WCRA: woeful credit sinks claim & ‘advocacy’ expert report disregarded

Clayton v Jetcrete Oz Pty Ltd [2017] QDC 3

Morzone QC DCJ

The plaintiff, aged 57 at trial, was employed as a concrete agitator truck operator for the defendant. Before returning to work after a two week break, the plaintiff experienced back pain and received chiropractic treatment. The plaintiff alleged speaking to her supervisors at that time about the injury, however those conversations were contested.

The plaintiff alleged that she sustained injury when pushing concrete down the chute of a concrete truck. The defendant denied liability.

The issues for Morzone QC DCJ were as follows:

  1. Whether the plaintiff was injured in the way alleged; and
  2. Whether the injury was caused by the defendant’s negligence or breach of duty

Liability

Due to factual disputes, the plaintiff’s case turned on the reliability of her evidence. Relevantly, the plaintiff’s recount of the critical events was in stark contrast with other witnesses, particularly whether she climbed the truck ladder and pushed concrete down the chute. While Morzone QC DCJ found, at [23] – [26], the recount of the first witness as unreliable due to obstruction, his Honour preferred the evidence of the other two witnesses where it conflicted with the plaintiff (at [27] – [31], [39]).

The plaintiff submitted further documentary evidence regarding the incident, however his Honour found at [36] – [37] that they were secondary and could not make the plaintiff’s account more certain. Unpersuaded by the plaintiff’s account and finding that her evidence unreliable, his Honour stated:

[40] In addition to these evidentiary conflicts, it seems to me that the plaintiff’s credit was significantly diminished by cross-examination about her preparedness to conceal and otherwise embellish her true circumstances when it suited her convenience. She was demonstrably less than frank about her health in the defendant’s pre-employment process, and apparently concealed her financial and work activity in this proceeding

The plaintiff had falsely denied any history of depression and back problems while undertaking medical assessment. As to her financial situation, his Honour found:

[47] In her further updated statement of loss and damage, her quantum statement, and her oral evidence, the plaintiff asserted that she had not engaged in any employment activities or earned any income since the alleged injury of 13 July 2012

[48] On the contrary, the plaintiff’s Facebook account spruiks her involvement in multi-level marketing and sale of organic products, and it reveals a significant post-injury period of self-employment activity. This material, first revealed to the plaintiff’s lawyers during her cross examination at trial, boasts financial success of some degree associated with these activities

Morzone QC DCJ concluded that the injury was not attributable to any activity of pushing concrete down a chute.

Notwithstanding this finding, his Honour continued to address the relevant breach of duty. Importantly, when considering the relevant risk, the plaintiff sought to rely on a report prepared by Intersafe. Of this report, his Honour found:

[65] I accept the defendant’s submission that Mr McDougall’s report and opinion (perhaps more aptly characterised as advocacy) was written through the prism of hindsight.

[66] Hindsight has no place in the assessment of the risk of injury. As Garling J held in Benic v New South Wales [2010] NSWSC 1039: “The assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play.”

Quantum

Had the plaintiff been successful, Morzone QC DCJ assessed damages as follows:

 

General damages

 

$9,410.00

 

Past economic loss

 

$95,906.00

 

Interest on past economic loss

 

$4,961.21

 

Past superannuation

 

$8,631.56

 

Future economic loss

 

$50,000.00

 

Future superannuation

 

$5,500.00

 

Special damages

 

$17,000.00

 

Care and assistance

 

$5,000.00

 

Future expenses

 

$5,000.00

 

Sub-total

 

$201,409.02

 

Less WorkCover refund

 

-$10,042.43

 

TOTAL

 

 

$191,366.59

 

David Cormack – Brisbane Barrister & Mediator

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