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[2015] ACTSC 135
General information, not legal advice.
Supreme Court of the ACT
2015-05-29
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
APPEAL - Appeal from the Magistrates Court - Arbitration - Worker's compensation - Causation - Unchallenged expert evidence - Contrary expert evidence
Evidence Act 2011 (ACT), s 144
Magistrates Court Act 1930 (ACT), ss 256, 274(2), Ch 4, Pt 4.5, Div 3.10.2
Court Procedures Rules 2006 (ACT), r 3903, Ch 2, Pt 3.13
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Lukatela v Birch [2008] ACTSC 99; (2008) 164 ACTR 24
Morgan v Attorney-General (Qld) (1986) 24 A Crim R 342
Ruiz v Canberra Rex Hotel Pty Ltd (1974) 5 ACTR 1
Samuels v Flavel [1970] SASR 256
Seers v Exhibition Centre Pty Ltd [2009] ACTSC 85
Shaw v Donaldson (1988) 78 ACTR 1
Taylor v The Queen (1978) 45 FLR 343
Theodorelos v Nexus Products Pty Ltd [2009] ACTSC 149
1. On 21 February 2013, Bol Malek, the appellant, an employee of Remondis Australia Pty Limited (Remondis), the respondent, reported a problem with his knee to an officer of his employer. He said he was having trouble because of an incident and, when asked whether the incident occurred at work, he said, "No, I did it at home, I fell over in the shower". Some days later, he was taken to Ballarat Hospital because of the knee injury and was diagnosed as having septic arthritis in the knee.
2. In April 2013, he gave another explanation for the injury to the knee. He said he was removing a plastic bottle from a crate of metal at his employer's place of work. He used a kitchen knife which slipped and stabbed him in the knee.
3. He applied for worker's compensation and, when his claim was rejected, he sought arbitration under the Workers Compensation Act 1951 (ACT).
4. That arbitration took place on 11 November 2013 and, on that day, the learned Chief Magistrate found that he did not suffer an injury in the course of his employment nor a disease to which his employment substantially contributed.
5. Mr Malek has now appealed against that decision.
6. I have set out the process by which applications for arbitration in the workers compensation jurisdiction are made and conducted in Seers v Exhibition Centre Pty Ltd [2009] ACTSC 85 at [20]- [26].
7. Notwithstanding that the hearings are before the Magistrates Court, s 256 of the Magistrates Court Act 1930 (ACT) provides that Ch 4 of that Act, which sets out the procedure applicable to hearings for civil suits, does not apply. Similarly, Ch 2 of the Court Procedures Rules 2006 (ACT), which regulates the conduct of civil proceedings, does not apply; Pt 3.13 of those rules, and any other rules specified under r 3903, applies. There do not appear to be any such rules.
8. Section 197(1) of the Workers Compensation Act authorises any party to an arbitration before the Magistrates Court to appeal from the decision, order or award to this Court. Under s 197(2), Pt 4.5 (Civil Appeals) of the Magistrates Court Act 1930 (ACT) applies to such appeals as if they were an appeal from a judgment or order of a kind mentioned in s 274(2) of that Act.
(2) The Magistrates Court Act 1930, part 4.5 (Civil appeals) applies in relation to an appeal under subsection (1) as if -
(a) it were an appeal from a judgment or order of a kind mentioned in that Act, section 274(2) (Cases in which appeal may be brought); and
(b) for an appeal from a decision, order or award of a committee - the decision, order or award were a decision, order or award of the Magistrates Court; and
(c) any necessary changes, and any changes prescribed by regulation, were made.
10. Within Pt 4.4 of the Magistrates Court Act, s 274(2) permits an appeal to be brought as of right from a judgment or order in which the matter in issue amounts to or is of the value of $2,000 or more. There is no dispute that this is the position here.
11. In Ruiz v Canberra Rex Hotel Pty Ltd (1974) 5 ACTR 1 at 3, Woodward J held that the appeal under Pt 4.5 of the Magistrates Court Act is by way of rehearing. As it happens, that decision was also an appeal from the Magistrates Court under the Workers Compensation Act. See also Shaw v Donaldson (1988) 78 ACTR 1 at 4-5.
12. I described an appeal by way of rehearing in Theodorelos v Nexus Products Pty Ltd [2009] ACTSC 149 at [78] as follows:
Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.
13. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 126-7, Gleeson CJ, Gummow and Kirby JJ said:
[T]he appellate court is obliged to conduct a real review of the trial and ... of [the trial] judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 564, citing V Glannibanta (1876) 1 Pd 283 at 287).
14. In Lukatela v Birch [2008] ACTSC 99; (2008) 164 ACTR 24 at 29; [21]- [24], Rares J described the nature of an appeal by way of rehearing, although his Honour was there referring to an appeal under Div 3.10.2 of the Magistrates Court Act. The approach, however, is the same. His Honour said:
15. In this case, no further evidence was sought to be adduced on the appeal.
16. The relevant documents which might be regarded as constituting the pleadings in such proceedings are the Application for Arbitration by the applicant and the Answer by the respondent. These are prescribed forms. From them, the formal issues may be gleaned as follows.
17. Mr Malek sought weekly compensation for personal injury, namely, the knee injury, and recovery of the costs of medical treatment and other costs. The injury the subject of the application was said to be a penetration injury to his left knee which he said happened at the Hume depot of his employer on 18 February 2013, when he was baling recyclable materials. He said the injury happened when he was removing debris from a machine that sorts recyclable material. He said that he was totally incapacitated for work. In the application, he also stated that he did not report the injury until 22 March 2013 nor make an application for compensation until 22 April 2013 as he was unaware of his workers compensation entitlements and he was afraid of losing his job.
18. Remondis denied the claims and, in its Answer, put all matters in issue.
19. There was no issue before the Magistrate, however, that Mr Malek had a serious condition in his knee which prevented him from working.
20. All the medical witnesses, whose reports were tendered and who were not cross-examined by either party, agreed that Mr Malek suffered from septic arthritis in his knee.
