Del Bono v Workers' Compensation Regulator [2022] QIRC 453

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Del Bono v Workers' Compensation Regulator [2022] QIRC 453 PARTIES: Del Bono, Marco (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2021/192 PROCEEDING: Appeal against decision of Workers' Compensation Regulator DELIVERED ON: HEARING DATES: 23 November 2022 7 October 2022 2 November 2022 MEMBER: HEARD AT Hartigan IC Brisbane ORDER: 1. The appeal is allowed. 2. The decision of the Regulator dated 17 November 2021 is set aside. 3. The application is returned to the Regulator for further consideration on the basis that Mr Del Bono is a 'worker' within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 (Qld). CATCHWORDS: WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF THE WORKERS' COMPENSATION REGULATOR – ENTITLEMENT TO COMPENSATION – whether appellant was a 'worker' for the purposes of s 11 of the Act – lack of corroborating evidence -- 1 of 12 -- 2 as appellant is 92 years old and the event in question occurred between 67 and 72 years ago – the application of s 36(a) of the Act is not in contention – Appellant found to be a 'worker' who had worked at Mount Isa Mines Limited LEGISLATION: CASES: Workers' Compensation and Rehabilitation Act 2003 (Qld), s 11 Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Act 2013, s 71 Charters Tower Regional Council v Workers' Compensation Regulator [2019] QIRC 027 Aldi Stores (A Limited Partnership) v Workers' Compensation Regulator [2019] QIRC 51 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031 Zegenhagen v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 037 Ambulance Service of New South Wales v Anderson [2011] NSW WCCPD 3 APPEARANCES: Mr M. Black, Counsel, instructed by Maurice Blackburn Lawyers for the Appellant Mr S. McLeod, KC, directly instructed by the Workers' Compensation Regulator Reasons for Decision Introduction [1] The Appellant in this matter, Mr Del Bono, seeks to appeal a decision of the Workers' Compensation Regulator ('the Regulator') dated 17 November 2021 confirming an earlier decision by XtraCare ('the Insurer') to reject Mr Del Bono’s application for workers' compensation. [2] It is agreed between the parties, that the sole issue for determination in this appeal is whether Mr Del Bono was a 'worker' within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act'). Mr Del Bono contends that he was a 'worker' on the basis that he was employed by Mount Isa Mines Limited ('MIM') between 1950 and 1955. -- 2 of 12 -- 3 [3] The Appellant bears the onus of proving that he was a 'worker' within the meaning of the Act.1 An appeal of this type, pursuant to Chapter 13, Part 3 of the Act, is a hearing de novo.2 Relevant background [4] Mr Del Bono is 92 years old and was born in Palermo, Italy. Mr Del Bono currently resides in Lipari, Italy. [5] In 1948, Mr Del Bono travelled to Sydney, Australia where he claims to have obtained employment. Initially he worked at a restaurant in Sydney for approximately one month. Mr Del Bono then travelled to the Snowy Mountains in New South Wales and found work3 on the Snowy Mountains Hydro Electric Scheme. [6] In 1950, Mr Del Bono travelled to Mount Isa, Queensland and claims he was offered and subsequently accepted employment with MIM. [7] It is accepted between the parties that on 26 May 2020 Mr Del Bono was diagnosed with a silica related dust fibrosis. [8] On 21 September 2021, Mr Del Bono lodged a workers' compensation claim with the Insurer. [9] On 9 June 2021, the Insurer advised Mr Del Bono that his application for compensation had been rejected. [10] Mr Del Bono sought a review of the Insurer's decision and on 17 November 2021, the Regulator confirmed the decision on the basis that Mr Del Bono was not a 'worker' in accordance with ss 36A and 11 of the Act. [11] Mr Del Bono's claim is that he was a 'worker' for the purposes of the Act and that he had worked at MIM's mine site in Mount Isa from about 1950 to approximately 1955. In support of its position, the Regulator contends that there is insufficient evidence to support Mr Del Bono's assertion that he was employed by MIM as a 'worker'. Relevant legislation [12] It is agreed between the parties that Mr Del Bono's latent onset injury occurred at some time between 2003 and 2011 and the definition of 'worker' in s 11 of the Act (as in force up to 2011) applies to the appeal.4 1 Charters Tower Regional Council v Workers' Compensation Regulator [2019] QIRC 027, [61] and [62]; Aldi Stores (A Limited Partnership) v Workers' Compensation Regulator [2019] QIRC 51. 