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Worker’s credibility issues defeat damages claim

A judge has found that the employer was not liable to pay damages.
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Worker’s credibility issues defeat damages claim

Worker’s credibility issues defeat damages claim

4 September 2020

By Gaby Grammeno

A Supreme Court judge has rejected a worker’s claims regarding the cause and impact of her workplace shoulder injury, finding that her employer was not liable to pay her damages. Conflicting accounts of what had happened persuaded the judge to question the woman’s credibility and reject her version of events.


The incident

The woman was employed on a full-time casual basis at a coal mine in the Hunter Valley of New South Wales. Her duties included driving a dump truck along unsurfaced haul roads linking the mine to the place where overburden from the mine was dumped.

In October 2013, she was driving a Caterpillar 793 dump truck – a huge vehicle over seven metres wide and 13 metres long, with a payload capacity of over 200 tonnes – when (she claimed) the truck hit a ‘soft spot’ in the road (similar to a car hitting a pot hole) and she was violently jolted in the cabin of her truck. As a result, she said she sustained significant injuries, including to her right shoulder, that substantially restricted the use of her right arm.

She successfully claimed workers compensation for the injury, though she appeared to have made conflicting claims as to whether she felt pain immediately, or five hours later.

When the workers comp payments were discontinued, the woman filed a substantial claim for common law damages, alleging that the mining company’s failure to detect and repair the ‘soft spot’ in the road was negligent. The case was heard in the Supreme Court of New South Wales.


In court

The mining company denied it had been negligent. It argued that the incident alleged by the woman did not occur, as an inspection of the haul roads on the morning of the incident had not found any ‘soft spot’ at the claimed location.

Counsel for the woman – who was no longer employed at the mine – submitted that the judge either had to find the mining company liable to pay damages, or conclude that the woman was ‘a deceptive liar who had, from the day of the event, constructed a fraud on the company to obtain compensation and damages’. He also maintained the company had admitted that she’d been injured when it accepted her workers compensation claim.

The judge disagreed, noting that the acceptance of such a claim only amounts to an informal admission that the worker sustained an injury in the course of her employment, whereas there are different issues as to what is sufficient to find a business liable in the case of a claim for damages.

After hearing the evidence of procedures at the mine to check the safety of the haul roads and highlighting a number of disparities between different accounts, the judge called the woman’s credibility into question. She cited the view that in injury cases ‘with every day that passes, the memory becomes fainter and the imagination becomes more active’ and that contemporary accounts tend to outweigh later re-tellings of what happened.

Ultimately, the judge came to regard the woman as unreliable rather than strictly dishonest. She said that the former employee ‘appeared to have constructed a narrative which would make the [company] responsible for many of her present difficulties. This led to her either deliberately, or unwittingly, underplaying the importance of other factors such as her pre-existing low back pain, obesity and anxiety and depression’ as well as other factors that did not support the woman’s claim.

Her unreliability ‘led to her reconstructing the narrative of the events of 19 October 2013 … to enhance the impact of the event and the size of the imperfection in the road’, she said.

The judge was not convinced that the dump truck’s jolting had caused a serious injury. Rather, she said the woman appeared to have encountered a relatively minor rough patch in the road and suffered no more than a soft tissue injury which had healed some months later. In the judge’s opinion, the injury had made little material difference to the woman’s overall wellbeing and capacity, which was dominated by pre-existing psychological issues and spinal problems unrelated to the accident, but she’d exaggerated both the incident and its consequences in order to gain compensation and a damages payout.

For these reasons the judge dismissed her claim, and ordered the woman to pay the company’s legal costs.

The bottom line: An employer’s acceptance of a workers compensation claim does not necessarily imply the employer was negligent in causing an injury. Other factors such as the credibility of the parties involved must also be weighed.


Read the judgment

Kerr v Whitehaven Coal Mining Ltd [2020] NSWSC 1096 (19 August 2020)

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