21. The issue in the proceedings was how the condition developed.
22. A statement made by Mr Malek was tendered, providing details of the evidence he was to give in chief. He also gave oral evidence through an interpreter and was cross-examined. His evidence was as follows.
23. Mr Malek is a refugee who arrived in Australia from the Sudan with his wife and children on 25 January 2006. They lived initially in Melbourne but Mr Malek was unable to find work and he moved to Western Australia where he was able to find a job in 2008. He left his family in Melbourne. After some months, however, he felt homesick and moved back to Victoria. He found a job at the City Council cleaning the streets and worked for two years and nine months until his contract was over.
24. He had no further work for a while but then found employment with Linfox, however it was only a part-time job.
25. He was told that there may be work in Canberra so he left his family in Melbourne, travelled to Canberra and, in April 2012, commenced with Remondis, a company involved in recycling waste. It was initially a part-time job, three days a week, but then progressed to a full-time job.
26. On 18 February 2013, he said he was working with a loader, a Mr Tully, and was directed to remove plastic from a bale of metal. The plastic in such a bale renders it unclean which, no doubt, prejudices the recycling process.
27. Mr Malek said he tried to remove the plastic with his hands and then with tin snips but was unsuccessful. He then obtained a knife from a nearby box and tried to remove the plastic with that. It looked like a kitchen knife. He had to squat down to do what was required and says that the knife slipped and cut him in the left knee through his trousers.
28. He said that no-one else was present at the time and he did not report the injury because he was afraid that, if he did, he would lose his job. Without a witness, he felt he may not be believed.
29. He described to the learned Magistrate how the knife penetrated his knee and that the injury was on the left side of his left knee cap slightly above the top of the knee cap. He indicated the size of the laceration, which was said to be approximately 1cm across.
30. Mr Malek did not mention the injury to anyone at the time because he thought it was relatively minor and that it would heal. He was also concerned that if he mentioned the injury he might lose his job. He had previously been told that a person who injured their finger had been sacked because the person had injured themself at work.
31. On 21 February 2013, however, the knee was sufficiently painful, stopping him from working, that he reported it to his supervisor, Cameron Harris.
32. He told Mr Harris that he had hurt himself and, when Mr Harris asked him how that happened he said, being afraid of losing his job, that he had twisted his leg in the shower.
33. His knee was swollen and he showed it to Mr Harris. In his evidence Mr Malik said that it was not true that he had hurt his knee in the shower but that he said that because he did not want to lose his job.
34. He said that, when he stabbed himself, he lifted up his trousers and found that "in about a minute, blood was getting out of the wound". He said the skin was "a bit white" and, when he put pressure on it, blood started getting out of the wound. He said it was bleeding for about twenty minutes and then it stopped for a while. He went to work on the forklift but by the time he arrived home it had stopped bleeding though he felt he had a temperature and saw some fluid coming out of the cut. He said the next day there was no blood but there was just fluid "like mucus" coming out of the cut.
35. When he showed it to Mr Harris his knee, it was, by then, swollen. He also showed it to another employee there. A further employee was also present at the time.
36. Mr Harris looked at his knee and told him to go to a medical clinic and show a doctor. Mr Malek said that the cut was quite visible just above his knee which was quite swollen.
37. Mr Malek went to a clinic, Corporate Medical Options, where he had undergone a pre-employment medical examination, but there were no doctors available and he was told to come back a week later.
38. He decided to return to his family in Melbourne as he was feeling very sick and could not stand. He made an appointment with his former general practitioner in Melbourne.
39. He was driven to Ballarat where it appears his son lived, in a home apparently provided to Mr Malek by the government, and where he spent the night. He was then driven to Melbourne and saw his doctor who told him to have an x-ray taken. There was a delay in being able to have the x-ray, so he returned home to Ballarat.
40. By the time he arrived in Ballarat he had become quite feverish. His son came home, saw his condition and called an ambulance. Mr Malek was taken to Ballarat Hospital on or about 25 February 2013, admitted and underwent some surgery.
41. Some time later, he said to Mr Harris that he had been lying to him about the cause of the injury and told him that he had cut himself with the knife at work.
42. He said that Mr Harris told him not to tell "Richard", whom I understand to be the manager of the business. He said that Mr Harris told him "don't tell the truth to Richard because he might fire you".
43. He said that the conversation with Mr Harris took place about two months after the injury. Mr Malek said that he told Mr Harris the truth because he then trusted him.
44. Finally, he was concerned that he would not find any other work after his injury and so he made a claim under the Workers Compensation Act.
45. He also said that he was afraid of Mr Tully's reaction to his injuries because sometimes when he did something wrong Mr Tully would get angry.
46. Mr Malek agreed in cross-examination that, prior to his injury, he had had a conversation with Mr Tully about reporting injuries. He could not, however, write English and he was concerned that he had no witnesses to the injury.
47. He also agreed in cross-examination that, on 18 February 2013, he had been made a permanent employee.
48. He said that, when he was taken to hospital in Ballarat, he did not talk to the ambulance officers about the cause of the accident. He agreed that it was possible that his eldest son had passed on a history to the ambulance officers. He also agreed that he had told his family that he fell over and had an injury, although he did not tell them that the injury had occurred in the shower. He said, however, that he did not tell his family or anyone in Melbourne that he had an accident at work.
49. When it was put to him in cross-examination that he had no reason to fear that telling the truth to the ambulance officers would place his job in jeopardy he said that he was afraid that he would lose his job so that was why he did not tell anyone that the injury had happened at work. He said that the only reason he told lies was that he was afraid that he would lose his job. He felt that he would soon be better and could return to his employment.
50. He agreed that, by the time he was hospitalised in Ballarat, he was badly in pain and, it appears, he then admitted that he told them that he had fallen in the bathroom.
51. He also agreed that he had had an injury in 2006 for which he had received some compensation. He said, however, that a person who spoke Arabic had helped him to make that claim.
