Islam v Linfox Australia Pty Ltd (NSWCA 2024)

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Key Takeaways

• The worker lost his claim against his employer and a delivery contractor as the primary judge rejected his evidence with respect to past complaints and conversations with key witnesses.
• The worker failed to properly articulate as against his employer the nature of its alleged failure to monitor his manner of work.
• The Court of Appeal upheld the primary judge’s decision.

Brief Facts

The worker was employed on a casual basis by Local Logistics Pty Ltd (the employer) as a delivery driver. The employer was a transport company that provided trucks and drivers to clients. The worker was assigned to Linfox Australia Pty Ltd (Linfox), who supplied home delivery services for Woolworths supermarkets.

On 13 November 2017 the worker attended a house, and was required to perform a large delivery (16 boxes) by walking up a 75-step stairway 11 times. It was alleged by the worker that he was directed by the Linfox supervisor to perform the delivery, despite his protests that there was a risk of injury. This allegation was contested.

The worker sued Linfox and the employer in the NSWDC seeking damages with respect to the delivery. The worker also asserted that his back injury was due to the nature and conditions of his work from 2 July 2016 to 13 November 2017. The defendants denied the claim, and cross-claimed against each other.

Evidence in dispute

In dispute was the worker’s alleged conversations with his Linfox supervisor (Mr Carvajal), and the employer’s director (Mr Kollaris). The worker asserted that when he arrived at the property and observed the stairs, he called Mr Carvajal and complained that he was unable to perform the delivery as he was worried that he would hurt himself. A photograph was sent by the worker to Mr Carvajal, who directed the worker to perform the deliver but to ‘do it slowly’. After the delivery was completed, the worker stated that he felt significant back pain and called Mr Kollaris, who took him to the Linfox office to speak with Mr Carvajal. It was alleged that there was an argument between the parties. The worker also alleged that he had spoken to Mr Kollaris prior to the incident regarding ongoing back pain arising from his work.

In contrast, Mr Carvajal’s evidence was that the worker only said to him that he could not do the delivery because there were too many stairs. After he saw the worker’s photograph, he instructed him to do the delivery in a safe manner, take his time, and carry the bags in his hands, as opposed to using the tote baskets. Mr Carvajal denied that the worker told him that he was worried that he would hurt himself, and denied that he was told of the worker’s back pain issues. He also denied that he argued with the worker.

Mr Kollaris denied having been present when the worker returned from his shift to speak with Mr Carvajal. He also denied the worker’s allegations that prior to the delivery he informed him of ongoing back issues due to work.

Judgment

District Court decision

The District Court primary judge (Judge SJ Gibb) found in favour of the defendants, rejecting the worker’s evidence and credibility, and the liability findings of his ergonomic experts. Judge Gibb also rejected the bulk of the findings of the worker’s joint ergonomic experts in their report, which found that Linfox and the employer failed to exercise reasonable care for the safety of the worker.

The worker appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal rejected all 6 grounds of the worker’s appeal.

A significant factor in the Court of Appeal upholding Judge Gibb’s evidence findings was that the worker was required by Linfox to provide a ‘Pre-Start Check – Fit for Duty’ form prior to his shift, in which the worker confirmed that he was not suffering from any medical conditions that would affect his ability to complete the work tasks.

There was also evidence that the worker did not listen to the opinion of his own doctor in December 2017, who advised him not to continue with the work. As such, the Court held that it was unlikely that the worker would have told the employer that he was suffering back pain, which would have alerted Mr Kollaris to the need to monitor the worker’s condition or to modify his work. The Court also upheld Judge Gibbs’ preferences for Mr Carvajal’s evidence over the worker’s evidence with respect to the content of the conversation they had immediately before the delivery.

In relation to the worker’s joint expert report findings on liability, the Court held that whilst the worker’s expert identified suitable precautions that may have been taken to avoid injury (for example providing suitable lifting straps, or an offsider assistant), it was open to Judge Gibb to reject those liability findings on the basis of the accepted evidence that Linfox and the employer were not made aware of the worker’s prior back issues, or the nature of the delivery site.

Implications

Whilst the worker’s failure to establish liability was largely due to Judge Gibb’s adverse findings on his credibility, this case also highlights the importance of scrutinising expert liability evidence to ascertain if there is an evidentiary basis for the expert’s liability findings.

The evidence from the employer’s ‘Pre-Start Check’ form was also a significant factor in the determination of the worker’s credibility, and serves as an important reminder that steps should be taken early in the defence of any claim to obtain all relevant material from the employer’s records.