Credit – refugee, language & other barriers

Baig v AWX Pty Ltd & Anor [2017] QSC 325

The plaintiff worked via the first defendant’s labour hire company at the second defendant’s abattoir in the paunch room. His task was to remove the ‘bible’ (omasum) from the beast’s paunch. The plaintiff alleged he sustained a lower back injury on 5 July 2010. The defendants contended the plaintiff was a deceitful man and did not accept he was injured at work and the damages claimed.

Crucial to the issue of credit was that the defendant was a refugee with poor English and understanding of practices in Australia. The plaintiff came from Afghanistan, having fled after witnessing the Taliban execute his aunt and uncle. The plaintiff’s journey to Australia took many years through numerous countries. The plaintiff arrived via boat being picked up at sea in 2009 and taken to Christmas Island. The plaintiff’s date of birth was unknown and he was accordingly given a date of birth, making him 18. The plaintiff’s English was poor and attended school for a short period in Perth while in the immigration detention before taking up work at the suggestion of a friend in Rockhampton at the abattoir on 30 May 2010.

Liability

It was accepted that around 1603 beasts a day were slaughtered and the plaintiff was required to repeat his task about that many times, or a bit less if animals were condemned. It was also accepted that number allowed the plaintiff about 19-20 seconds for each paunch to be dealt with. On 5 July 2010 the plaintiff alleged that bulls were being processed (being larger than cows) and the paunch on the second chain was not presented in the right manner, causing the plaintiff to turn it and reach and lie across the table to reach the paunch, make the necessary cuts in an effort to separate the bible. In so doing, the plaintiff alleged he felt a sharp pain in his lower back and buttock.

The defendants raised numerous inconsistencies which they alleged went to the injury not being sustained and the plaintiff being untruthful. Notably, the allegation that plaintiff reported back pain to his doctor on 3 July 2010, which had been present for 10 days. The defendants also alleged inconsistencies in the reporting to expert doctors, the expert engineer and differences in the notices of claims for damages as against the pleadings.

McMeekin J made the following observations as to the salient feature of the plaintiff’s case:

[35] An important feature of the case is that Mr Baig was not fluent in English in 2010 and he is not fluent now. Nor was he familiar with Australian habits and practices. When comparisons are made with what solicitors, doctors and engineers have reported there are more than the usual problems with ensuring that his meaning has been accurately understood and recorded. And it needs to be borne in mind that he may not have understood them. When it is said that his conduct was discreditable I see no reason to think that it was from his perspective. I am not sure that many Australian born workers would necessarily act as the defendants urge Mr Baig should have acted. But cultural differences and the pressures on a refugee immigrant provide a very different background against which to judge the actions and motivations of Mr Baig.

[36] Some of these complaints ignore the fact that they reflect creditably on Mr Baig. For example why remain stoical when in Court but complain in your evidence if your aim is to deceive? Why alert the Court to improvements in your condition if that is your aim? If your intent is to deceive why tell a neurosurgeon that you have sciatic symptoms immediately after the subject incident but not maintain that to the Court? I think it fair to say that the experience of lawyers used to these sorts of claims over the years has been that on many occasions plaintiffs have been distracted by the intense concentration required when giving evidence and sat or stood for longer periods than they and others report is normal for them. That people have differing recollections of precisely when symptoms come on and how severe they were is a feature of almost every personal injury case. When the evidence that is given by the plaintiff goes against his case (e.g. not insisting on the presence of sciatic symptoms from the very first moment), and where that must be obvious to the plaintiff, then that is a usually taken as a good sign of reliability. It certainly goes a long way to meeting a claim of deliberate dishonesty. (footnotes omitted)

McMeekin J found that the lack of recollection by the plaintiff about the attendance was unremarkable given the time that had elapsed and that the plaintiff had gone to work. All that could be said was that there was a soft tissue diagnosis which was different to the prolapsed disc the plaintiff alleged. Similarly, his Honour was not persuaded that the plaintiff ought to have informed his supervisors and that in not doing so, the plaintiff was not hiding an injury.

As to the inconsistencies in what was reported to expert doctors and in the claim forms, his Honour formed the view many could be reconciled by the evident language barrier, lack of education and being unfamiliar with cultural and other processes in a foreign country.

There was much contention about the plaintiff alleging the chain sped up and there was a build-up of paunches to be processed. The defendant claimed these were not established. McMeekin J took the view that the issue was whether the plaintiff had to lean across the table to reach the paunch, and in so doing adopted an extreme posture in an awkward position when applying a pulling force. But to get this point, it was not essential that there had been a build-up of paunches.

In reaching conclusions about the facts, his Honour took support from a co-worker, Mr Mohannadi who gave evidence about the speed of the chain, the video of the system of work and the use of the ‘stop button’ if the chain was too fast, and found Mr Mohannadi to be a credible witness who had nothing to gain from the outcome of the trial. In so doing, his Honour preferred the evidence of Mr Mohannadi even at times when it was different to the expert engineer. His Honour also noted there was evidence that despite the average, there were clear examples of when that time period was 13 seconds, which would cause someone to rush.