52. He said that he had not made the present claim because he was after money and that he would return to work in Melbourne if he could do so but the knee was currently preventing him from working.
53. He said that his knee still hurt and he could not bend it. He had concerns about his future but liked the work he had been doing and wanted to return to the job.
54. Under cross-examination, he was insistent that the only reason he told the story of falling over in the shower, and not saying that he had been injured at work, was that he was afraid of losing his job. He thought he would be better soon and be able to return to work. He was concerned for his family if he became unemployed. He denied that he had fallen in the shower or that that was how he had injured his knee.
55. The Claim Form signed by Mr Malek on 22 April 2013 was also tendered. It described the incident which led to his injury as follows:
The claimant was cleaning plant & equipment with a knife when the knife slipped and stabbed his left knee.
56. That form was sent under cover of a letter from Mr Malek's solicitors with a medical certificate dated 19 April 2013 from Dr Lao of The Canberra Hospital which described the matter as:
Open wound, left knee due to forklift accident. Infection. Left knee septic arthritis. Left femur osteomyelitis. MSSA.
57. Various medical reports were tendered on behalf of Mr Malek.
58. Dr Sarah Sparham, Registrar of the Infectious Diseases Unit of the Canberra Hospital, described his treatment as an in-patient in May 2013 for "septic arthritis of his right (sic) knee complicated by osteomyelitis following a penetrating knee injury at work in Ballarat".
59. She reviewed him on 3 June 2013 and had the impression that the infection had likely resolved but that his ongoing symptoms were due to stiffening of the joint and potentially some secondary osteoarthritis.
60. Dr Garth Eaton, Occupational Physician, examined Mr Malek for assessment and medical report. Dr Eaton set out, in his detailed report the history of Mr Malek's 2006 accident, his general background and his past educational and occupational history.
61. He set out the history of the injury consistently with the evidence given by Mr Malek. He reported that Mr Malek "was scared to tell his boss about the incident for fear of being sacked".
62. Dr Eaton set out the history of treatment, which I do not need to recount. This included investigations of the Ballarat Hospital. He concluded with the diagnosis of septic arthritis/osteomyelitis of the left knee. He noted that his physical findings were consistent with the history of the injury and Mr Malek's presentation.
63. He considered that further surgical procedures would not likely be necessary but that there would be further physiotherapy treatment required, though he was unsure whether further improvement in functional capacity was achievable. He concluded that Mr Malek was unfit for his pre-injury work and that his capacity for work generally had been "significantly compromised", as he would find even sedentary employment difficult. He was uncertain about his future prospects of regaining work capacity.
64. Dr Eaton concluded that Mr Malek was "genuinely significantly disabled" and "may be permanently affected with chronic left knee pain and dysfunction and ongoing effects of osteomyelitis".
65. Dr Graeme Griffith, Consultant Surgeon, also examined Mr Malek. The history taken by him was consistent with the evidence given by Mr Malek.
66. Dr Griffith considered that the delay in Mr Malek getting treatment for the injury resulted in "marked amplification of the significant complications which followed". He set out, in detail, the treatment provided.
67. Significantly, Dr Griffith found the relevant wound. In his report, he wrote:
The original stab wound approximately 2 cm in length on lateral aspect of the knee is visible, with a scar extending distally at the site of his arthrotony for a further 5 cm. Both appear well healed, but exquisitely tender...
68. He noted that Mr Malek had a persisting swelling of his left knee, making walking difficult and giving him a left sided limp and lurching unstable gait, requiring the use of a crutch. There was a functional shortening of the leg. Pain was the main problem. His daily living activities were severely restricted.
69. Dr Griffith found that the injuries and disabilities were "undoubtedly" consistent with the injury and its cause as described by Mr Malek. He diagnosed a severe septic arthritis at the left knee, adding that it remained symptomatic. He also diagnosed severe diffuse synovitis, "query low grade osteomyelitis", severe persisting left knee arthralgia and severe compromised mobility. He considered Mr Malek had a chronic adjustment disorder with elements of depression and anxiety.
70. He expressed great concern that the injury remained severely symptomatic, partly due to neglect and chronic lack of expert supervision and partly because of Mr Malek's relative unsophistication, not attending hospital on a sufficiently regular basis. He concluded that the injuries had stabilised "but at an unacceptable level". He also concluded that Mr Malek was totally incapacitated for his pre-injury work and generally was unemployable. Any improvement would depend on resolution of his symptoms which was, he opined, "far from certain" but would, in any event, take "months rather than weeks". His disabilities would also profoundly disable any activity requiring locomotion and physical exertion or strenuous activity. He expressed an "extremely guarded" prognosis.
71. The medical records of the Ginninderra Medical Centre were produced on subpoena and tendered but do not require specific reference in this appeal, other than in one respect, as follows.
72. The notes include the Discharge Summary from Mr Malek's hospitalisation at Ballarat. In the summary was a report of an MRI scan of Mr Malek's left knee undertaken by Dr Alex Meakin on 5 March 2013 when Mr Malek was still in Ballarat Hospital. Dr Meakin reported:
At the lateral edge of the lateral trochlear ridge, there is the impression of a small chondral defect and a small subcortical hyperintense lesion with focal bone marrow edema that is more intense than elsewhere. This appearance raises the possibility of a traumatic lesion and possibly a penetrating injury.
73. None of the medical experts were subject to cross-examination.
74. An employee of Remondis in its administration, Kristin Amor, gave evidence. The essence of her evidence was as follows:
I think on the 21st of February this year you were in the office at Remondis when Mr Malek came in? --- Yes.
And what did you observe on that occasion? --- He came in to speak to Cameron who was his supervisor, and indicated that he had slipped in the shower the previous night and that his knee had swollen up. And the conversation continued and he then raised his trouser to show the swelling in the knee, and it had swollen up considerably.
Did you have an opportunity to look at the swelling? --- From where I sat it's just across, there's like maybe a metre and a half between the desks so I did look around and you could see that it was visibly swollen.
