During Part 1 of this topic, we explained how lumbar spine injuries are assessed in the NSW workers compensation scheme,...
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Baldock-Davies v Popham & AAI Limited [2023] QSC 24
The Plaintiff, Ms Meah Baldock-Davies, was a twenty (20) year old woman who suffered personal injuries as a consequence of being struck by a motor vehicle driven by the First Defendant, whilst she was walking along Sunshine Boulevard, Broadbeach Waters.
The Plaintiff suffered injuries to her cervical spine, lumbar spine, three (3) fractured ribs, pelvic contusions, pneumothorax, foot injuries and surgical scarring, due to the First Defendant driving the motor vehicle into the Plaintiff’s back, causing her to be flipped onto the motor vehicle’s windscreen, before falling to the ground, where a wall then fell on top of her.
The credibility and reliability of evidence in personal injury cases is imperative, particularly where damages are largely subjective when considering the degree of incapacity, pain and discomfort experienced and reported by the Plaintiff during the history of the claim.
In circumstances where a Plaintiff’s evidence is found to be unreliable, the question arises of whether any of the medical, rehabilitation or Independent Medico-Legal evidence can be tendered as credible.
The Court must be satisfied that the Plaintiff’s reporting of matters is both honest and reliable. The Court’s fact-finding power, including facts on the credibility of witnesses, is limited however, and can be overturned by Appellant Courts, in circumstances where the Court has:-
The Second Defendant mounted its argument in this matter upon the credibility and reliability of the Plaintiff’s evidence at trial, as well as her reporting to medical providers and experts. Submitting that the Plaintiff had “overstated the nature and extent of her symptoms and the impact of those symptoms upon her capacity to undertake her daily activities.”
At trial Justice Cooper categorised the Second Defendant’s argument under five (5) specific key components, including:-
Firstly, the First Defendant identified a number of discrepancies or gross exaggerations between the description of the Plaintiff’s symptoms given to Medico-Legal experts and the notes of her treating Physiotherapist and General Practitioner. Specifically, the Plaintiff suggested to Neurosurgeon, Dr Campbell that she was experiencing headaches on a daily basis, which is contrary to the Plaintiff’s Neurosurgical Hospital records where she denied any symptoms of headaches.
Moreover, the Plaintiff suggested that some eleven (11) months after the incident her symptoms had increased in frequency and intensity. The Court found “it difficult to accept” that the Plaintiff would not have consulted her General Practitioner, sought pain relief or physiotherapy, had she experienced increased pain.
Finally, the Plaintiff reported to the Defendant’s Medico-Legal Expert that she was required to wear a neck brace for some three (3) months after the incident, when in reality she wore the brace for about two and a half (2.5) weeks.
Secondly, the Plaintiff reported to the Medico-Legal Experts that following the incident she was working no more than twenty-five (25) hours per week, due to difficulty she experienced when working increased hours. This was contrary to the Plaintiff’s financial records which evidenced she had in fact increased her work hours following the incident.
Thirdly, the Plaintiff had recently returned to playing competitive soccer, which the Plaintiff asserted at trial was in Division 2, a lower and less competitive division. The Plaintiff further alleged on stand that she had only been capable of playing approximately thirteen (13) games, due to the pain she would experience in her back following training or agame, which would often leave the Plaintiff bedridden for a number of days.
The records tendered by the Second Defendant evidenced that the Plaintiff in fact played eighteen (18) out of the twenty (20) games of the season and was actually competing in the highest division, Division 1. Justice Cooper found that the photograph tendered by the Second Defendant; posted by Burleigh Heads Soccer Club on social media, ‘liked’ by the Plaintiff and captioned “senior Division 1 women’, was unequivocal evidence of the fact that the Plaintiff had been dishonest.
Furthermore, the Second Defendant tendered employment records, which depicted the Plaintiff had worked a shift just a few hours after competing.
The Second Defendant also tendered surveillance of the Plaintiff playing soccer where she appeared to play without any apparent restrictions, including running, kicking, heading the ball, and throwing the ball with both of her arms extended overhead.18 The Plaintiff’s Independent Medico-Legal Expert Neurosurgeon, Dr Campbell took the view that the footage of the Plaintiff playing soccer conveys she is more able bodied than she had reported to him and in fact, “suffered no impairment from the injury to either her cervical spine or lumbar spine.”
Fourthly, the Second Defendant argued that the Plaintiff’s evidence suggesting that she was forced to leave her employment as a receptionist due the pain and discomfort prolonged periods of sitting causes her, was difficult to reconcile with her ability to sit for several hours whilst giving her witness evidence at trial.
His Honour agreed with the fact, stating that he had “not observed Ms Baldock-Davis show any sign of pain or discomfort when she was giving evidence.”
Fifthly, the Second Defendant relied upon various pieces of evidence posted to social media depicting the Plaintiff engaging in activities which were inconsistent with her witness evidence to the nature and severity of her accident-related injuries.
Specifically, the following footage was posted to social media:
Conclusively, the Supreme Court took the view that the Plaintiff failed to give full and frank answers during evidence-in-chief and in cross-examination. For these reasons, Justice Cooper was of the opinion that the evidence regarding the nature and severity of the Plaintiff’s injuries and the associated impact upon her daily living, was unreliable and overstated.
Ultimately, the Court did “not accept that Ms Baldock-Davies’ accident injuries restricted her in the manner and to the extent she stated in her evidence.”
The Plaintiff was awarded $40,653.44 in damages, general damages of $21,510.00 for her moderate lumbar spine injury being the primary damage.
The Plaintiff was not awarded damages for past or future care and assistance, nor was she awarded an amount for future economic loss in circumstances where the Court found that “Ms Baldock-Davies has not established that her earning capacity has in fact been diminished by reason of her accident injuries.”
Moreover, an adverse cost order was made against the Plaintiff; in the order to pay the Second Defendant’s standard costs incidental to the proceeding
Whilst evidently, section 212 of the Uniform Civil Procedure Rules 1999 (Qld) raises significant risks at trial in relation to undisclosed CCTV Footage and/or other fraud related evidence. Ultimately, the Plaintiff’s testimony weighs heavy upon the Court’s discretion for findings of fact on credibility.
The historical principle upon which our Courts are centred, “par delictum”, or otherwise known as the ‘clean hands doctrine’, prescribes that a party should not obtain satisfaction from a Court of Law where his/her own conduct is wrongful. Where a Plaintiff is considered to be dishonest on the stand, despite the documentary evidence presented depicting the contrary, the Court will not take kindly to the Plaintiff’s inability to give a full or frank account of events.
As evidenced in this case, despite the Plaintiff suffering from physical injuries as a consequence of a not insignificant pedestrian/motor-vehicle accident, which resulted in the Plaintiff trapped under a collapsed wall; the Court ultimately found that on the balance of probabilities her testimony could not be accepted as a reliable or credible account of events to establish an award for future loss of income, or care and assistance. A Plaintiff’s credibility to the court is essential for a successful outcome at trial and honesty is therefore paramount during the claim process.
Please reach out to the author and the team at Littles Lawyers for further advice on Personal Injury, Public Liability, Workcover, Motor Vehicle, Medical Negligence, Total Permanant Disability (“TPD”) or Abuse Claims. Further CTP Motor Vehicle Accident information or Case Law Updates written by the author, Claudia Douglas, can be found on our website.
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