His Honour was satisfied the plaintiff was a witness of credit and incidental inconsistencies could be treated on the basis that it was inevitable over many years that recollections may change.

As to the incident is Honour found:

[95] The essential findings are that for whatever reason Mr Baig was required to work at pace. A bull’s paunch was on chain 2. Because of the timing of delivery and his own speed of work the chain had commenced to take the paunch away from him. It was at a distance from him. He extended right across the table to reach it. He had not managed to slice the bible off. A cut or two had been made. He inserted his fingers into that cut and hauled the bible towards himself. As Mr Kahler explained it is quite possible in that manoeuvre to lift as well as pull. He felt an immediate onset of pain. That he would need to adopt such a posture to perform this task was not an unusual event. (footnotes omitted)

As against the labour-hire company s.305B and s.305C of the Workers’ Compensation and Rehabilitation Act 2003 applied, and for the abattoir the common law. His Honour found the risk was not insignificant and that the probabilities of having to reach over from time to time would be overwhelming. It was also accepted that the paunch could weigh between 50 – 90 kg and in using a weaker outstretched hand, the forces involved would be exceeded to that recommended. His Honour was satisfied that the precautions taken were inadequate and in particular the defendants could have made the distance of the table shorted by 500mm, undertaken a better Job Hazards Analysis to reflect the actual risks, provided better training by reference to the Codes and Standards, and instruction in the use of the ‘stop button’. In relation to the plaintiff having delegation to devise the work system of the stop button his Honour noted:

[124] The submission is that the workers were at liberty to use the “stop” button “if required”. This submission reverses the true position at law as to where the responsibility for devising a safe system of work lies and ignores the evidence of Mr Kahler as to the deficiencies in the training and instruction given to the workers. In effect, the system here was that the employer left it to an untrained worker (and in this case a 19 year old Afghani refugee with 10 weeks experience by the day in question) to determine when it was that the safety device should be activated. In the text The Liability of Employers the authors, in discussing the concept of delegating to the worker the responsibility of devising a safe system of work, said:

“No doubt the situations where the injured employee has been invested with full responsibility for the system, and properly so, will be marginal and rare. A basis for finding in favour of the plaintiff will always be disclosed if the delegation is less than complete or where it is complete but the requisite skill of the employee to accept such full responsibility is in debate.”

(footnotes omitted)

His Honour found this was not one of those cases.

Accordingly, his Honour was satisfied with breach of duty. As to causation, there were two arguments. The first being a denial of the injury happening (namely earlier) and if it did happen, it did not happen in the way described, in particular, the onset of the prolapsed disc and sciatica. For the reasons explained, McMeekin J was satisfied the injury did happen. As to the onset of the prolapse and sciatica, his Honour was satisfied that it was within a relatively short period of time from the incident and there was no other intervening event. Ultimately, his Honour took the view that medical evidence could take the evidence so far and that the connection between the injury and the known or assumed facts was a questioned to be satisfied on the balance of probabilities by the Court: EMI (Australia) Ltd v Bes [1970] 2 NSWR 238.

Damages

General Damages

His Honour accepted that there was something amiss with the plaintiff’s back on 3 July 2010. As to how it was to be accounted for fell to be determined by reference to the divide in authorities of Watts v Rake and Purkess v Crittenden and Malec v JC Hutton Pty Ltd. His Honour was not satisfied that the defendants overcame the evidentiary onus that but for the incident on 5 July 2010, the plaintiff’s back would have inevitably ended up in the same position. His Honour was satisfied with the evidence of Dr Campbell that the prior incident was minor. Dr Campbell assessed 10% impairment and of which 9% was attributable to the incident.

McMeekin J allowed $80,000 by reference to the decision Paskins v Hail Creek Coal Pty Ltd & Anor [2017] QSC 190, and the plaintiff being younger.

Loss of earning capacity

The plaintiff was earning $875 nett per week and McMeekin J allowed $250,000 for past loss and interest at 5%.

As to the future, it was accepted that the plaintiff would be limited to labouring work, but that he would need to seek lighter work because of his shoulder and other complaints. The plaintiff contended for $1,000 per week for two years and then $400 per week for 40 years. His Honour allowed $320,000 – roughly $400 per week discounted by contingencies.

Past and Future Care

The plaintiff contended he received support from his housemates and Dr Campbell supported that there was limited assistance required. His Honour noted that the evidence was vague, but nevertheless allowed 1.5 hours per week for the past ($32,000), and care over 60 years of $55,660 and interest at 5%.

Specials – $40,000

Superannuation – 9.25% for the past and 11.33% for the future.

Fox v Wood – $4,940

Damages were assessed on the common law basis and the defendants did not require apportionment, hence damages were awarded at $964,254.11.

David Cormack – Brisbane Barrister and Mediator

 

 

 

 

 

 

 

 

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