WCRA: factual causation failure despite English being a second language

Bakhit v Brisbane City Council [2017] QDC 155

Rafter SC DCJ

The plaintiff was a labourer employed by the defendant, Brisbane City Council. On 13 July 2011, the plaintiff claimed to have suffered a back injury while lifting a concrete block weighing approximately 31.7 kilograms by himself.

The plaintiff alleged that after he had lifted the block, he twisted to walk left and then felt an acute onset of sharp pain in his lower back. The plaintiff was diagnosed with an L4/L5 disc protrusion and nerve root compression and subsequently underwent surgical intervention in September 2012.

As a result of the injuries, the plaintiff claimed that he was not suited to any form of manual employment.

The plaintiff submitted that he did not receive training or instructions relating to the safe lifting of concrete blocks and, that the regular practice was to lift blocks individually.

The defendant submitted that it had devised a system whereby the concrete block was to be lifted by two people using the appropriate equipment. The defendant contended that if the plaintiff did lift the block by himself then the plaintiff undertook an activity involving obvious risk and consequently the plaintiff’s claim against the defendant should be reduced by 100%.

The defendant alleged that it did not happen or on the date alleged or in the manner alleged. Hence, there was a significant dispute as to the factual cause of the injury.

Breach of duty of care

After setting out provisions from Chapter 5, Part 8 of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA), Rafter SC DCJ examined the witness evidence:

[69] The evidence led in the defendant’s case fell well short of establishing a system which required the use of lifting devices. The evidence in relation to the use of lifting devices was quite vague. Although lifting devices were available on site, the defendant failed to prescribe a system requiring that they be utilised to lift the concrete blocks. In this regard, the defendant failed to implement proper instructions and monitoring at the Bartley’s Hill reservoir. The defendant thereby breached its duty to take precautions against the risk of injury.[91]

[70] The precautions that a reasonable person in the position of the defendant could have taken in order to reduce the risk of injury included providing adequate supervision to ensure that safe working practices were adopted. It follows that the defendant has breached its duty to take precautions against the relevant risk of injury.

Factual causation

As to the mechanism of injury, his Honour was not persuaded by the inconsistencies and contradictory statements in the plaintiff’s account:

[96] On 26 March 2012, the plaintiff signed a WorkCover Queensland claim form. The form was filled in by Dr Ibrahim, who said that he wrote down the details given by the plaintiff. The form records the date of injury as 9 October 2011. The form states that the injury occurred as a consequence of “heavy lifting.” The place of injury is recorded as “Daisey (sic) Hill.” Dr Ibrahim confirmed that the plaintiff had stated that the place of injury was Daisy Hill. Further, the workers’ compensation medical certificate signed by Dr Ibrahim on 26 March 2012 notes the cause of injury as “heavy lifting timber blocks.” The plaintiff agreed that he had told Dr Ibrahim that the date of injury was 9 October 2011. However, he could not recall having said that the incident occurred at Daisy Hill. The plaintiff’s response to whether he had told Dr Ibrahim that the cause of the injury was heavy lifting of timber blocks was by no means clear.

[99] It can be seen then that having failed to mention his injury to work colleagues on 13 July 2011 the plaintiff’s subsequent statements contain inconsistencies in relation to the date of the incident, the place where it occurred, and the way in which the work activity was being carried out. These inconsistencies cannot be explained by the level of the plaintiff’s English language skills. Dr Ibrahim said that he sometimes communicated with the plaintiff in English and over the course of treating him, his English ability had not changed.

[100] The plaintiff said in evidence-in-chief that he did not read or write English. However in cross-examination he initially agreed that he could read English, but shortly afterwards said that he could not. When asked whether he could write in English, he said “I can’t write properly.” The plaintiff has held a Queensland driver licence since 2007.

[101] In any event, the plaintiff did not challenge having made any of the contradictory statements. His response, invariably, was that he could not remember having made any of the statements that were put to him.

[102] My impression of the plaintiff is that he exaggerated his difficulties in communicating in the English language. The contradictions in his evidence cannot be explained by his ability to speak the English language.

[103] When the plaintiff was asked questions in relation to issues that potentially affected his claim for damages, he repeatedly claimed that he could not remember. Although he agreed that he had received manual handling training at the course held on 8 July 2010, he did not seem to recall any aspect of that training.

[104] The plaintiff’s explanation for the error in the date on the application for compensation that he was scared and confused during the meeting on 11 December 2011 is unconvincing. He did not explain why he was scared and confused.

[105] The plaintiff’s inability to recall conversations that contain inconsistent statements made by him means that there is no credible explanation for those statements.

His Honour continued, highlighting the variation in the plaintiff’s application for compensation and subsequent documents:

[106] There are significant variations in the plaintiff’s version as to the mechanism of injury, particularly in the compensation application dated 9 December 2011 when he stated that he was injured when he was lifting blocks of concrete with another employee, and in the WorkCover Queensland claim form dated 26 March 2012 when he said he was lifting timber blocks.

[107] There are significant inconsistencies in the plaintiff’s account of when he began to experience pain. The contradictory statements made by the plaintiff are based on contemporaneous notes and records, and are therefore a reliable account of what the plaintiff did in fact say.

The plaintiff’s claim was dismissed, with Rafter SC DCJ finding that the inconsistencies in the plaintiff’s evidence rendered it unreliable.

Had the claim been successful, his Honour assessed damages at $436,449.27 clear of the WorkCover refund.

David Cormack – Brisbane Barrister & Mediator

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