2 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031, [27]. 3 Mr Del Bono's evidence was that he worked as a miner digging (drilling) tunnels under ground and blasting the rock with gelatine. 4 See Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Act 2013, s 71. -- 3 of 12 -- 4 11 Who is a worker (1) A worker is a person who works under a contract of service. (2) Also, schedule 2, part 1 sets out who is a worker in particular circumstances. (3) However, schedule 2 part 2 sets out who is not a worker in particular circumstances. (4) Only an individual can be a worker for this Act. … Consideration [13] The evidence consisted of affidavit and oral evidence of Mr Del Bono5 and Ms Tanya Stewart6, Human Resources, Superintendent, Glencore. The Regulator contends that Mr Del Bono's evidence is not reliable. [14] The determination of the issue will require an analysis of Mr Del Bono's evidence and whether his evidence is accepted as credible and reliable. In determining the credibility and reliability of Mr Del Bono's evidence, I have also had regard to the effects of the passage of time since the events in question, approximately some 70 years, Mr Del Bono's current age, being 92 years old, and the fact that he gave his evidence through an interpreter. [15] Ms Stewart was called by the Regulator. Ms Stewart's evidence essentially dealt with the nature of the historical records that her employer, Glencore, has in its possession with respect to the records which were originally held by MIM and Xstrata. The mine was operated by MIM during the relevant period between 1950 to 1955. Later it was operated by Xstrata and now it is operated by Glencore. [16] Ms Stewart's evidence is that Glencore currently uses an electronic database, Ellipse, to keep employment records of past and present workers. Prior to introducing Ellipse, an online system called Perscape was used for keeping employment records, Perscape is still accessible. Combined, the records kept on the electronic data lasts date back to around the 1970's. Accordingly, Ms Stewart's evidence that Mr Del Bono's records could not be found on the electronic database is not surprising. [17] Of more relevance, Glencore also has in its possession hard copy employment records known as 'yellow cards'. Ms Stewart's evidence was that the yellow cards are paper files of each workers' employment history from their employment at MIM. Ms Stewart stated that she performed a search of the yellow cards on site but was unable to find a yellow card for Mr Del Bono. [18] Ms Stewart also stated that MIM had previously kept employment records on microfiche cards but could not locate his employment records. [19] Under cross-examination, Ms Stewart was asked what time period the yellow cards were used for. Ms Stewart's evidence was that: 5 Mr Del Bono appeared by video link. 6 Ms Stewart also appeared by video link. -- 4 of 12 -- 5 ---Yes. I'm led to believe they were from as early as the 50s. There are some people that have cards from the 50s.7 [20] Similarly, Ms Stewart was asked the time period that the microfiche cards were used. Ms Stewart's response was that: ---Same period if not earlier. But generally I can only say that was 50s or 60s.8 [21] When asked whether she was sure as to when those records first began to be used, Ms Stewart responded: ---No. I'm led to believe it's the 50s. It's not a complete record because certainly, when they, sort of, started using those yellow cards, they rarely keep them for a period of 20 years and then they would discard them.9 [22] Accordingly, while it was Ms Stewart's evidence that she could not find Mr Del Bono's employment record, Ms Stewart also confirmed that the records were not complete records for several reasons including that, historically, yellow cards were not kept beyond 20 years. [23] Further, under cross-examination, Ms Stewart's evidence in summary included that: (a) she was not aware of the practice in 1950 with respect to how MIM offered employment to workers.10 (b) she was aware that it was standard practice for MIM employees to live at the MIM Barracks in the 1950's and that they paid for their accommodation out of their salary;11 and (c) she was not aware as to whether MIM paid its employees a weekly wage during the relevant period.12 [24] I do not consider that Ms Stewart's evidence contradicts the evidence given by Mr Del Bono. Indeed, for instance, Ms Stewart's evidence that she understood that workers lived at accommodation provided on site during the relevant period supports some aspects of Mr Del Bono's evidence. [25] Mr Del Bono executed a statement on 18 November 2020. At that time Mr Del Bono was 90 years old. He was 92 years old at the time of giving evidence before the Commission. Mr Del Bono’s statement was tendered into evidence13 and the contents of the statement comprised his evidence in chief. 