A plaintiff need not be perfect
22nd Mar 2018
The workers’ compensation system is a minefield for plaintiffs. Having to state and re-state your injuries, being interrogated about your pain, and having to convince people about and justify your restrictions, leaves the ground fertile for credibility issues. Perceptions differ. Memories fade. Pain is relative. Injuries are not static, but they fluctuate. His Honour Justice Boddice of the Queensland Supreme Court commendably gave consideration to these factors in the matter of Cincovic v Blenner’s Transport Pty Ltd  QSC 320.
The plaintiff was employed by the defendant as a truck driver. On 30 March 2014, he was riding a pallet jack ‘like a scooter’ (which was, according to the defendant, an incorrect and unsafe manner in which to ride it), to transport it through the depot to his truck. His colleague kicked the pallet jack which caused the plaintiff to fall, and he sustained compression fractures to C7, T1, T2, T3 and T4. The fall also resulted in a secondary psychiatric injury.
The defendant denied liability for the incident, alleging that it did not condone skylarking or horseplay among employees. This was accepted by the court. The defendant had provided all employees, including the plaintiff, with a code of conduct which restricted such activities, and its managers and supervisors gave evidence that they would instruct any employees acting recklessly to cease doing so immediately.
Boddice J found the plaintiff to be an unreliable witness: he exaggerated, tailored his evidence to enhance its acceptance, and even manufactured false documentary evidence. His Honour did not accept much of the plaintiff’s evidence as to the circumstances of his employment, including that he received no training and that the defendant condoned skylarking.
That being said, there was sufficient evidence to show that the organisation’s supervisors and managers had witnessed employees riding on pallet jacks incorrectly and, while they may have given instructions to those specific employees not to do so, no blanket prohibition of this had been communicated to all staff, and particularly not to the plaintiff. ‘The failure of the defendant to instruct workers not to undertake that activity and to establish and enforce a system of work which did not permit such an activity’ was sufficient to show that the defendant had breached its duty of care to the plaintiff.
One significant oversight on the part of the plaintiff, however, was his failure to adduce evidence before the court that, had such an instruction been given to the plaintiff, he would have complied with it. This oversight meant that the plaintiff failed in his claim for direct liability.
The plaintiff fell off the pallet jack as a result of a colleague kicking the pallet jack, and the defendant was found vicariously liable for the resulting injury. The court determined that the event took place in the course of the plaintiff’s employment, and there was sufficient connection to the plaintiff’s work duties to engage the liability of the defendant.
In addition, the court determined that there was no contributory negligence on the part of the plaintiff. The plaintiff was unaware that it was unsafe to ride on the pallet jack in the method he employed. He was travelling at a moderate speed and did not anticipate that his colleague would kick him off.
With respect to damages, although the medical evidence did not change His Honour’s perception of the plaintiff as regards his lack of reliability in recounting the circumstances leading up to and surrounding his injury, it did support the plaintiff’s claim for a sizeable award of damages. His Honour found that the combination of his physical and psychiatric injuries rendered the plaintiff commercially unemployable and awarded total economic loss for the past and 70% loss for the future, with a further 25% vicissitudes deduction. In accordance with Schedule 9 of the Workers' Compensation and Rehabilitation Regulation 2014, an Injury Scale Value of 19 was awarded for general damages. The maximum available for the plaintiff’s thoracic spine injury was 15, with a 25% increase to account for his cervical spine injury.
Future treatment of $40,000 was awarded for general practitioner consultations, medication and psychiatric treatment. An award of $25,000 was also made for care, despite the finding that the plaintiff had falsified invoices associated with the provision of lawn mowing services. The total judgment in favour of the plaintiff was for $874,669.70.
This judgment serves as a reminder to defendants in workers’ compensation cases that plaintiffs are not perfect, and are not required to be. Elements of fear, doubt and confusion will influence their evidence, and exaggeration or elements of untruthfulness when presenting their case will not necessarily result in a failed claim. Injury litigation is not a mathematical equation; we must remember that we are dealing with people. Their messy lives, their faults and annoying traits, their mistakes and their biases, and all that comes with that.
Maurice Blackburn Lawyer Michelle Wright has spent much of her legal career in the field of personal injury litigation and has a particular interest in assisting clients who have sustained psychiatric injuries from incidents at work or on the road. She is a member of the Queensland Law Society, the Australian Lawyers Alliance, the Women’s Lawyers Association of Queensland and the Logan and Scenic Rim Law Association and works in a variety of volunteer programs to ensure that everyone is given equal access to essential legal advices.
This article was originally published on Michelle's blog, P.I. Case Note.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).