla. This also makes me question the reliability of his evidence.
108Ms Barilla was vague in her evidence about the plaintiff’s duties, such as him acting as a truck jockey, and I do not accept she was close enough to what was happening on the ground to be aware of the exact nature of his duties.
109For these reasons, I accept the plaintiff’s evidence he washed both plastic and metal bins and drove a forklift at work.
29 June 2018
110I accept the plaintiff’s evidence he injured himself when a bin fell from the tines of a forklift on his feet. Although initially there appeared a level of implausibility about the plaintiff being at work early at 6.00am, I accept he was there at that time. Firstly, because Mr Alvarez agreed he probably asked him to start early, and secondly, the text messages between Alex and the plaintiff (Exhibit P-15) make it clear the plaintiff was often at work at all hours, very early in the morning.
111The plaintiff stated after loading a truck, Mr Ullah and Mr Alvarez left in the truck, which Mr Alvarez denies. The plaintiff stated he was alone after they left. I find it consistent with the work ethic demonstrated from the text messages as well as Mr Alverez’s confirmation that his attendance, attitude and performance were all “very good”,[133] and his obsession with maintaining his job, that the plaintiff would start washing a metal bin using a forklift in the manner he described early on the Friday morning.
[133] DCB 8
112I accept the mechanism of injury described by the plaintiff as he later reported to doctors such as Mr Keith and Mr Dooley.
113I accept Mr Keith’s opinion that the metal bin falling onto the plaintiff’s feet was more than likely the cause of the plaintiff’s injury.[134] I accept he has the relevant expertise to make the assessment and has more specialised qualifications than Mr Dooley. Further, Mr Keith made the observation there were no abrasions or damage to the skin identified on the plaintiff’s feet at the hospital on 29 June 2018.[135] This is consistent with a finding that the plaintiff’s version that a cupboard fell on his bare feet was a fabrication.
[134] PCB 150
[135] PCB 151
114Further, the nature of the plaintiff’s crush injures are consistent with the weight of the metal bins which weigh upwards of 120 kilograms.[136]
[136] T 139
What the plaintiff said and did subsequently
115The evidence is contradictory as to whether the plaintiff told anyone after the injury. Whilst his statement dated 25 January 2019 says he immediately “called my supervisor (Jose) and told him that I was unwell”, this did not accord with the plaintiff’s oral evidence and is not mentioned in any of his affidavits which are silent as to whether he contacted anyone. In his oral evidence, he stated he called Mr Ullah who had left work in his truck with Mr Alvarez and told him he was injured, but not to tell Mr Alverez, and say he was sick. In his evidence, Mr Ullah stated he had no knowledge of the plaintiff’s injury until he returned home from work on 29 June 2018. Defendant’s counsel submitted I should draw an inference that Mr Ullah would not have been able to assist the plaintiff’s case that the plaintiff telephoned Mr Ullah on the morning of 29 June 2018 to tell him he had been injured at work, and I draw that inference.
116Defendant’s counsel submitted this was a significant failure by the plaintiff to corroborate his inconsistent statement. I accept it is inconsistent evidence from the plaintiff that cannot be reconciled. It is a piece of the evidence that does not support the plaintiff’s case. He may have been mistaken about calling both Mr Alvarez and Mr Ullah. The plaintiff may have been attempting to strengthen his case as submitted by the defendant’s counsel. This may have been either consciously or unconsciously, however I am of the view it does not impact the plaintiff’s credit on the main issue which is whether the injury occurred at work. This is because regardless of whether he made a telephone call, the evidence supports he was at work on 29 June 2018 and then went home injured and told his flatmates what had happened later that afternoon and was taken to hospital.
117There is corroborating evidence from the plaintiff’s housemates later the same day. I agree with Counsel for the plaintiff’s assessment that both Mr Ullah and Mr Jalil did not seek to overstate their evidence and were frank and honest witnesses.
118In my view, their evidence is of corroborative and contemporaneous value to the plaintiff’s version of his injury occurring at work. In their affidavits, both Mr Ullah and Mr Jalil each state the plaintiff told them at home that afternoon he had injured himself at work.[137] In his evidence, Mr Jalil said he woke up to find Mr Ullah discussing it with the plaintiff who was laying injured in bed. They convinced him to go to hospital. In cross-examination, Mr Ullah referred to the plaintiff “later on he explained each and every thing” and that although the plaintiff told the doctors a different story “we understand that he injured in the workplace, or when he told everything after that.”[138] It is not entirely clear from these answers when the plaintiff told Mr Ullah he had been injured at work. Mr Jalil stated that when he woke up and found Mr Ullah in the plaintiff’s room talking, he stated “Ali was explaining what happened or something like that.” Overall, I find Mr Ullah and Mr Jalil’s evidence supports that the plaintiff told them his injuries occurred at work as stated in their affidavits and it is more probable the conversation about what had happened to the plaintiff occurred when they found him injured and got him into the car and Mr Ullah drove him to Sunshine Hospital.
[137] PCB 22 and PCB 153
[138]T 79
119The plaintiff has been candid as to what he told the hospital and the reasons why. I accept those reasons are valid and plausible. He almost obsessively wanted to keep his job and believed a work injury would jeopardise his casual employment status and he genuinely held the belief he had a chance of getting back to work on the Monday. This optimism is somewhat illustrated by the fact he put the bin and forklift away and went home and took two Panadol and went to bed. Given the plaintiff’s historical life struggles and desperation to keep his job, in my view this adequately explains his reasons for seeking to prioritise his job over his health.
Stocktake on 29 June 2018 and work on 2 July 2018 and 3 July 2018
120The evidence supports the plaintiff did participate in a stocktake, however I am satisfied he did not remain at work on 29 June 2018 and complete a stocktake with Micha. There is a clear mistake about the date as I accept the plaintiff’s and Mr Ullah and Mr Jalil’s evidence he was home in bed during the afternoon. Clearly, Ms Barilla is mistaken in her affidavit exhibiting the handwritten stocktake records purporting to be written by the plaintiff which are not in his handwriting.[139]
[139] T 20
121The medical evidence was the plaintiff was transferred from Sunshine Hospital to Footscray Hospital for two surgeries on his feet and then to Williamstown Hospital for rehabilitation for a period of nearly three weeks after 29 June 2018. Given this, the defendant’s timesheets indicating he worked on 2 July 2018 and 3 July 2018 are incorrect.
Conclusion
122For the above reasons, I am satisfied by the evidence on the balance of probabilities the plaintiff has sustained a compensable injury at work. The evidence is sufficient so that I do not need to consider whether to draw an inference pursuant to Ansett v Taylor.
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