Wrapped up in lies – credibility unravels in workplace injury claimNov 2022 | Insurance
A plaintiff’s history of forging medical certificates and university documentation has caught up with him in the New South Wales District Court, with credibility issues resulting in his claim for a workplace injury being successfully defended by his host employer.
District Court Judge P Taylor SC handed down his decision in Yousif v Coles Supermarkets Australia Pty Ltd1 on 25 October 2022, finding negligence in an aspect of the system of work, but concluding that the plaintiff’s evidence was not credible, and his alleged losses were otherwise not made out.
The plaintiff, Andrew Yousif (Yousif) brought a claim for damages against the defendant, Coles Supermarkets Australia Ltd (Coles) for a back injury he alleged to have suffered while wrapping a pallet of goods at work in August 2018.
Yousif was employed by a labour hire company to stack and wrap pallets in a large warehouse operation at a Coles Distribution Centre. Coles denied that Yousif was injured at work, that it was negligent or that Yousif suffered any damage.
Coles did not dispute that its duty of care to Yousif was akin that of an employee.
This case turned on Yousif’s credit. It was critical in determining whether his version of events could be accepted by the court in circumstances where there were no independent witnesses. Coles put up a forceful challenge to the credit of Yousif’s allegations on four grounds:
- His engineering degree work experience;
- Medical certificates;
- The impact of the injury on his university studies; and
- His tax affair.
In 2020, Yousif was studying engineering. As part of his course, he was required to complete 12 weeks of full-time work in the field. At trial, Yousif maintained that he had completed this work as outlined in a diary which was signed off by his supervisor, but ultimately had to admit that was untrue.
The Court found Yousif had created a fraudulent document which had falsely purported to be signed off by his supervisor who Yousif had never actually met. In addition, Yousif was found to have submitted a reference letter to the university which contained false statements along with a nine-page report regarding his experience at the firm including a fictional account of the work done and experience gained.
When conceding that the documents were false, Yousif alleged he had to fabricate his work experience because of the effects of his back injury. When questioned why he doctored the material rather than speaking to the university about issues he anticipated he would face in carrying out the work experience program, he admitted he had not thought to do so.
Contrary to Yousif’s explanation, the Court found his injury and medical condition did not prevent him going to an office or site, although noted it may have precluded him from some physical activities. His Honour found Yousif’s explanation for his dishonesty was not satisfactory.
Coles also led evidence that was ultimately accepted by the Court that Yousif had submitted altered and false medical certificates which excused him from university commitments.
Yousif said he was unable to attend his tutorial class because he was sick. He missed a compulsory activity for which a medical certificate was required. He applied for a deferred exam and, as part of that application, submitted a medical certificate dated 12 October 2017 from a Dr Chee Fatt Chan. However, it transpired that Dr Chan had passed away in the year prior. It was evident the certificate had been altered from a certificate of an earlier date. Yousif did not directly deny altering the document but alleged he did not recall how the dates came to be changed.
The Court found Yousif’s declaration on his application for a deferred exam, where he attested the information on that form was true and correct, was false. His Honour also found Yousif undertook the same misconduct in earlier applications, again declaring the information was true and correct.
In reaching his conclusion, His Honour raised the application of the Briginshaw2 standard, which requires a closer scrutiny of the evidence in a civil case involving allegations of criminal conduct, fraud or moral wrongdoing which may lead to grave consequences for the defendant. Due to evidence of repeated incidents of submitting doctored medical certificates to the university with a declaration they were true, while knowing they were not, His Honour found the standard was satisfied.
Yousif alleged his university results had suffered as a result of his injury. He alleged that prior to his injury, his results were of a higher standard but, after his injury, he could not sit through a two-hour lecture, it delayed his progress with his degree, his concentration diminished, and he could not manage studying four units at a time.
The Court found each of these assertions were incorrect and that the objective evidence demonstrated Yousif’s results prior to his alleged injury were poor (having failed around half of the units attempted).
His Honour found Yousif was reckless with the accuracy of his answers regarding this issue, taking no care to ensure he was correct.
Yousif owned an investment property and listed it as his residential address in his 2020 tax return, despite repeatedly asserting he, in fact, lived with his parents. It was suggested to Yousif he falsified his address to save on capital gains tax. Yousif denied having committed a fraud because he had not yet sold the property, so he had not yet obtained the desired benefit of the misleading statement (that is, avoiding paying capital gains tax).
His Honour chose not to attribute much weight to this issue but found the other adverse credit issues were quite sufficient to reject Yousif as a witness of truth.
His Honour held that he would not rely on Yousif’s evidence unless it was corroborated, or it was contrary to his own interests.
