In April 2012, the Cairns Supreme Court handed down the decisions of Hosmer v Cook Shire Council 1. In this case the Defendant made robust attacks on the credibility of the Plaintiff. Hosmer v Cook Shire Council is another notch in the expanding belt of Queensland decision addressing the credibility of Plaintiffs.
Hosmer v Cook Shire Council  QSC 091
The Plaintiff, a 41 year old horticulturalist, brought a claim against his employer, the Cook Shire Council (the Council), for damages in relation to an injury he sustained in 2008. The Plaintiff gave evidence that he was swinging a sledgehammer in the course of his employment duties and heard a ‘click noise’ and described it feeling ‘like something let go’ within his back.
The Council denied liability up until the morning of the trial, whereby it was admitted, and the Council narrowed their defence to focus on the extent of the alleged back injury, the significance of the Plaintiff’s pre-existing back condition and the Plaintiff’s credit.
The Council argued that the Plaintiff had not been truthful and had exaggerated the extent of his symptoms at the time of his medical assessments.
The Council argued that the Plaintiff failed to disclose his previous back injuries to one medical specialist and failed to disclose the extent of his pre 2008 injury symptoms (being time off work) to another medical specialist, who, on cross-examination at trail, altered his permanent impairment apportionment between pre and post 2008 injury, in light of the new evidence regarding the Plaintiff’s pre injury symptoms.
However, both specialists concurred that despite their acknowledgement of ‘a significant underlying degenerative condition’ that the injury was a result of the 2008 incident. Furthermore, neither were able to offer an opinion as to what would have been the extent or future effects of the pre-existing condition if the 2008 injury had not occurred.
The Council raised arguments in relation to the character and credit of the Plaintiff. The Council led evidence that the Plaintiff, despite being off work and in receipt of workers’ compensation benefits, had gained employment. His Honour, Henry J found that the Plaintiff ‘could no resist the temptation to secretly do some paid but physically undemanding work on the side’.
Evidence was led that, in his employment application for the second job the Plaintiff did not disclosure his 2008 back injury, even though the application specifically requested the notification of any health reasons which would prevent ‘regular manual handling of loads, including lifting, bending, stretching and twisting or any pre-existing health conditions’.
The Council also led evidence, that during his period of new employment the Plaintiff attended upon a doctor to obtain a workers’ compensation in order to continue receiving his workers’ compensation benefits. His Honour concluded that it was evident that the Plaintiff did not disclose his new employment as the doctor certified him ‘fit for undemanding work during restricted hours’.
Further evidence of the Plaintiff’s ongoing non disclosure revealed in that he applied and was successful in obtaining a total permanent disability payout under his superannuation policy. To apply for the payout the Plaintiff was required to obtain a further medical certificate. Again, it was found that the Plaintiff had failed to disclose his new employment. Furthermore, it was found that the Plaintiff failed to disclose his employment to the Medical Assessment Tribunal, his Occupational Therapist, Centrelink Job Capacity Assessors and in his Notice of Claim for Damages.
Henry J commented that the Plaintiff has exercised ‘deliberate lack of candour’ which along with conscious non disclosure would be ‘borne in mind’ when considering the Plaintiff’s evidence but ‘were not destructive of his credibility generally’.
In a final attack on the Plaintiff’s credit, the Council raised the Plaintiff’s ‘life history and circumstances’. In particular, the Plaintiff’s occupational history, in which he changed employer once a year. Henry J did not find merit in this argument, concluding that the Plaintiff’s sporadic employment history was not out of character for his occupation as a labourer. The Council raised issues of possible Centrelink fraud in relation to non disclosure of a potential de-facto relationship, which was not accepted by the court.
Despite the seemingly dismissive nature of his Honour’s comments in relation to the Plaintiff’s credit, the Council’s vigorous barrage on credit issue did not go unconsidered by his Honour and was evident in the assessment of economic loss.
In determining past economic loss Henry J applied a 35% discount for contingencies for his pre-existing degeneration and a 10% reduction for the possibility of the Plaintiff securing less demanding employment prior to onset of his pre-existing condition.
His Honour, in assessing future economic loss, reduced the expected retirement age of the Plaintiff to 62 and also applied a 55% discount for overall contingencies.
2011 Decisions: Credit and Assessment of Damages
2011 bore witness to a number of decisions whereby significant quantum reductions were applied in cases where the credibility of Plaintiffs suffered vigorous attacks at trial.
The case of Geary v REJV Services Pty Ltd & Ors2 was heard before his Honour, North J in the Townsville Supreme Court. The Plaintiff suffered a back injury during the course of his employment and the Defendants admitted liability prior to trial.
The issue before the court was in relation to the nature and extent of the Plaintiff’s injuries and extent of the Plaintiff’s pre-accident health.
