Credibility is the must-have attribute of a plaintiff if he or she is to succeed in a claim for damages. The recent decision of Bergin v Queensland Cork & Timber Solutions Pty Ltd [2019] QDC 141 is a stark reminder of that.

The plaintiff, a 39 year old floor sander, alleged he developed an injury to his right hand in 2013 when working for his employer, Queensland Cork & Timber Solutions (“QCTL”). He was removing a floor using a jemmy bar and hammer. He also alleged he developed a secondary psychological condition.

The plaintiff had a significant pre-existing injury to his right hand. Seven years prior to the incident, in 2006, the plaintiff suffered a significant injury working for another employer, which culminated in chronic regional pain syndrome, as well as a significant psychiatric illness. For that prior incident he claimed damages. That claim settled in 2008 for a gross amount of $475,000 on the basis the physical and psychological injuries resulted in a significant incapacity for work.

Fast forward to 2013 and the plaintiff commencing work for QCTL. He claimed around this time “…life was looking more positive” for him. His medical records demonstrated otherwise. The court noted multiple attendances on his GP throughout 2012 for severe hand pain and depression, for which he sought the strongest prescription painkillers (including Oxycontin) and self-medicated with marijuana. It also noted the Plaintiff applying in late 2012 for the Disability Support Pension (from Centrelink) on the basis of his depression and left arm problems.

If life was “looking more positive” for the plaintiff, it was not reflected in his attempts to return to work between 2006 and 2013. In that time he managed only four months work with various employers, including self-employment.

For the 2013 injury he was assessed by various medical experts. He did not reveal the true extent of his pre-existing left arm and psychological injuries to these experts. He did not reveal he had not worked for about six and a half years prior to the 2013 incident. He did not reveal he had sought strong painkillers. He did not reveal his depressive symptoms at the beginning and end of 2012. He denied illicit drug use. This “lack of candour” undermined his credibility in the eyes of the Court.

Notably, in the 18-page judgement, before even discussing liability, the learned judge took five pages to outline the plaintiff’s credibility issues. This was not a good starting point for the plaintiff in alleging QTCL breached its duty of care to him.

When considering whether an employer has breached its duty of care to a worker, the Workers Compensation and Rehabilitation Act 2003 demands the issue be considered prospectively, without the benefit (i.e. bias) of hindsight. The Court found the task undertaken by the plaintiff was a physically demanding but relatively simple one. The employer gave evidence that no similar injury had been sustained by any worker in 40 years of operation.

It found the employer gave adequate instruction in the correct work method. The plaintiff followed this method initially, but later chose to use what he considered a more effective method, because the method in which he was trained was “pissing him off”. The Court also found the magnitude of the risk from performing this simple task was “relatively small”. The Court concluded, looking at the matter prospectively, that a reasonable employer would not have taken further action in terms of training or implementing safeguards, and therefore did not breach its duty of care to the plaintiff.

In terms of how the incident occurred, the Court noted several inconsistencies between the versions given by the plaintiff in his Notice of Claim, his pleaded case and his evidence in Court. Her Honour Judge Loury QC said:

“I am left in a significant state of doubt as to how the injury was sustained. I do not consider that the plaintiff was being dishonest in his evidence. He is an emotional man who clearly believes that he has suffered a permanent injury for which his employer is responsible. His evidence does seem to have been tailored to suit his present recollection… This makes assessing the countermeasures that the plaintiff alleges ought to have been taken to avoid injury, difficult”.

The above passage is noteworthy. In our experience, there are few plaintiffs who set out to deceive deliberately. Despite the public perception to the contrary, cases of genuine fraud are quite rare. However, some plaintiffs will, unconsciously perhaps, present their cases with an element of reconstruction and / or lack of candour. This can be fatal to their claim, especially in cases where liability is very much in dispute.

When alleging an employer has breached its of duty of care, workers will always bear the onus of proof. This case is a reminder to plaintiffs that credibility is essential to bearing that onus.

Image: Photo by Obi Onyeador on Unsplash

About the author

Duncan Hutchings is a Consultant of Hughes and Lewis Legal

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