Could you see anything else on the knee other that swelling? --- No, it was just quite swollen.
Did you see any sign of a cut or laceration? --- Not that I noticed.
Did you see any sign of blood or weeping on the knee? --- No.
75. In cross-examination, she said that she got up from her chair and "went round the corner and had a look", but did not touch anything. She was, she said, about a metre to half a metre away from Mr Malek's knee.
76. The operations manager of Remondis, Jamie Walker, also gave evidence. He, too, was in the office when Mr Malek reported his injured knee to Mr Harris.
77. He noted that Mr Malek's knee was "extremely enlarged" but he did not have an opportunity to examine it. He was between a metre and a metre and a half away. He did not see any sign of a cut or laceration, or any sign of blood, a scab or any weeping or fluid seepage.
78. Cameron Harris, Materials Recycling Facility Supervisor for Remondis, was the next witness. He gave evidence of Mr Malek reporting his incapacity to work. He said:
My first words were, 'Did you do it at work?' and he said, 'No I did it at home, I fell over in the shower'.
79. Mr Harris said he was relatively close when he looked at the knee; the transcript records that it was "from here to these two Bibles in front of me" which was said to be a metre or slightly less.
80. He saw that the knee was quite swollen but he saw no cut, laceration, blood or weeping. He then suggested Mr Malek see a doctor and Mr Malek left.
81. Mr Harris said that the next time he had contact with Mr Malek was when Mr Malek was on his way to Melbourne. Mr Malek then rang him a week or so later to say that he had been in the Ballarat Hospital for an operation on his knee. There was, at that stage, no discussion about whether the accident was work related.
82. He said he tried telephoning Mr Malek a few times and then Mr Malek rang him; Mr Malek was worried about his job and whether he would lose it, but Mr Harris told him not to worry about that because he wanted him to recover and get back to work.
83. Mr Harris said that he next saw a letter, though he could not say who wrote the letter, stating that the injury was caused by a tine on a forklift vehicle. This seems to refer to the medical certificate attached to the Claim form sent by Mr Malek's solicitors, referred to above (at [56]), though it did not refer to such a cause. He denied having a conversation with Mr Malek where Mr Malek said that he had cut himself with a knife. He also denied telling Mr Malek that if he reported the injury to "Richard", he would be sacked. He said the only reference made to Mr Malek about his job was that he should not worry as the company would hold it for him and cover it for him.
84. In cross-examination, Mr Harris implicitly agreed that Mr Malek was genuinely afraid of losing his job but said that he reassured Mr Malek that he would not lose his job over the incident. He agreed that he asked on a number of occasions how the injury occurred and Mr Malek told him that he fell in the shower which, he said, he thought "a little bit out of the ordinary".
85. Mr Harris agreed that, when speaking on the phone, Mr Malek was very hard to understand. He denied being told in late March 2013 by Mr Malek that he had cut his knee with a knife at work. He also denied that he told Mr Malek that if he reported the incident to "Richard" he would be sacked. Mr Harris said that "Richard" was the ACT Manager of Remondis.
86. Remondis did not call Mr Tully to give evidence, nor was any explanation provided as to why he was not called.
87. Mr A Muller, counsel for Remondis, then tendered the Ambulance Report, clinical notes from the Ballarat Hospital and a medical report.
88. The Ambulance Report stated that the main problem identified to them was an injury with pain in Mr Malek's left knee. It stated as the history that Mr Malek fell in the shower six days before.
89. The notes from the Ballarat Hospital initially described the history merely as "Injury to Ⓛ knee 6/7 ago." They recorded a provisional diagnosis of a septic left knee. Later they referred to a report that Mr Malek injured his knee when he fell down. The notes also recorded that Mr Malek underwent an arthroscopic "wash out" on the date of his admission and then on three further occasions.
90. Dr Peter Stephenson, Consultant Physician, examined Mr Malek for the insurers of Remondis. He recorded a history consistent with Mr Malek's evidence. The recorded treatment was also consistent with the other evidence. He recorded that Mr Malek said that he still had a stiff and painful knee and could not walk far. He found the knee to be stiff and swollen with wasted quadriceps and surgical scarring. He said there was "no clear non-surgical scar of a knife wound".
91. Dr Stephenson seemed to agree with the diagnosis of septic arthritis with methicillin-sensitive staphylococcus aureus. He concluded that the condition would leave "certain sequelae" and that Mr Malek was left with residual damage. There was still wasting and stiffness of the knee.
92. He opined that Mr Malek would be fit for sedentary duties but that he does not have the required language skills. He would be unfit for work where he would need to be on his feet for most of the day and would seem to be unfit for another three months at least.
93. As to the cause of the injury, Dr Stephenson's opinion should be set out in full as it is significant. He wrote:
Causation is not clear because the original injury is not documented. Mr Malek gave a plausible history. The infection was diagnosed four or five days later alleged injury (sic) which is medically consistent with the inoculation of a staphylococcus around then. The organism is a staphylococcus which is a common skin organism and can be inoculated in that way.
Septic arthritis can be acquired by direct inoculation in stab wounds; however that is fairly unusual. Blood-borne spread is also possible.
The notes on the first hospitalisation however do not clearly confirm Mr Malek's account. Infection is ascribed to an accident but that is described as a twisting fall at home, and seems be an unlikely cause.
I cannot totally confirm causation without some confirmation of Mr Malek's account. Most skin lacerations around the knee would not penetrate the joint but obviously a deep laceration could do so. Causation is possible but not unequivocal. Some confirmation that Mr Malek had a penetrating injury would be of assistance. He did mention an attempt to see a doctor in Canberra but it seemed he may not have been successful.
94. At the conclusion of submissions, the Magistrate adjourned for some three hours and then delivered an ex tempore decision.