The Defendants attacked the Plaintiff’s credit, raised arguments in relation to pre- incident symptomology and the ‘extent to which alcohol played a role in his life’. The Defendant alleged that the Plaintiff was aggressive and violent, calling evidence from his former partner. The Defendants also attacked the Plaintiff’s credit in relation to his use of illicit drugs, which the Plaintiff denied. The Defendant’s produced drug test results from 2002 which identified amphetamine use and for which the Plaintiff had no explanation, but maintained his denial of illicit drug use. North J did not give much weight to either attack on the Plaintiff’s credit. However, consideration was given to the substantial amount of evidence outlining a significant history of the Plaintiff’s misleading employers.
North J concluded that it had been established that the Plaintiff was prepared to mislead both pre and post accident employers and as such he was satisfied that the Plaintiff’s conduct warranted cautioned when considering the Plaintiff’s evidence. However, his Honour also noted that the Plaintiff’s post accident work history was ‘quite impressive’ and acknowledged that he had been active in pursing and continuing employment despite experiencing pain in carrying out employment duties. North J commented that this went towards the Plaintiff’s credit.
Ultimately, when assessing past economic loss, his Honour significantly discounted his assessment by 80%.
In the case of Rossi v Westbrook & Anor 3, a claim for damages was brought by the Plaintiff following a car accident that occurred in 2008. The Plaintiff suffered a cervical spine injury and a psychological injury. Liability was admitted prior to trail and the issue before the court was the Plaintiff’s claim for damages, specifically her significant claim for gratuitous domestic assistance.
The Plaintiff was assessed by an occupational therapist, who concluded that as a result of the accident the Plaintiff would be required to limit her working hours to 20 per week and would also require a minimum of 7 hours per week of ongoing gratuitous assistance.
The Plaintiff alleged that following the accident she required, at minimum, 10 hours domestic assistance which had been provided to her by her then boyfriend and his mother. The Defendants called both the Plaintiff’s ex-boyfriend and his mother and neither supported the Plaintiff’s alleged requirement for extra assistance following the subject incident. The Plaintiff later married and she alleged her husband had continued to provide significant domestic assistance. The Plaintiff’s husband was not called to give evidence and his Honour was critical that no evidence was available in relation to the assistance he allegedly provided to the Plaintiff.
His Honour held that the evidence of the past boyfriend and his mother demonstrated that the occupational therapist’s assessment was based on the Plaintiff’s exaggeration of her requirement for domestic assistance.
The Plaintiff was not working at the time of the accident but about two weeks later obtained employment in a jewellery store. The Plaintiff alleged that she suffered pain carrying out this work, however, no evidence was produced to support this.
About 2 years later the Plaintiff ended this employment (not due to her injury) and commenced unpaid work for her then boyfriend (now husband) in his service station. At the time of trial the Plaintiff was involved in her husband’s sign-writing business, however, the court was unclear of her role in the business. His Honour made no allowance for gratuitous care and no allowance economic loss (past or future).
In March 2011, the Queensland Court of Appeal heard the appeal of Lusk & Anor v Sapwell 4. In 2005 the Respondent was assaulted at work by an elderly costumer. The Respondent alleged she suffered psychological injuries as a result of the assault.
On first instance the claim was successful. It was held that the employer had failed to adopt a reasonably response to the reasonably foreseeable risk and accordingly had breach their duty of care.
On Appeal, the primary judgment was set aside. Their Honours found that the Respondent had not proven that her injury arose from a breach of duty by the Defendant.
In relation to the Respondent’s credit, arguments were raised with respect her discrepancies in reporting to different specialists. However, more significantly, evidence was led that in at trail the Plaintiff had attended a job interview the Tuesday prior to hearing. On cross-examination she was asked how many job interviews she had attended and she failed to mention the interview she attended on the Tuesday prior to trial. When specifically asked on cross-examination if she had attended an interview on the Tuesday before the trail, she claimed that she had forgotten about it. Furthermore, it was raised that in all interviews the Plaintiff had failed to mention any occupational restrictions resulting from her psychiatric injury.
Muir J made reference to the inaccuracy in the trial judge’s finding that the Plaintiff ‘appeared to be a generally truthful witness’. His Honour stated based on the Plaintiff not disclosing the interview and her psychological injury he would have reduced future economic loss.
These judgments illustrate the courts’ willingness to, at times, significantly reduce certain heads of damage, in circumstance where the Plaintiff’s credit and reporting of his/her symptoms less than truthful.
What is important to bear in mind when faced with claims which comprise of credit, exaggeration and significant unreported/ downplayed pre-existing conditions, is that these factors, although important, are simply a component of a Plaintiff’s claim.
There is a temptation to be blindsided by damaging evidence against a Plaintiff, but caution must be exercised in applying discounts to quantum calculations and particularly in making formalised offers which are based on discounts due to credit issues. What needs to be remembered is, ultimately, an assessment of damages is determined not by a precise formula, but by the court on a case by case basis. Positively, these cases do provide favourable precedents for Defendants, and hopefully will provide a strong deterrence to Plaintiffs who are failing to disclose vital information and exaggerating symptoms.