7 T1 – 33, ll 43 – 44. 8 T1 – 34, ll 3 – 4. 9 T1 – 34, ll 5 – 8. 10 T1 – 41, ll 13 – 16. 11 T1 – 34, ll 19 – 22. 12 T1 – 34, ll 24 – 26. 13 Exhibit 1 Affidavit of Mr Del Bono dated 18 November 2020. -- 5 of 12 -- 6 [26] Mr Del Bono's evidence was that at 17 years old he decided to leave Italy. He set sail on the ship, The Napoli, in October 1948 and arrived in Sydney, Australia in January 1949.14 [27] Mr Del Bono recalls being greeted in Sydney by a relative who allowed him to stay for a few days at his home in Mosman Junction. [28] Mr Del Bono met other relatives whilst he was in Sydney and recalled their names in his evidence. Mr Del Bono also recalled variously living in George Street, Kings Cross and Double Bay whilst he was in Sydney. Mr Del Bono was able to recall the details of his first job in Sydney and that he joined the Police boys club where he did sports in the evening. [29] After living in Sydney for approximately one month, Mr Del Bono travelled to the Snowy Mountains in New South Wales. He found work on the Snowy Mountains Hydro Electric Scheme as a miner. Mr Del Bono's evidence was that he spent the vast majority of his time working underground in poor conditions. He said that he drilled holes into the rock, filled the holes with explosive gelatine that were then blown up. Mr Del Bono recalls that whilst he was performing work, he wore a rubber suit with high rubber boots. He says that he was not provided with a mask but was provided with a hard hat which he later described under cross-examination as a helmet.15 [30] Mr Del Bono states that after 12 months he could not bear working in the conditions any longer and decided to travel to Mount Isa in Queensland. [31] Mr Del Bono recalls arriving in Mount Isa by train after an approximate three-day journey. He states that he arrived in the evening and slept on the wooden floor of the railway station. Mr Del Bono’s evidence was that the following day he met a man whom he described as a “Maltese man” who invited him for dinner and let him stay at his home. Mr Del Bono states that he could not recall the name of the man but had never forgotten that night because, during dinner, with the light bulb on, he was "viciously attacked by mosquitoes".16 [32] Mr Del Bono’s statement describes the nature of the employment at Mount Isa Mines. As this evidence is of a critical nature, I will include the passages from Mr Del Bono’s statement as follows: 15. It was this man who suggested to me that I go down to the Mount Isa Mines workers' office to see if there were any jobs available. I did as the man said and went to the worker's office at the Mount Isa Mines the following day. I was offered employment straight away, which I accepted. 16. I started work the day after and for the next approximate four years I was employed by the Mount Isa Mines and was paid a weekly wage. My employment at the Mount Isa Mines was a long time ago, but I remember the living and working conditions well. The working 14 Attached to Mr Del Bono’s statement is a passenger list from The Napoli which appears, despite a spelling error, to include Mr Del Bono as a passenger. 15 T1 – 9, l 40. 16 Exhibit 1 Affidavit of Mr Del Bono dated 18 November 2020. -- 6 of 12 -- 7 conditions were hard and it upsets me now to think about the physical and mental challenges I endured during my time working at the Mount Isa Mines. Despite the tough working conditions, I was dedicated to my job and I always worked hard. 17. I lived in the Mount Isa Mines barracks for the entirety of my employment. There was a dining hall and games room in the same building as the Mess where I slept. There was also a swimming pool. I enjoyed swimming and using the recreational facilities with my work mates when I was not on shift. [33] Mr Del Bono was able to provide quite detailed evidence with respect to the work that he performed whilst at the mine. The following details were provided by Mr Del Bono with respect to the nature of the work he says he performed: 18. I worked in the area of the mine, which processed the Ore once it had been mined. Once the Ore has been mined, it would go through a water treatment and recycling process. The Ore was then crushed in a machine (to extract the mineral from the rock) and the end product was a mix of powder, minerals and waste rock (extracted material). 