95. Her Honour described Mr Malek's history and the earlier accident. Her Honour then set out the evidence Mr Malek gave of how the injury to his knee occurred and the subsequent events, including his allegedly incorrect explanation of the cause, namely telling Mr Harris that he had slipped in the shower. Her Honour noted that Mr Malek said that the wound was still visible when he showed Mr Harris his knee but that Ms Amos, Mr Walker and Mr Harris said that they did not see it.
96. Her Honour also recounted the following events in Melbourne and Ballarat and the treatment he received in the Ballarat Hospital.
97. Her Honour noted the report of Dr Meakin and the report of Dr Lao. Her Honour then referred to each of the medical reports, noting that both Dr Eaton and Dr Griffith had considered their physical examinations were consistent with the history given. Her Honour also summarised Dr Stephenson's report and his comments on the cause of the injury. Her Honour indicated that she was unsure, in that context, whether the centimetre deep wound of which Mr Malek gave evidence would be regarded as a deep laceration. Her Honour also noted that Dr Stephenson referred to an alternative explanation, namely a blood-borne infection.
98. Her Honour then found that Mr Malek suffered a septic arthritis "following a golden staph infection which may have led to an osteomyelitis". Her Honour found that, if Mr Malek's version was accepted, he "appears" to have suffered a compensable injury. If the knife laceration had resulted in the introduction of the infection then his employment would have substantially contributed to the injury.
99. Her Honour concluded that the issue was, therefore, a purely factual one and that Mr Malek bore the onus of satisfying the court that he had an entitlement to compensation.
100. Her Honour noted that Mr Malek did not suggest to anyone, including his family, that the injury had occurred at work until 19 April 2013, when he obtained a medical certificate for the claim. Her Honour concluded that the "initial reports" did not "clearly mirror" the detail provided in his statement of 15 May 2013. Her Honour noted that the incident was described in the initial medical report as "a forklift accident, not a knife incident".
101. Her Honour then referred to what she said were some further inconsistencies in his evidence as follows:
• Mr Malek said that when he spoke to Mr Harris on 21 February 2013, the injury was still visible, though no-one present saw it. Her Honour accepted that this may have been explicable by the passage of time and lack of redness against his dark skin, though her Honour thought it unlikely that a one centimetre injury would not be observable a mere three days after it was sustained.
• Mr Malek said that, when he first saw the injury, it was white and when he put pressure on it, blood came out, but her Honour considered that it was unlikely that a one centimetre deep wound would not immediately bleed.
• Mr Malek said he lied about the cause of the injury because he was afraid of being sacked and that he was told by Mr Harris that if the manager found out he would lose his job. Mr Harris gave quite contrary evidence, her Honour noting that there was no motivation for Mr Harris to lie but that there was a motivation for Mr Malek to lie, namely that he would be better off in receipt of workers compensation payments than from Centrelink payments.
• Mr Malek had not told his family about how he said the injury actually occurred but that there was no reason to suppose that telling his family would impact on his employment.
• When severely ill, Mr Malek told ambulance officers and staff at the Ballarat Hospital the alleged fictional account when there was no reason to suggest that his employer would become aware of that and where his immediate treatment was vital.
• Mr Malek was "a fairly uneducated man" and has language difficulties but there is a "significant difference" between a fall in the shower and a stab with a knife, not explicable by language difficulties.
102. Her Honour also referred to what she said was "a reference to Mr Malek having suffered an injured finger" but neither I nor either counsel could find such a reference. It may have been an error based upon the information that Mr Malek said he was given that another employee had his employment terminated when that other person injured a finger, as I mention above (at [30]). Insofar as this is an error, it does not seem to me to be an egregious one, but perhaps indicates some negative view that her Honour, unfairly, took of Mr Malek, in this case, not properly based on the evidence.
103. Her Honour concluded that the explanation of the injury caused by a knife was a concoction, formed by Mr Malek when he became aware that he was likely to be off work for a significant period of time. Her Honour concluded that the medical evidence did not assist Mr Malek, which, though said to be consistent with the history, was not compared by any of them, apart from Dr Stephenson, with any other possible cause. Only Dr Stephenson did such a comparison and he expressed the unchallenged view that there was a possible cause of blood borne infection, apart from the others.
104. Accordingly, the Magistrate dismissed the application.
105. Mr Malek filed a Notice of Appeal on 3 December 2013. The grounds of the appeal were as follows:
(a) The learned Magistrate erred in finding that the appellant sustained an injury to his left knee by means other than during the course of his employment on 18 February 2013.
(b) The learned Magistrate erred in rejecting the medical evidence which supported the appellant's allegation that he injured himself during the course of his employment on 18 February 2013.
(c) The learned Magistrate erred in finding that the appellant's evidence that his reasons for initially lying about the circumstances of the injury, namely that he thought he would lose his job, were not substantiated.
(d) The learned Magistrate erred in finding that the appellant had financial motivation for 'concocting' a story to obtain workers compensation benefits in the absence of any evidence that the plaintiff would be in a better financial position were he to receive workers compensation benefits.
(e) The learned Magistrate erred in finding that the appellant 'concocted' his story in relation to the work injury in circumstances where he was not cross-examined as to a large number of salient facts surrounding the incident.
(f) The learned Magistrate erred in failing to accept the appellant's evidence that his fear of losing his job was heightened by the fact that he had been advised that a worker employed by the respondent had been dismissed from his employment following a work accident when there was no challenge to the appellant's evidence in this regard.
(g) The learned Magistrate erred in failing to find that the evidence of the three witnesses called by the respondent were consistent with and not mutually exclusive of the evidence of the appellant and that the evidence showed that the appellant had a significant left knee infection at least by 21 February 2013.
(h) The learned Magistrate erred in considering that the appellant may have injured his knee as a result of a forklift accident in circumstances where he was not cross-examined as to that possibility. Further, injury as a result of a forklift accident used in the course of his employment with the respondent would entitle the appellant to an award for workers compensation.
(i) The learned Magistrate erred in failing to apply the appropriate standard of proof when finding that the appellant 'concocted' his story in relation to the work accident.
