By Kerrie Jackson
Defendants in workers compensation claims in Queensland may well feel encouraged by a number of favourable decisions in recent years. Irrespective of whether the pendulum has begun to swing, success at trial will ultimately come down to two key elements – case selection and case preparation.
This article considers one of the most important elements of case selection – analysing the evidence. Evidence can be broadly divided into 5 types:
- Witness evidence
- Documentary evidence
- Expert witness evidence
- Non-medical expert witness evidence
- Physical evidence
- Evaluate the quality of your witnesses
It is possible to place undue weight on the evidence of a particular witness simply because their evidence supports your theory of the case. For this reason, it’s critical to properly evaluate the quality and weight of each witnesses evidence, and how it was collected.
Courts begin with two presumptions – that the Plaintiff is telling the truth and that the Plaintiff is more likely to accurately recall the details of an event – because it happened to them and is therefore more memorable and important to them than any bystander. It would be very unwise to run a trial simply on the basis you have one star witness who contradicts the Plaintiff. In the majority of cases, you are unlikely to get a finding in your favour and the Court will simply prefer the Plaintiff.
When considering the quality and weight likely to be given to a witnesses’ evidence you need to consider:
- Was the witness an eyewitness to the event?
- Was their statement contemporaneously taken?
- Is it supported by the documentary evidence and other witness accounts?
- How is your witness likely to present?
- What is your witness’ relationship to the employer?
It’s important to ascertain your witnesses’ current circumstances prior to trial, and ascertain whether their relationship with the employer has changed. We have had many cases where a witness who was initially supportive has been made redundant, terminated or become disenfranchised and as a result becomes unwilling to assist or resiles from a previous statement.
To determine how reliable the evidence is, you also need to consider how and when it was collected. Consider:
- When was the statement taken?
- Was the statement signed?
- Who was it taken by?
- How much time has elapsed since the statement was taken?
- What is the relationship of the witness to the Plaintiff?
- What has the witness not been asked?
If a particular witnesses’ evidence is key to defending the claim, care should be taken to confirm whether the witness will give oral evidence consistent with their prior statement, particularly if that statement was prepared by the third party.
- The Value of Documentary Evidence
Documentary evidence can be more powerful than witness evidence. Before deciding to proceed to trial, it is critical to analyse the quality of your documentary evidence.
Here are some things to consider when evaluating your documentary evidence:
- If your case is that the Plaintiff received reasonable training and instruction, how do you prove it?
- How do you prove that the Plaintiff read and understood the document you say discharges your liability to him/her?
- Where is the signed acknowledgement to say that the Plaintiff received the document?
- If only the acknowledgement has been received, do you have a copy of the rest of the document?
- Where are the original documents?
- If the documents are signed by others, have you identified who those people are?
- Are the versions of the documents you have (training manuals, work instructions etc) the versions that existed at the time the Plaintiff received the training or instruction and/or (in the case of work instructions) the version that was in existence at the time of the incident?
Many cases have fallen apart because the Defendant cannot prove that the Plaintiff received the training, instruction or warning alleged.
- What about your experts?
The quality of the expert evidence, and the weight a Court gives to it will depend to a large extent on the history they have relied upon and the material they have been briefed with.
It is very common to see polarising views between doctors about impairment, disability and causation. When trying to determine which evidence is likely to be preferred, careful analysis is required of:
- What is the history taken by the doctor? Is it demonstrably untrue when compared with surveillance or Facebook?
- Have all relevant matters been disclosed by the Plaintiff – previous claims, drug history, previous onset of symptoms?
- Has the expert been briefed with all of the medical records?
- Have reports or other evidence come to light after the expert has provided his opinion that might lead him to change his opinion?
- How many times have they seen the Plaintiff?
- When was the last examination?
Care should also be taken to ensure that reports produced are in accordance with the UCPR.
- Non-Medical Expert Witnesses
I recently worked on a trial where the plaintiff used a non-medical expert witness who gave evidence that a piece of machinery in use by the employer would have required the Plaintiff to adopt an unsafe ergonomic posture. He was right, and this would have been very bad for us, except we were able to produce witness evidence and plant schematics that proved the equipment it wasn’t in use during the period the Plaintiff worked at the site.
Non-medical expert witnesses can be very valuable to your case, but you need to make sure you have thoroughly checked their evidence. Questions you might ask are:
- Has a site inspection been conducted?
- What was inspected?
- Has the expert relied upon a version of events given by the Plaintiff that is inconsistent with the pleaded case?
- Has the expert drawn assumptions in respect of the system of work or the incident that can be disproved by reference to objective evidence (measurements and photographs) or contemporaneous documents?
- When reaching his/her opinion, has the expert relied upon references and sources that are credible?
- Is the expert qualified to give the opinion and is the expert’s evidence likely to be admissible?
- Has your physical evidence been preserved?
Physical evidence in insurance and workers’ compensation trials can include allegedly defective equipment, including PPE (such as gloves or masks) and footwear.
Questions to ask yourself to assess the quality of your physical evidence before deciding whether to go to trial are:
- If critical to the successful defence of the claim, has the physical evidence been preserved?
- Where is it?
- Who is going to make it available at trial?
Too often critical evidence can get buried at the bottom of a filing cabinet, or misplaced by a client. Key physical evidence should be collected early and preserved for trial.
In Being Successful at Trial Part 2, I will look at what other factors you need to consider before heading to trial, including the importance of having counsel aligned to your view, the economics of proceeding to trial, legal merits and the importance of trials in overall strategic portfolio management.