Credibility of the worker was important in determining the extent of the injury

Richard Craig Adam v Skilled Group Limited and Anor [2013] QSC 7
McMeekin J, SCJ
8 February 2013

The worker's credibility was the main issue in this case. The worker's evidence of the incident was accepted as it was supported by a co-worker. The worker's evidence of the extent of his injury and incapacity was not accepted.

Background

The claim involved a labourer employed by a labour hire company and placed at a host employer's warehouse picking and packing milk products. The worker alleged he sustained a back injury using a steel hook to manually handle a stack of milk crates. The Defendants conceded that if the work was performed as alleged by the worker, the system of work was ergonomically unsound.

However, the Defendants disputed that the incident occurred in the manor alleged by the worker, and the worker suffered any injury as a result of the incident.

Liability

The worker gave evidence that he and other workers used hooks to drag stacks of milk crates across the floor, and that as he was using the hook, pulling towards himself with all of his strength, he twisted and felt pain in his back.

A co-worker supported this version of work practice at the warehouse.

The logistics co-ordinator of the warehouse denied that the workers used hooks, that hooks were supplied and stated that workers were instructed not to use hooks.

The evidence of the worker and his co-worker was accepted over that of the logistics co-ordinator on the basis that the logistics co-ordinator was only in the relevant part of the warehouse from time to time and therefore may not have seen workers using hooks when in fact they were.

Credibility and Quantum

The credibility of the worker was especially important in determining the extent of the injury and therefore monetary value of the worker's claim.

There were several issues of credit including:

• the worker's failure to mention a prior back injury to the employer or to doctors in circumstances where he had complained of ongoing symptoms which necessitated consultation with an orthopaedic surgeon;
• the worker's claim that he lied to doctors by pretending to be fully recovered when he was not in order to get medical certification to return to work;
• the worker's subsequent 4 weeks employment at a meat works which was not disclosed to the Defendants, doctors or an insurer to which he made a claim for a total and permanent disability payment despite direct questioning in at least one instance; and
• the variable presentation of the worker and his symptoms.

The judge stated that while not one of these credibility issues was of itself compelling, the combination of them caused him considerable concern.

The judge was satisfied there was an initial injury but was not prepared to accept there was a continuation of significant symptoms and restriction beyond a couple of months later when the worker was examined by both his general practitioner and a neurosurgeon who thought he had fully recovered.

The judgement against both the labour hire company and the host employer was $54,500.02.