(j) The learned Magistrate erred in equating the opinion of Dr Stephenson that the introduction of the infection by way stab wound was 'unusual' with his opinion that the introduction of the infection by way of a twisting fall was 'unlikely'
106. Despite the extent of the grounds of appeal, there was really only one issue in the appeal: what caused the undoubted injury to Mr Malek's knee?
107. There were two aspects to this, however, namely what was to be made of the statements made by Mr Malek of falling over in the shower and what did the medical evidence show. It is convenient to deal with these separately.
108. Mr Malek said that he lied about how he hurt his knee. He said that he told people initially that he hurt his knee because he fell over in the shower, twisting it and that he told this lie because he was afraid that if he disclosed that the injury had happened at work, he would lose his job. He thought at the time that his knee would heal quickly and he could then return to work.
109. There seems no doubt that Mr Malek was concerned about losing his job. He gave sworn evidence about that. This was consistent with what he said to his lawyers, his doctors and, indeed, to Mr Harris. It was not suggested to Mr Malek in cross-examination that he was not actually afraid of losing his job, though it was suggested that he had no reason for that concern.
110. The circumstances, however, are relevant. Mr Malek was a refugee; he spoke inadequate English; he had been unemployed and sometimes, when employed, only part-time employed and so unable to care for his family for substantial periods of time since his arrival in Australia in 2006; he had had to travel and leave his family interstate to obtain employment. His cultural background was one of which there was no express evidence but where the court must be slow to assume that what would be expected of an Australian born person would be the same as what was expected of Mr Malek.
111. Mr Harris agreed that Mr Malek had expressed to him that he, Mr Malek, was concerned about losing his job. Mr Harris reassured him that there was no danger of this, but it cannot necessarily be assumed that Mr Malek would be satisfied with this. For example, he had been told that a person who had injured his finger had lost his job and he was not cross-examined about that, nor was it suggested that it was not true. Given the reliance of the Magistrate on Mr Harris' evidence, it may be accepted that Mr Malek was truly concerned about the security of his job.
112. Reliance was placed on what were said to be inconsistencies in his evidence. Thus, he told his family that he had hurt his knee at home, though he seemed a little unsure whether he said that he fell over in the shower. It was also suggested he had told the ambulance officers in Ballarat and the staff at the hospital this, though he appeared to deny that and to suggest that his son may have told them this.
113. This was challenged on the basis that there would be no likelihood that his family, the Ballarat ambulance officers or hospital staff would be in a position to have put his job at risk. That is certainly a rational position but people who have experienced difficulties such as Mr Malek, a refugee who had experienced significant periods of unemployment, even when he had to leave his family to find work, may not always approach such matters entirely rationally.
114. Indeed, it was suggested that he was so sick in Ballarat that he would be more likely to tell the truth. It seems to me, however, that it is more likely that a seriously ill person is less likely to be rational and to be more likely to stick to a pre-determined story which involves less mental effort.
115. Thus, I am not satisfied that the fact that Mr Malek told his family, and possibly the ambulance officers and medical staff in Ballarat, that he was injured in a fall was necessarily inconsistent with his explanation that he told this lie because he was afraid for the security of his employment.
116. That, of course, does not prove that he was injured at work and the Magistrate was not entitled to reject his explanation if the evidence justified that.
117. It is relevant, however, that, in cross-examination, it was never put to Mr Malek that he had in fact injured himself when he fell in the shower. Indeed, no alternative explanation for the cause of the injury was put to him at all.
118. The cross-examination did come close to this. He was asked whether he told Mr Harris that he had injured himself in the shower at home because it was true and he denied that. It was not then put to him that the explanation he gave to Mr Harris was true. It was later suggested to him that he did not say that he had injured himself at work until two months after his knee became swollen because it was not true, he denied that and positively asserted that he was injured at work.
119. Of course, it is not incumbent on Remondis to prove how the injury did occur but the issue was made relevant because of Dr Stephenson's speculation about possible causes.
120. The Magistrate was entitled to reject Mr Malek's evidence, particularly if based on demeanour. I am, however, mindful of the remarks of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy at [30]-[31] where they said:
... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.
121. Her Honour, however, did not seem to rely on demeanour so much as an assessment of the evidence and its inconsistency with other evidence. She clearly preferred the evidence of Mr Harris to that of Mr Malek and was entitled to do so. That, however, did not require her to reject Mr Malek's evidence where it was corroborated by other evidence, including that of Mr Harris.
122. Accordingly, though accepting that the evidence of Mr Harris is to be preferred over the evidence of Mr Malek, I, as the appeal court, am in as good a position to draw inferences from proved facts, as was her Honour.
123. I also take into account that when Mr Malek was taken through an induction program, he was told that if he injured himself he should refer to any witnesses to say what had happened. He was not explicitly told that he had to have witnesses if he was injured at work but he was concerned that he did not have any witnesses and so he may not be believed. The absence of witnesses clearly played on his mind as a comment in his evidence, to which I refer below (at [139]) makes clear.
124. Remondis relied on the fact that Mr Malek had received compensation for an injury in May 2006. Though this did not expressly feature in the reasons of the Magistrate, it should briefly be mentioned. Mr Malek said that he did not know he was able to receive compensation for an injury at work. The earlier compensation, it appeared to be submitted, showed this was not so. That earlier injury, however, was a car accident. That is, of course, a common law claim and not a worker's compensation claim. The two are, relevantly, different. I do not consider that it can be fairly assumed that because Mr Malek had recovered damages for injury sustained when a car collided with him that he would thereby know that he would recover compensation, of a somewhat different kind, for a workplace injury.
125. Finally, it was submitted by counsel for Remondis that Mr Malek had a financial motivation for his claim. Counsel submitted:
He says that he is not interested in money. Your Honour, that is simply implausible, in my submission. He's receiving Centrelink benefits. The only plausible explanation for pursuing this claim in circumstances where he has received continuing medical treatment via the public health system and he is receiving Centrelink benefits, must be a financial basis.