19. This extracted material (which was extremely dusty) was then tipped into huge mounds inside an enormous shed ready to be moved into large containers for the separation process. 20. I had the job of transporting the extracted material (the mounds of powder, minerals and waste rock) to the containers. I used a square shovel and wheel barrow and physically shovelled the extracted material into the wheel barrow and wheeled this material to the containers, repeating this process. 21. The process of shovelling the extracted material into the wheel barrow resulted in clouds of dust forming around me. I was breathing in this dust for hours on end during my shifts. Inside the shed where I worked was always dusty. There was limited airflow. I think that there must have been at least 100 other workers in the shed working with me on each shift doing the same work and so the level of dust in the shed was always high. 22. I spent the entirety of my shifts, shovelling huge amounts of the extracted material into a wheel barrow and repeating this process once I had emptied the wheel barrow into the containers. It was hard labour and I breathed in huge amounts of dust for hours and hours, six days per week. The working conditions were unbearable from the dust environment, but I was young and determined to keep going with this job. 23. I was never warned by my employer that there was a danger to my health from the work that I was doing. I was not provided with a mask or any protective gear to prevent my exposure to what I now know was harmful dust including silica dust. I would leave my shifts covered in dust, head to toe completely unaware of the risk to my health. [34] The extent of Mr Del Bono’s evidence with respect to his workmates was that they were of similar age or older than him and that he did not stay in touch with them after he left MIM. Attached to Mr Del Bono's statement are several photographs which he contends were taken of him and his workmates in or around MIM. Relevantly, there are several photos of Mr Del Bono allegedly at the Mount Isa pool, Mr Del Bono lying on grass outside of the barracks at MIM, Mr Del Bono standing outside the mess, board games and billiards room at MIM and Mr Del Bono standing outside the mess with two of his workmates. -- 7 of 12 -- 8 [35] Mr Del Bono did not take the photographs and could not recall who did. Further, the photographs are annotated with a handwritten description as to what the photo purports to be of. The handwriting is not Mr Del Bono’s handwriting and he could not recall whose writing it was.17 [36] Mr Del Bono also gave evidence with respect to his relationship with Ms Christina Lynch from Sydney. It appears from the cross-examination of Mr Del Bono, that he met Miss Lynch after he arrived in Sydney and that they remained in contact. Mr Del Bono describes Ms Lynch as his “first love”. Mr Del Bono alleges that Ms Lynch came to visit him in Mount Isa and stayed at “a little hotel in Mount Isa for a few days”.18 Mr Del Bono gave evidence about Ms Lynch’s job and the name of her then young son whom he says he stayed in touch with over the years. [37] Mr Del Bono’s evidence was that after approximately four years, of what he described as, physically and mentally challenging work he decided to leave MIM. He states that he returned to Sydney and worked for a few months and then departed for home to Italy as he was starting to get homesick. Mr Del Bono’s evidence was that he stopped in Tahiti, Panama and Holland before arriving back in Italy. Eventually he travelled to the Aeolian islands and settled on the island of Lipari where he still lives today. [38] Mr Del Bono, together with the support of his aunt, uncle and father, secured a property on the Bay of Lipari and opened a hotel in 1959. In the late 1960's he created another hotel across the bay which opened in 1970. Mr Del Bono’s evidence is that he continued in the hotel business for the remainder of his working life. [39] In 