Yousif alleged he was injured in a workplace incident on 18 August 2018. There were no witnesses, and the Court was dependent on Yousif’s testimony to determine what had occurred.
He conceded he had suffered a sore back, which he attributed to work in November 2017, almost a year prior to the alleged incident. He obtained a medical certificate at that time. He said he had no other real issues with his back, only suffering symptoms on rare occasions.
Prior to the alleged incident on Sunday, 12 August 2018, Yousif said he felt some tightness or cramp in his back but didn’t think too much of it, but that it hurt a bit more at the end of his shift. He alleged when he woke up the next morning the pain was still there, and he experienced a pinching pain and a tingling in his leg. He subsequently took the day off work and visited a medical centre where he was referred for a CT scan. The CT scan showed issues with his L3/L4 and L4/5. He received a further medical certificate for his Monday shift.
He was rostered to have the next two days off work, as he worked part time. He returned to work on the Thursday where he completed an eight-hour shift with no issues. He was rostered to have Friday off work. When he returned to work on the Saturday, Yousif alleged he lifted one of the meat boxes and twisted to put it on a pallet when he felt a twisting/cramping sensation in his back. He was working in a cold storage area, so he says he attributed his pain to the cold environment. As he was wrapping the pallet, he says he felt a shooting pain from his hip to his ankle. He reported this incident to his supervisor who suggested he stretch, fill out an incident report and go home.
In the incident report, Yousif stated he felt pain in his back while wrapping a pallet and he stood up, stretched and felt pain running down his leg.
Yousif alleged he attended his physiotherapist the following day (a Sunday) and saw his doctor on Monday. Medical records do not support that either of those visits occurred, but show he attended the medical centre on Tuesday.
The note from the medical consultation on Tuesday, 21 August 2018 states he had no relevant history but had lower back pain for one week. The evidence showed Yousif commenced light duties on 21 August 2018 and continued until March 2019.
Yousif alleged he was required to pick items at an unreasonable rate and struggled to do so, suggesting the requirements of the role were overly onerous. However, there was contrary evidence in a report of Ms Fiona Weigall, a certified professional ergonomist and registered occupational therapist, that Yousif was very good at his role and always met or exceeded the required rate so he could work for at least six hours per shift.
Yousif also alleged he was required to lift very heavy weights, up to 30kg each, but the Court was not satisfied there was sufficient independent evidence to establish this was required and how frequently he did so.
The Court heard that manually wrapping the pallets required Yousif to use a handheld roll of wrap and manually stretch it around a pallet. His Honour accepted manual stretch wrapping without aids or machinery creates risks of musculoskeletal injuries which constituted a breach of Coles’ duty of care to Yousif.
However, Yousif had just commenced work on the day of the alleged incident, so his symptoms were not a product of a long day of lifting heavy items and fast paced work. He had not worked at all on the previous day, and he had completed a shift without issue two days earlier. Accordingly, His Honour held that, if the repetitive nature, weight, and speed of the work had caused Yousif’s cramping and tightness, the Court was not satisfied that it could be attributed to what allegedly occurred on the day of the incident.
Ultimately, His Honour found that Yousif had already suffered the spinal injury that caused him pain prior to 18 August 2018 and was not persuaded that the incident on 18 August 2018 was anything other than a temporary, brief manifestation of an injury that had already occurred prior to 13 August 2018.
The Court found there was negligence in the system of work involving manual wrapping of pallets without assistance, however, it was not satisfied that this negligence materially contributed to the spinal injury Yousif suffered.
The temporary manifestation of a pre-existing injury was not sufficient to satisfy the threshold for any damages for non-economic loss (required in the New South Wales jurisdiction). Yousif’s other claimed heads of damage could not be attributed to the incident because he had not established any lost earnings, did not satisfy the threshold for gratuitous care and the out-of-pocket expenses for the pre-existing injury did not commence until three days after the incident, leaving His Honour unsatisfied that any expenses were due to what occurred on 18 August.
Coles was able to make independent enquiries which had a severe adverse impact on Yousif’s credibility. The most egregious instances of fraud in Yousif’s case occurred after the alleged injury, but we anticipate prior incidents would likely be viewed with a similar criticism.
This decision gives comfort to defendants that courts will put weight on credibility evidence contrary to the plaintiff’s interest when appropriate, even where there is no contrary scenario or evidence to be preferred. The decision is also a reminder of the importance of cross-referencing contemporaneous treatment records with allegations of symptoms and their alleged impact on the plaintiff’s earning capacity.
1. Yousif v Coles Supermarkets Australia Pty Ltd  NSWDC 516.
2. Briginshaw v Briginshaw (1938) 60 CLR 336.
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.