Surveillance and other related issues of credibility

Barker v Casco Australia Pty Ltd (unreported, Mackay District Court)
Baulch J
7 October 2011

The facts

The worker sustained right biceps tendon and median nerve injury in November 2008

Liability was not in issue and was admitted by WorkCover Queensland. This was a quantum only trial.
The worker had not returned to work (RTW) since the date of the injury and continued to obtain totally incapacitated medical certificates throughout the statutory and common law claim process. She was also referred to Q-COMP RTW Assist, but unfortunately a RTW outcome was not achieved.

WorkCover obtained extensive surveillance of the worker and produced this at trial.
The worker stated she could not do the simplest of tasks, such as hold a phone up to her ear for an extended period or use a tin opener.

However, surveillance footage showed otherwise. Even though the worker had not worked, it appeared that she had some capacity. The significant surveillance evidence WorkCover obtained demonstrated the worker's capacity and clear inconsistencies by the worker throughout the claim.

Judgement

His Honour assessed quantum at $532,979.64 clear of the WorkCover Queensland statutory claim refund and awarded standard costs from the expiry of the mandatory final offers.

This was clearly influenced by his findings on the injured worker's credibility.

His Honour acknowledged that there were inconsistencies, but the injured worker had kept to the same story, so he accepted her evidence. He believed her to be a witness of truth and credit.

Interesting points

WorkCover had obtained extensive video surveillance footage of the worker undertaking activities that did not reflect her stated level of incapacity. While surveillance is a useful investigative tool to identify levels of capacity and activity, it won't necessarily stop or reduce a common law claim. This case is a perfect example of having undertaken surveillance successfully but it made no difference to the claim outcome because the Judge accepted the worker to be credible.

The real issue was that the injured worker did not achieve a successful return to work outcome during both the statutory and common law claims, even with a referral to Q-COMP RTW Assist. This worker was paid over $420,000.00 for both past and future economic loss. This was the majority of her damages settlement. This is a good example of the importance of achieving a RTW outcome for all injured workers. Making alternate duties available, providing flexible return to work arrangements and developing a positive return to work culture will lead to better outcomes for all parties involved.