1970, Mr Del Bono married and between 1973 and 1978 he and his wife had three children. Mr Del Bono’s wife was English and the family would travel to England regularly each winter and stayed with his wife’s family in Hampshire. It appears that Mr Del Bono never returned to Australia. [40] The Regulator contends that Mr Del Bono's evidence is unreliable on the basis that there is an absence of corroborating evidence and because Mr Del Bono's failure to recall, under cross-examination, the names of his colleagues that he worked with whilst at the Snowy Hydro Electric Scheme and whilst at MIM. [41] At the outset of Mr Del Bono's cross-examination it became apparent that he had difficulties with reading his statement.19 Consequently, his oral evidence was given without reference to his written statement. [42] The Regulator conducted a thorough examination of Mr Del Bono which lasted almost three hours. Adding to the length of the cross-examination was the need to clarify certain questions put to Mr Del Bono and his responses through the interpreter. 17 T1 – 22, l 40. 18 T1– 27, ll 44 – 46. 19 T1 – 6, l 4. -- 8 of 12 -- 9 [43] Despite the length of time between Mr Del Bono executing his statement and the giving of his oral evidence, his oral evidence, after some exploration and clarification by Mr McLeod, was largely consistent with the statement.20 For instance, Mr Del Bono was able to, on the whole, provide consistent evidence with respect to his arrival in Australia, the names of relatives he met whilst in Australia, the relationship he had with Ms Lynch, the nature of the work he performed in Sydney and on the Snowy Mountains Hydro Electric Scheme, his arrival in Mount Isa and meeting a man who suggested he find work at MIM. Mr Del Bono gave consistent evidence with respect to how he ended up working at MIM, the nature of the work he performed and his accommodation and the recreational activities he engaged in whilst at MIM. [44] Mr Del Bono's evidence21 was that he was employed by MIM and paid a weekly wage. [45] The Regulator submitted that, Mr Del Bono did not identify the amount of the weekly wage and that it was "just simply baldly stated…"22 Further, the Regulator submitted that: It's difficult, with respect, for the regulator to put a contrary case that he wasn't paid a weekly wage then there's no evidence he was actually employed by Mount Isa Mines for this period of time, that he asserts that he was employed at the mine site…23 [46] I infer that it is the Regulator's submission to be that there is no corroborating evidence that Mr Del Bono was employed by MIM as there is Mr Del Bono's evidence that he was employed by MIM for this period. [47] Given the significant passage of time, being some 72 years since Mr Del Bono arrived in Mount Isa in 1950, I consider that it is not unusual that corroborating evidence cannot be adduced. [48] Ms Stewart's evidence confirmed that, historically, there had been a practice at the mine to not keep the yellow cards for more than 20 years. Consequently, I can not be satisfied that the MIM records dating back to the 1950's are complete. It follows that the absence of Mr Del Bono's employment record does not necessarily support a conclusion that he was not employed by MIM. Similarly, Mr Del Bono did not produce a payslip nor did he quantify in his evidence how much he was paid on a weekly basis by MIM. Again, I consider the significant passage of time that has passed since Mr Del Bono asserts that he was employed by MIM provides a reasonable explanation with respect to the absence of this type of corroborating evidence. 20 Which, as noted above, was Mr Del Bono's evidence in chief. 21 Exhibit 1 Affidavit of Mr Del Bono dated 18 November 2020 at [15]. 22 T1 – 42, l 11. 23 T1 –42, ll 11 – 14. -- 9 of 12 -- 10 [49] Swan DP in Zegenhagen v Simon Blackwood (Workers' Compensation Regulator)24 cited with approval the following passage of O'Grady DP in Ambulance Service of New South Wales v Anderson: The mere absence of corroboration does not, as seems to be asserted by the appellant, preclude acceptance of that evidence. The obligation upon a fact finder is to consider the totality of the evidence to determine whether its effect has given rise to an actual persuasion of the existence of the fact in issue.25 [50] Accordingly, regard must be had to the totality of the evidence before the Commission. [51] In this regard, the Regulator further points to Mr