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Common law claims: What is evidence

This the second in our series of common law webinars, this session focussed on 'What is evidence'.

Damien van Brunschot, partner at Kaden Boriss Brisbane, provided a practical look at what is evidence:

  • the court system of oral evidence;
  • the two main bodies of evidence at trial: lay evidence and expert evidence; and
  • the role of documentary evidence.

You can listen and watch the webinar recording or view the presentation slides (PDF, 0.15 MB).  Questions and answers from the session are listed below.

Yes. Facebook accounts and posts are admissible provided they are relevant. Facebook posts can be relevant to the credit of an injured worker giving evidence, and can be relevant to the nature and extent of an injury and the level of disability claimed. The obligation on a party in litigation is to disclose all documents (including in an electronic format), if the documents are directly relevant to an allegation in dispute in the proceedings. In most contested common law claims, the nature and extent of the injury claimed is in dispute, meaning that Facebook posts can assume relevance.

The obligation on an employer to instruct and train is onerous. Employers need to take into account the inadvertence of their workforce. Employers are obliged to devise, implement and enforce a safe system of work and to ensure that appropriate instructions are given. In particular, an employer cannot assume that because an employee is experienced, there is no necessity to instruct or train an employee with respect to job requirements.  Although this duty is onerous, it is qualified in the sense that the duty can be effectively discharged if an employer can establish that reasonable instruction and training was provided, or that any failure to instruct or train did not cause or materially contribute to the injury. The question is not whether training is ‘enough’ but whether there is no breach of duty in the circumstances of a particular case—can it be established that all reasonable and appropriate training and instruction was provided such that the duty of care was not breached? The question of breach, that is whether reasonable care was provided, is a question which turns on the facts of each particular case.

Even employees with poor literacy should be asked to initial or sign induction and training to confirm that this has been provided. If instructions or directions are reduced in writing, and an employer knows or ought reasonably to know that an injured worker is illiterate or poorly literate, then there is an additional obligation on that employer to specifically demonstrate and instruct with respect to the system of work or a work requirement to ensure it is understood by that particular worker.

In personal injury trials, primacy is given to the specialist evidence in terms of a Judge assessing the nature and extent of the injuries suffered and the effects of those injuries. The various specialists called in personal injury trials are the specialists who have provided reports in the matter and they commonly include, for example, orthopaedic surgeons, neurologists, neurosurgeons and psychiatrists.

In certain trials however, General Practitioners can give important evidence with respect to relevant clinical history. Likewise, psychologists can give important evidence with respect to presentation and clinical history, although in assessing the nature and extent of the injury claimed, Courts generally place reliance upon the relevant specialists who have provided reports.

Common law claims can be defended if a Court is satisfied that all reasonable instruction and training was provided and as such the duty of care, albeit onerous, was not breached on the facts of the case, or alternatively any failure to instruct or train did not cause or materially contribute to the injury claimed.

Generally surveillance is obtained by WorkCover Queensland, the insurer. WorkCover will only commission surveillance if it accepts a recommendation made by a panel lawyer that surveillance is appropriate and warranted on a case by case basis. As a model litigant, WorkCover uses surveillance only in circumstances where it can be justified, for example, if there is significant suspicion with respect to fraud, overstatement or if there are significant issues of credibility that emerge. In terms of how surveillance video and photos will be received, this hinges upon a Court’s assessment of the injured worker’s credit and whether (and to what extent) the surveillance is significantly inconsistent with the disability or restrictions that the injured worker has described to various medical practitioners or other specialists.

Surveillance evidence can have significant impact on a claim if a Court is satisfied that the surveillance obtained is entirely inconsistent with the stated level of disability. On the other hand, there may be some occasions where a Court will determine that the Plaintiff is otherwise a witness of credit and the surveillance does not caste significant doubt on a Claimant’s veracity (for example, a Court may accept that the activities shown in surveillance were a ‘one off’ or that otherwise the Claimant was heavily medicated on the day surveillance was taken).

Although it is open for an employer to obtain surveillance and to incur that cost, an employer should be careful not to invade the privacy of an injured worker, but rather raise any credit or other concerns with the insurer, WorkCover Queensland, who will then give consideration to whether surveillance can be justified and is appropriate in the defence of a common law claim.

Emails are treated the same as any other document and are admitted in Court in the usual way. If there is a dispute as to the authenticity of an email, the author or the recipient of the email needs to be called to give evidence to confirm that they either sent or received an email. Otherwise emails are treated as another document, and emails are required to be disclosed if they are directly relevant to the allegations in dispute.

The general rule at a trial of a matter is that the individual witnesses who have previously provided statements or witness reports need to be called to give evidence in person under oath or by affirmation and this evidence can be tested in cross examination. As the memory of any witnesses will necessarily fade over time, it is important that all witnesses provide an accurate and contemporaneous account of what they witnessed, as the contemporaneous account will be relied upon by the witness in later oral evidence. If there is inconsistency in a previous statement then a person can be cross examined on that inconsistency. It is therefore important that all incident reports and witness statements be accurate, sufficiently detailed and obtained as soon as possible after an event or accident. If the witness statements or accounts provided closer in time to an accident run counter to any oral evidence given subsequently at any trial, this may adversely impact upon the credit of the witness.

For more information on the common law claim process, visit the dedicated common law services knowledge bank on our website. Our common law case studies are also a good resource to help you understand the practical application.

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.