126. Her Honour appears to have adopted this submission, as noted above (at [101]).
127. There are, however, some problems with this finding, if that is what it is. In the first place, this was not put to Mr Malek. The closest the cross-examination came was as follows:
See, what I am suggesting to you is that you have made up this story about cutting yourself at work so that you can get compensation for all the time you have had off work? --- I am not after money at all. I just want - if I feel better right now I will go to work and that is - I am not after money. But if I can do some work at Melbourne, I will do it. But the problem is, I can't perform any work.
See, what I am suggesting to you is that the reason you came up with this story about cutting yourself at work was so that you could get some compensation for all the time you have had away from work? --- What I am concerned about is work. If that was the reason, if money was the reason I would have claimed on the same day and got some witnesses. But I did not want - I was not aware of money issues, I just want to work. If I can work right now, I will just go out and work.
128. While those are fair questions, they make no reference to Centrelink or, in particular, to the comparative payments as between workers compensation payments and Centrelink payments.
129. While there was evidence (namely a Centrelink Medical Certificate form) capable of founding an inference that Mr Malek had applied for Centrelink benefits, there was no evidence as to what benefits he was receiving or had received. I accept that it may be unlikely that any Centrelink benefits available to Mr Malek would equal the claim, in his Application for Arbitration, for $1150 per week gross, but the fact is that there was no evidence of this and, if this were to be a matter of judicial notice, then there was no compliance with s 144 of the Evidence Act 2011 (ACT) which would be required as a matter of fairness. That also applies to the Magistrate's speculation about how a knife wound to the knee would bleed.
130. Thus, it seems to me that the fact that Mr Malek lied about the cause of his knee injury does not require a finding that he was not injured at work. Of course, he does not thereby discharge the onus of showing that he was so injured, though his evidence of that is available to support such a finding. That, in this case, seems to me to depend on the medical evidence to which I will now turn.
131. There was, however, no issue about the fact that Mr Malek had suffered septic arthritis in his knee. The only question was as to how it came that he contracted that.
132. There were two aspects of causation which must be addressed.
133. When Mr Malek reported to Mr Harris that he was unable to work on 21 February 2013, there were, it was common ground, three people in the office where he reported it. Mr Malek said that when he reported to Mr Harris, he showed his knee to Mr Harris. He said that, although he had put a Band Aid on it, it was not covered by a Band Aid when he showed it to Mr Harris, but "the cut at that time was closed". He said there was a mark.
134. All three of the people, Ms Amor, Mr Walker and Mr Harris were asked whether they could see a cut or a laceration. They said they did not see a cut or laceration. They were all fairly close to the knee, between less than a metre and a metre and a half away. Mr Malek said he did not point out the cut.
135. Two things are to be noted about this evidence. In the first place, these three witnesses were asked whether they saw a cut or laceration, not whether they saw any mark. They were also not asked whether there was a mark there or could have been which they did not see. It must be recalled that Mr Malek had dark skin, as her Honour noted.
136. Secondly, they had been told of a fall in the shower and so would not have been looking for a cut, laceration or, indeed, a mark.
137. This is certainly relevant evidence and, without more, would not have allowed Mr Malek, in the circumstances, to discharge the onus on him to show how the injury to his knee occurred. It does not, however, prove that there was no cut on Mr Malek's knee.
138. Finally, it is relevant that Mr Tully was not called to give evidence and no explanation was given as to why he was not available. That permitted the Court to infer that any evidence he could give would not assist Remondis and that the Court could more confidently rely on the evidence of Mr Malek about the matters of which Mr Tully may have given evidence. See Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
139. There are two such matters. The first is that Mr Malek, as he said, was asked to remove some plastic from a bale which was part of his duty. This gives a supportive context for the explanation Mr Malek gave for the incident which he says actually caused the injury to his knee. The second is the statement, said by Mr Malek to have been made, that, if injured, Mr Malek should set out any witnesses to the incident causing the injury. The absence of witnesses was, of course, part of the concerns Mr Malek expressed in his evidence that he had about reporting the incident given that he thought, at the time, that it would shortly heal. This is not insignificant.
140. Those matters would not discharge the onus on Mr Malek but would show a relevant level of consistency with this evidence given by Mr Malek about the circumstances of the work injury he alleges and his failure to report it such as to strengthen his evidence.
141. All the reporting doctors refer to the issue of causation. Taken at their highest, all their opinions could be said to be at least consistent with Mr Malek's evidence of how the injury was sustained.
142. In order to evaluate that evidence, it is necessary to consider it quite carefully.
143. Insofar as there is any difference between the medical evidence, it has to be said that it is a pity that none of the doctors were cross-examined. Ordinarily, unchallenged expert evidence should be accepted unless there are facts and circumstances that displace or throw doubt on it: Taylor v The Queen (1978) 45 FLR 343 at 364; Samuels v Flavel [1970] SASR 256 at 258. The leading of contrary expert evidence has, however, been held to constitute a challenge to other expert evidence in Morgan v Attorney-General (Qld) (1986) 24 A Crim R 342 at 360.
144. It is, however, not permissible simply to pick and choose between experts who are in conflict; it is necessary to have a rational basis for deciding which of the expert evidence the court should accept. See, for example, Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 559. That is a good reason why cross-examination can assist a court to decide whether a challenge to expert evidence has been made out.
145. The strongest evidence for Mr Malek came from the report of Dr Griffith, who was a consultant surgeon and who, one might expect, would be particularly knowledgeable about incisions in the skin of various kinds. His unequivocal evidence is set out above (at [67]). He first saw Mr Malek on 31 July 2013.
146. It was suggested that this was a description of a scar at a different place to that shown to the court during the hearing. That does not seem correct; what was described to the court was "the top of the left side of the knee cap" which seems to me to be consistent with the description in Dr Griffith's Report.
147. This evidence is supported by the MRI Report of Dr Meakin cited above (at [72]) which is, at the very least, supportive of a knife wound penetrating the knee joint.
