I am often asked by client’s what I consider the single most important element of their claim to be. My answer is always “your credibility is key”.
What I mean by that is that no matter how good a job a lawyer does in running down all the available evidence, obtaining helpful medical reports and framing your case in its best possible light, if the claimant’s credibility is damaged, a positive result in the claim will rarely be achieved.
The importance of the credibility and reliability of the plaintiff’s evidence was illustrated again in the recent decision of Loury QC DCJ in the Brisbane District Court in the matter of Johnson v Fraser Coast Regional Council.[1]
The case involved a knee injury suffered by a 49-year-old male plaintiff who worked as a plant operator with the Fraser Coast Regional Council.
Whilst the particular circumstances of the injury are not relevant for the purpose of this article, the dispute to be decided by the court involved whether the plaintiff had sustained his injury at work and whether the employer had been negligent in causing the injury.
The lawyers acting on behalf of Workcover Queensland framed their defences of the claim on submissions that:
- The plaintiff had fabricated the circumstances of the incident in order to fraudulently obtain workers compensation benefits;
- The plaintiff had a significant pre-existing injury which was the real reason for his inability to continue with the demands of his employment.
In seeking to impugn the plaintiff’s credibility, the defendant’s lawyers highlighted several inconsistencies in the plaintiff’s version of events and corresponding medical documents as well as tendering into evidence no less than 85 hours of covert video surveillance of the plaintiff taken at various times over a 3 year period.
The defendant’s lawyers were inviting the judge to make a finding that the inconsistencies in the evidence and surveillance evidence established that the plaintiff had not been truthful and thereby any evidence given by the plaintiff should be rejected on the grounds of credibility/unreliability.
To the contrary, the court, in relation to the plaintiff’s credibility found that:
- The plaintiff was, in the view of the judge, an unsophisticated man;
- The plaintiff did not volunteer information;
- He did not provide detailed descriptions or a narrative style answer.
- The plaintiff often misunderstood questions, giving literal answers when the question was not directed to the literal meaning of the word.
- There was a tendency for the plaintiff to answer questions quickly regardless of whether he understood them.
- The plaintiff also had some difficulty with his memory particularly as it related to his ability to give an accurate medical history.
- Nevertheless, the judge considered the plaintiff to be an honest and sincere witness who had attempted, to the best of his ability, to communicate what he considered to be the truth.
It was this last finding that was key to the outcome of the case. The judge considered the plaintiff to be an “honest and sincere witness” notwithstanding that, at times, his evidence may have been demonstrated to be inaccurate.
When viewing the video surveillance evidence through the lens of accepting that the plaintiff was an “honest and sincere witness”, the judge determined that the video evidence actually demonstrated the difficulties the plaintiff was having as a result of his knee condition rather than establishing the opposite.
In accepting that the plaintiff was an “honest and sincere witness”, the judge determined that the injury had occurred in the workplace and in the manner in which described by the plaintiff. Accordingly, the judge found in the plaintiff’s favour and awarded him damages in the sum of $349 548.07.
The Important Takeaway
The important takeaway from this decision is that
the plaintiff’s credibility is key to the outcome.
This was a case where if a determination had been made by the judge that the plaintiff was less than truthful in the evidence that he had given, or had not given his evidence to the best of his ability, there were very fertile sources of alternative inferences and findings that the court could make that would have seen the plaintiff defeated in his claim.
In this case, it was a very real case of “all duck or no dinner” in that the plaintiff could have lost his case and been awarded nil compensation as opposed to the very advantageous result that was achieved.
There are many ways in which a plaintiff’s credibility may be attacked, including but not limited to, inconsistent versions of events, inaccurate medical histories provided to doctors, Facebook posts which are inconsistent with restrictions complained of and the failure to disclose pre-existing conditions.
So how do we, as personal injury lawyers deal with that? Up front and on the front foot. As the wise old saying goes, “the truth will set you free”. It is imperative for a plaintiff to give open and honest evidence, to disclose all relevant medical histories good or bad, and to be mindful that you are rarely more clever than the lawyers and medical experts examining your case.
In short, your creditability is key!
[1] [2020] QDC228