Del Bono's failure to recall the names of his workmates from both the Snowy Mountains Hydro Electric Scheme and MIM. [52] The Regulator drew a distinction between the somewhat detailed nature of Mr Del Bono's evidence about the nature of the work he performed, yet when he was cross-examined by the Regulator, he was unable to recall the names of any of the people he worked with during this time. [53] The Regulator submitted that Mr Del Bono's failure to recall the names of his colleagues was "extraordinary". The thrust of the Regulator's contention in this regard can be drawn from the following extract of the Regulator's closing submissions: …But this is where it gets back to, with respect, his credit. And it's extraordinary that he cannot remember and give any evidence of any name of the engineers he said were wasting money. He couldn't give any evidence of – I asked him, of who his boss or supervisor were who gave him the work. He could give no evidence of the name of any of the co-workers that he slept with in the accommodation. And this is particularly so when he acknowledged, as he did when he worked at the Snowy Mountains scheme, that a number of the co-workers he resided with, slept with in the barracks, were Italians.26 [54] Mr Del Bono gave evidence of socialising with his workmates who he states that he resided with at the MIM Barracks and that he would, for instance, go swimming at the Mount Isa pool with some of his workmates on their one day off a week. [55] Mr Del Bono adduced photographs which he says depicts him with several work colleagues. Mr Del Bono, under cross- examination, was unable to recall the names of these workmates. [56] I have concluded that it is not, in the context of this matter, extraordinary that Mr Del Bono is unable to recall the names of people he worked with approximately 70 years ago. The evidence is that Mr Del Bono arrived in Australia and worked at MIM in his early 20's. After leaving Australia and returning home, Mr Del Bono lived a full and distinct life to that of his early years in Australia. He developed and ran several hotels in or around Lipari. Mr Del Bono married in 1970 and subsequently had three children. 24 [2015] QIRC 37 at [20]. 25 [2011] NSW WCCPD. 26 T1 – 42, ll 14 – 21. -- 10 of 12 -- 11 [57] His evidence, which I accept, is that he did not stay in touch with his workmates when he left Mount Isa.27 [58] Mr Del Bono also gave evidence that he did not make friends easily. Whilst he may have had a pleasant time with his workmates, there was no evidence that he formed a deeper friendship with any of them. This might provide an explanation as to why Mr Del Bono was able to recall the names of those individuals whom he did have a meaningful relationship with, for instance, his relatives in Sydney and Ms Lynch, but could not recall the names of his workmates. I do not consider that Mr Del Bono's failure to recall the names of his work colleagues detracts from the reliability of his evidence particularly with respect to his evidence regarding the nature of the employment with MIM and the nature of the work he performed whilst at MIM. [59] Ultimately, I have accepted Mr Del Bono as a truthful witness. I have accepted his evidence that he was employed by MIM between 1950 and 1955 and was paid on a weekly basis. [60] Whilst Mr Del Bono was not able to recall the names of his work mates, his evidence was sufficiently cogent and detailed with respect to the commencement of the employment, the nature of the work performed whilst on shift and the type of recreational activities he engaged in on his one day off a week. [61] For these reasons, I accept that Mr Del Bono is a 'worker' within the meaning of s 11 of the Act. [62] As noted above, the only issue for my determination in this appeal is whether Mr Del Bono is a 'worker'. Consequently, I will issue an order, inter alia, returning the matter to the Regulator for further consideration on the basis that Mr Del Bono is a 'worker' within the meaning of s 11 of the Act. [63] Accordingly, I make the following orders: 1. The appeal is allowed. 2. The decision of the Regulator dated 17 November 2021 is set aside. 3. The application is returned to the Regulator for further consideration on the basis that Mr Del Bono is a 'worker' within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 (Qld). 27 Exhibit 1 Affidavit of Mr Del Bono dated 18 November 2020 at [24]. -- 11 of 12 -- 12 -- 12 of 12 --