In Schonell v Laspina, Prabucco and Co Pty Ltd  QSC 90 the case essentially came down to whether the Plaintiff’s version of events should be accepted. There were no witnesses to the incident and only the Plaintiff could provide evidence as to his mechanism of injury.
On 20 June 2008 the Plaintiff was working as a block layer at a construction site. He was required to work on scaffolding when performing this work. The scaffolding comprised of four planks placed upon two “A frames”. A ladder had been placed against the scaffolding for ease of access.
The Plaintiff alleges that as he was climbing down the ladder it “shunted”, his knee twisted, and he suffered an injury.
There was also an alternative version of events put at trial. This was that his foot became caught between the planks on the scaffolding after the ladder “shunted”.
The Plaintiff’s credibility was of prime importance at trial. It became apparent to Martin J that the Plaintiff was overstating the effect of his symptoms and this called the credibility of his other evidence into question. Further, during the trial, counsel for WorkCover pressed for disclosure of any statement the Plaintiff provided to his solicitors when initially providing instructions. It was revealed during the trial that the Plaintiff’s solicitors had a practice of not taking a signed statement from Plaintiff clients as they would be disclosable.
As a result, it was their practice to draft a version of events based on their client’s instructions and forward that to their client for amendment. During the trial it was maintained by the counsel for the Plaintiff that the document was not disclosable. However, Plaintiff’s counsel ended up disclosing part of the document. The judgment does not clarify whether the Plaintiff’s counsel conceded the document was disclosable.
In that document the Plaintiff made no mention of a rung on the ladder giving way, the ladder “shunting” or his foot becoming caught in the scaffolding. He merely mentioned the ladder’s outside legs “slipped out slightly” so he “braced his left leg on the … plank” which caused his weight to go “backwards slightly” and felt a “plastic ripping sensation in his knee”.
The Plaintiff accounted for the discrepancy in the version of events provided to his solicitors and his evidence at trial as being due to the difficulty explaining to his solicitors the mechanism of injury.
The Plaintiff alleged that the ladder had not been set up safely, or that the scaffolding had not been set up appropriately. In terms of the scaffolding, he claimed clamps should have been used to secure adjacent planks together (which would reduce flexion).
Martin J found the ladder had been set up safely. It was accepted the worker that set up the ladder had taken appropriate care in making sure the latch of the ladder had been activated to keep the legs of the ladder stable. That worker’s evidence was found to be credible.
There was no evidence available of any defect with the ladder at trial (apart from the Plaintiff’s version of events).
It was noted the Plaintiff’s initial reporting of his accident was not consistent with his foot becoming “caught” in the planks. The account given to the Plaintiff’s solicitors has been described above, and it was also noted that in the initial reporting of his accident to a doctor he mentioned that he “slipped,” and that caused his knee to twist.
As a result, the Plaintiff’s account of his accident was rejected and it was found no negligence on the part of his employer had been established.
Conclusion and Implications
Where there are no witnesses to an accident and a Plaintiff’s credibility is called into question, it is important to obtain as much documentation as possible about the reporting of the accident. This includes evidence from any person the Plaintiff reported their accident to, particularly contemporaneous to the event. Co-workers, treatment providers, other employers, and family/friends are generally the place to start these investigations.
Further, pressing for the disclosure of initial instructions provided to a Plaintiff’s solicitors can be critical where there are doubts as to a Plaintiff’s credibility, as there were in this case.