Wharfie put to “back-breaking” work, employer not liable for back break

Test v Forgacs Engineering Pty Limited [2012] QDC 318

The dockworkers at Brisbane’s Cairncross slipway were under some pressure to complete routine hull maintenance, during the Sun-Princess’ two day docking there in August 2009 in preparation for its next Pacific Ocean cruise.

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Reproduced with the permission of Carter Capner Law.

Note issues of credibility:

[23] I feel confident that Mr Test was aware of the gross exaggeration of such claims which are based on the assumption of full-time employment at a weekly rate which was only occasionally ever achieved. Not only do I think Mr Test put himself in the position of presenting his claims as just ones, I think that he effectively represented that his remunerative employment with the defendant was available and availed of week in week out, whereas the truth was that he worked not much more than one week in four. Such conduct is in my view discreditable and it can justify a court in rejecting or entertaining grave reservations about the plaintiff’s evidence generally, including evidence on liability issues. I will set out part of the judgment of Ambrose J in Hornberg v Horrobin (Supreme Court of Queensland 8196 and 836 of 1996, 24 October 1997) BC 9705772 at 39-41, which Mr Morton, pursuant to an undertaking given during final addresses, supplied after the trial:

 

“The plaintiff has been grievously injured. Prior to injury she was a strong healthy girl who had grown up in country areas and developed skills necessary to accommodate her in the grazing industry. Now of course she is tetraplegic and for the rest of her life will suffer the great loss of amenity and need for assistance of various sorts attributable to her injury. It is understandable that she and other members of her family would do their best to support her case – on issues of both liability and quantum.  I will deal with the issue of quantum later. However in my view the case on quantum presented on behalf of the plaintiff and supported by members of her family was contrived in the extreme. Undoubtedly the plaintiff suffered serious injury requiring much care and attention.

However the stratagem adopted by the plaintiff apparently based upon her own unaided researches of legal text books at the Surat library prior to and at the time of the adjournment of her case in May 1997 to enter into the “agreement” (Exhibit 23) which she prepared herself to pay her parents $550 per day for their provision of the assistance she needed because of her tetraplegic condition and presumably her insistence that this matter be placed before the Court with a view to inflating the award of damages and the evidence she actually gave concerning the alleged arrangements and “discussions” with her bank manager and accountant about it, in my view are such that the whole exercise was properly categorized by counsel for the first defendants as a “sham”. In my view, the evidence as to the hours of assistance actually given to the plaintiff and the so-called “records” kept, as well as the “agreement” and the “invoices”, all of which were tendered to support the plaintiff’s case, upon careful examination, leave me with less than confidence as to the weight that should be given to the evidence of the plaintiff and her sister as to the events of the day immediately preceding her injury on 17 December 1991.

I am unpersuaded as to the reliability of the only evidence given by the plaintiff and her sister on the issue of liability.”

 

To similar effect is Collings v Amaroo (Qld) Pty Ltd [1997] QCA 224 at page 7:

 

“A plaintiff who is guilty of dishonesty or misstatements to his legal advisers, his medical consultants, and the court hearing his claim necessarily places himself in a difficult position if his deceit is discovered. It leaves the court with the impossible task of attempting to assess his true condition by reference, not to what he has said about it, but to what he and others might have said if he had told the truth. In substance, that was the state of affairs that prevailed in the present case. The falsehoods in the plaintiff‟s evidence have the consequence of preventing the trial judge, and now this Court, from knowing and assessing the real disability, if any, caused by the experience he underwent on the night of 25 October 1994. The judge was justified in rejecting the plaintiff as a credible witness, and his finding to that effect was not challenged on appeal. Once that conclusion is reached, it infects other evidence (including that of his wife) about his condition after the incident. If he was prepared to go the length of fabricating marks of an assault on himself, there is no reason  to suppose he would have been reticent about doing so with respect to other aspects of his condition after the event. The suggestion on appeal that the plaintiff should be awarded compensation for some degree of post- traumatic stress finds no support in any reliable evidence given at the trial.”

 

That passage was recently approved in Lusk v Sapwell [2011] QCA 59 at [65].  See also Platen v Monadelphous Workforce Pty Ltd [2009] QSC 222 at [55] ff.

 

 

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