148. This is significant for the evidence suggests that Mr Malek had not given a history of a penetrating wound to the Ballarat Hospital staff who may, therefore, not be particularly looking for such a cause.
149. Dr Eaton's report is less helpful. He is an Occupational Physician. He described a 14cm curved scar on Mr Malek's left knee. This is larger than the scars seen by Dr Griffith. Significantly, Dr Eaton does refer to the MRI Report from Dr Meakin. He concludes that the injuries and disabilities are consistent with the incident as described. Given these matters, it cannot be said that he has simply accepted Mr Malek's account at face value. Dr Eaton's report is, thus, more than just consistent with Mr Malek's evidence and certainly provides no basis for rejecting the opinion of Dr Griffith, but rather somewhat supportive.
150. Dr Sparham, Registrar in Infectious Diseases, refers to the septic arthritis as following "a penetrating knee injury". It appears that she must have examined Mr Malek's knee (though she refers to the wrong knee), though that is only an inference that can be drawn. While she was, presumably, simply reporting to Mr Malek's general practitioner, her opinion, in the circumstances, is at the very least consistent with the evidence of Mr Malek and provides no basis for rejecting the opinion of Dr Griffith.
151. The notes from the Ginninderra Medical Centre relate to an examination of Mr Malek on 29 May 2013. They record a scar on his left knee. While that is possibly the arthrotony on both the claimed laceration and the arthrotony, it is again at the least consistent with Mr Malek's evidence and provides no basis for rejecting the opinion of Dr Griffith.
152. On this material, there is no basis for rejecting the evidence of Dr Griffith which is strongly corroborative of the evidence of Mr Malek. Indeed, it supports a finding on the balance of probabilities that his injury was caused by a laceration.
153. I turn then to the report of Dr Stephenson. He clearly has some concerns about causation. He considers three causes: laceration, a twisting accident (falling over in the shower) and blood borne spread.
154. Dr Stephenson is a Consultant Physician, not a surgeon. He found, on examination, "surgical scarring but no clear non-surgical scar of a knife wound". Taking his words at face value, especially in the absence of any oral evidence, including cross-examination, he does not say that there was no non-surgical scarring, only that it was not, to him, a clear one. That may throw some doubt on the existence of a non-surgical scar, but is not a positive finding that there was not one.
155. This is confirmed when his opinion is considered. He found, as I noted above (at [93]), that "Mr Malek gave a plausible history". If there was no scar at all, it is difficult to see how he could have come to that conclusion. He did not, of course, have Dr Griffith's report, for he saw Mr Malek earlier, on 25 July 2013. He appears to have had the same access to the Ballarat Hospital records for he noted that Mr Malek was admitted there "with swelling, redness and fever after laceration said to be sustained at work one week prior". That appears to be a report from Mr Malek, not a reference to the records of the Ballarat Hospital which did not have that history. He does not, however, refer to Dr Meakin's Report of the MRI taken there.
156. While Dr Stephenson considers the fall in the shower as a cause, he dismisses that as "unlikely". It seems to me that this can be rejected as a challenge to the report by Dr Griffith.
157. That leaves the third possibility of blood borne spread. Unfortunately, Dr Stephenson does not explain how that mechanism would apply to the facts of this case. More importantly, perhaps, there was no evidence either from Dr Stephenson or in cross-examination from Mr Malek to show facts that would support such causation. Dr Stephenson merely says that it is possible.
158. In my view, the absence of such further evidence means that this speculation is not a sufficient basis to suggest that the direct evidence of Dr Griffith should be rejected.
159. Added to this is Dr Stephenson's comment about the penetration of the joint when he is clearly concerned about the depth of penetration. He finds that deeper penetration is possible. Dr Meakin's report confirms the likelihood of such deeper penetration. This must raise the findings of Dr Stephenson that penetration is the cause of the injury from a mere possibility to a likelihood. Taken with the findings of Dr Griffith, this is sufficient to find that this was the mechanism.
160. It would be speculative to consider what Dr Stephenson would say had he had access to the reports of Dr Griffith and Dr Meakin and were he able to comment on them. That he did not have them seems to me to mean that he did not have enough information to give a final opinion upon which it would be safe to make a finding.
161. I note that the Magistrate, while noting the "possible" cause as the blood borne spread, makes no finding as to why that should be preferred as an answer to the explicit findings of Dr Griffith. In particular, the Magistrate refers to Dr Griffith's report but does not mention his specific finding, much less explain why it should be rejected. That is a failure to take into account a relevant consideration. Her Honour gives no reasons why the reports of Dr Griffith and Dr Meakin should be rejected.
162. The only other matter is the report of Dr Lao, which was a medical certificate referring to a "forklift accident". Her Honour pointed out that this did not refer to "a knife incident". The fact is, however, that Mr Malek was, at the time, working on bales that he lifts with a forklift as noted above (at [34]). Given the language defects of Mr Malek, I do not consider that such a comment, on that kind of form, is sufficiently cogent to say that it was not referring to the incident that Mr Malek described. It was never suggested to Mr Malek that he gave a different version of the incident to Dr Lao. Nor could the comment really be read, as Mr Harris did, as an injury caused by one of the forklift's tines.
163. I am satisfied that the medical evidence is strongly corroborative of the evidence given by Mr Malek and that the conclusions of the Magistrate were in error and not based on a proper evaluation of all the evidence, having regard to all relevant considerations.
164. In my view, the order of the Magistrates Court must be set aside. The parties, however, did not really address the orders that should be made.
165. I shall, accordingly, hear the parties as to the further orders that should be made following my findings.
I certify that the preceding one hundred and sixty-five [165] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
Malek
Remondis Australia Pty Limited [2015] ACTSC 135
(1984) 153 CLR 521
(2003) 214 CLR 118
(1959) 101 CLR 298
(1978) 45 FLR 343
(1908) 7 CLR 549
(2000) 203 CLR 194
(1979) 142 CLR 531
(2008) 248 ALR 240